exv4w1



 






Exhibit 4.1




Execution Version




 





PROLOGIS




as Issuer




and




U.S. BANK NATIONAL ASSOCIATION




as Trustee




FIFTH SUPPLEMENTAL INDENTURE




Dated as of November 8, 2007




1.875% Convertible Senior Notes due 2037




 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I DEFINITIONS
	 	 	2	 
	Section 1.01 Relation to Base Indenture
	 	 	2	 
	Section 1.02 Definitions
	 	 	2	 
	ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
	 	 	8	 
	Section 2.01 Designation and Amount
	 	 	8	 
	Section 2.02 Form of Notes
	 	 	8	 
	Section 2.03 Date and Denomination of Notes; Payments of Interest
	 	 	8	 
	Section 2.04 Intentionally Omitted
	 	 	9	 
	Section 2.05 Execution, Authentication and Delivery of Notes
	 	 	9	 
	Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions
on Transfer; Depositary
	 	 	9	 
	Section 2.07 Additional Notes; Repurchases
	 	 	10	 
	Section 2.08 No Sinking Fund
	 	 	10	 
	Section 2.09 Ranking
	 	 	11	 
	ARTICLE III REDEMPTION
	 	 	11	 
	Section 3.01 Right to Redeem
	 	 	11	 
	Section 3.02 Selection of Notes to be Redeemed
	 	 	11	 
	Section 3.03 Notice of Redemption
	 	 	11	 
	ARTICLE IV PARTICULAR COVENANTS OF THE COMPANY
	 	 	12	 
	Section 4.01 Payment of Principal and Interest
	 	 	12	 
	Section 4.02 Maintenance of Office or Agency for Conversion Agent
	 	 	13	 
	Section 4.03 Intentionally Omitted
	 	 	13	 
	Section 4.04 Intentionally Omitted
	 	 	13	 
	Section 4.05 Exclusion of Certain Provisions From Base Indenture
	 	 	13	 
	ARTICLE V DEFAULTS AND REMEDIES
	 	 	13	 
	Section 5.01 Events of Default
	 	 	13	 
	Section 5.02 Article Five of Base Indenture
	 	 	14	 
	ARTICLE VI SUPPLEMENTAL INDENTURES
	 	 	14	 






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	 	 	Page
	Section 6.01 Supplemental Indentures Without Consent of Noteholders
	 	 	14	 
	Section 6.02 Modification and Amendment with Consent of Noteholders
	 	 	14	 
	Section 6.03 Effect of Supplemental Indentures
	 	 	14	 
	Section 6.04 Article Nine of Base Indenture
	 	 	14	 
	ARTICLE VII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	15	 
	Section 7.01 Company May Consolidate, Etc. on Certain Terms
	 	 	15	 
	ARTICLE VIII CONVERSION OF NOTES
	 	 	15	 
	Section 8.01 Conversion Privilege
	 	 	15	 
	Section 8.02 Conversion Procedures.
	 	 	19	 
	Section 8.03 Reserved
	 	 	23	 
	Section 8.04 Adjustment of Conversion Rate
	 	 	23	 
	Section 8.05 Shares to be Fully Paid
	 	 	31	 
	Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale
	 	 	31	 
	Section 8.07 Certain Covenants
	 	 	33	 
	Section 8.08 Responsibility of Trustee
	 	 	33	 
	Section 8.09 Notice to Holders Prior to Certain Actions
	 	 	33	 
	Section 8.10 Shareholder Rights Plans
	 	 	34	 
	Section 8.11 Ownership Limit
	 	 	34	 
	ARTICLE IX REPURCHASE OF NOTES AT OPTION OF HOLDERS
	 	 	35	 
	Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates
	 	 	35	 
	Section 9.02 Repurchase at Option of Holders Upon a Fundamental Change
	 	 	39	 
	ARTICLE X MISCELLANEOUS PROVISIONS
	 	 	42	 
	Section 10.01 Ratification of Base Indenture
	 	 	42	 
	Section 10.02 Provisions Binding on Company’s Successors
	 	 	42	 
	Section 10.03 Official Acts by Successor Corporation
	 	 	42	 
	Section 10.04 Addresses for Notices, Etc
	 	 	42	 
	Section 10.05 Governing Law
	 	 	43	 
	Section 10.06 Non Business Day
	 	 	43	 
	Section 10.07 Benefits of Indenture
	 	 	43	 
	Section 10.08 Table of Contents, Headings, Etc
	 	 	43	 
	Section 10.09 Execution in Counterparts
	 	 	43	 
	Section 10.10 Trustee
	 	 	43	 
	Section 10.11 Further Instruments and Acts
	 	 	43	 






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	 	 	Page
	Section 10.12 Waiver of Jury Trial
	 	 	44	 
	Section 10.13 Force Majeure
	 	 	44	 






iii 









 





FIFTH SUPPLEMENTAL INDENTURE




1.875% Convertible Senior Notes due 2037



THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of November 8, 2007 (this “Fifth Supplemental
Indenture”), by and between PROLOGIS (formerly ProLogis Trust and prior thereto Security Capital
Industrial Trust), a real estate investment trust organized under the laws of the State of Maryland
having its principal office at 4545 Airport Way, Denver, Colorado 80239 (the “Company”), and U.S.
BANK NATIONAL ASSOCIATION (as successor in interest to State Street Bank and Trust Company), having
a corporate trust office at Corporate Trust Services, 100 Wall Street, Suite 1600, New York, New
York 10005, as successor Trustee (in such capacity, the “Trustee”) under the Base Indenture
(defined below).




RECITALS OF THE COMPANY:




     The Company and the Trustee have heretofore entered into an Indenture dated as of March 1,
1995, as amended by a First Supplemental Indenture dated as of February 9, 2005, a Second
Supplemental Indenture dated as of November 2, 2005, a Third Supplemental Indenture, dated as of
November 2, 2005, and a Fourth Supplemental Indenture dated as of March 26, 2007 (as so
supplemented hereinafter called the “Base Indenture”), between the Company and the Trustee,
providing for the issuance by the Company from time to time of its senior debt securities
evidencing its unsubordinated indebtedness (the “Securities”).



     Section 301 of the Base Indenture provides for various matters with respect to any series of
Securities issued under the Base Indenture to be established in an indenture supplemental to the
Base Indenture.



     Section 901(7) of the Base Indenture provides for the Company and the Trustee to enter into an
indenture supplemental to the Base Indenture to establish the form or terms of Securities of any
series as provided by Sections 201 and 301 of the Base Indenture without the consent of the Holders
of any Securities.



     WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
1.875% Convertible Senior Notes due 2037 (hereinafter referred to as the “Notes”), initially in an
aggregate principal amount not to exceed $1,000,000,000 (or $1,150,000,000 if the Underwriters
exercise their option to purchase additional Notes in full as set forth in the Underwriting
Agreement), and in order to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Board of Trustees of the Company has duly authorized the
execution and delivery of this Fifth Supplemental Indenture; and



     WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, a form of
assignment, a form of the Fundamental Change Repurchase Notice, a form of option to elect repayment
on a Put Right Repurchase Date, a form of conversion notice and certificate of transfer to be borne
by the Notes are to be substantially in the forms hereinafter provided for; and



     All things necessary to make the Base Indenture, as hereby modified, a valid agreement of the
Company, in accordance with its terms, have been done.



 









 





     NOW THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:



     For and in consideration of the premises and of the covenants contained herein and in the Base
Indenture, the Company and the Trustee covenant and agree, for the equal and proportionate benefit
of all Holders of the Notes issued on or after the date of this Fifth Supplemental Indenture, as
follows:



ARTICLE I




DEFINITIONS




     Section 1.01 Relation to Base Indenture. This Fifth Supplemental Indenture constitutes an
integral part of the Base Indenture.



     Section 1.02 Definitions. For all purposes of this Fifth Supplemental Indenture, except as
otherwise expressly provided for or unless the context otherwise requires:



          (a) Capitalized terms used but not defined herein shall have the respective meanings assigned
to them in the Base Indenture;



          (b) Terms defined both herein and in the Base Indenture shall have the meanings assigned to
them herein;



          (c) All references herein to Articles and Sections, unless otherwise specified, refer to the
corresponding Articles and Sections of this Fifth Supplemental Indenture; and



          (d) All other terms used in this Fifth Supplemental Indenture, which are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act (except as herein
otherwise expressly provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the
date of the execution of this Fifth Supplemental Indenture. The words “herein,” “hereof,”
“hereunder,” and words of similar import refer to this Fifth Supplemental Indenture as a whole and
not to any particular Article, Section or other subdivision. The terms defined in this Article
include the plural as well as the singular.



     “Additional Shares” shall have the meaning specified in Section 8.01(g).



     “Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which
banks in The City of New York or The City of Boston are not required or authorized by law or
executive order to be closed.



     “cash percentage” shall have the meaning specified in Section 8.02(a)(4).



     “cash percentage notice” shall have the meaning specified in Section 8.02(a)(4).



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     “close of business” means 5:00 p.m. (New York City time).



     “Common Shares” means, subject to Section 8.06, common shares of beneficial interest of the
Company, par value $0.01 per share, at the date of this Fifth Supplemental Indenture or shares of
any class or classes resulting from any reclassification or reclassifications thereof and that have
no preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and that are not subject to
redemption by the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable shall be substantially in the proportion
which the total number of shares of such class resulting from all such reclassifications bears to
the total number of shares of all such classes resulting from all such reclassifications.



     “Company” means ProLogis, a Maryland real estate investment trust, and subject to the
provisions of Article VII, shall include its successors and assigns.



     “Company Put Right Notice” shall have the meaning specified in Section 9.01(c).



     “Company Put Right Notice Date” shall have the meaning specified in Section 9.01(c).



     “Conversion Agent” shall mean the Trustee or any successor office or agency where the Notes
may be surrendered for exchange.



     “Conversion Date” shall have the meaning specified in Section 8.02(c).



     “Conversion Obligation” shall have the meaning specified in Section 8.01(a).



     “Conversion Price” means as of any date $1,000 divided by the Conversion Rate as of such date.



     “Conversion Rate” shall have the meaning specified in Section 8.01(a).



     “Conversion Trigger Price” shall have the meaning specified in Section 8.01(c).



     “Daily Conversion Value” means, for each of the 20 consecutive Trading Days during the
Observation Period, one-twentieth (1/20) of the product of (a) the applicable Conversion Rate and
(b) the Daily VWAP of the Common Shares (or the Reference Property, if applicable) on such day.



     “Daily Settlement Amount,” for each of the 20 Trading Days during the Observation Period,
shall consist of:



     (i) cash equal to the lesser of $50 and the Daily Conversion Value relating to such day; and



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     (ii) if such Daily Conversion Value exceeds $50, a number of Common Shares equal to (A) the
difference between such Daily Conversion Value and $50, divided by (B) the Daily VWAP of the Common
Shares for such day, subject to the Company’s right to deliver cash in lieu of all or a portion of
such Common Shares pursuant to Section 8.02(a)(4) hereof.



     “Daily VWAP” for the Common Shares means, for each of the 20 consecutive Trading Days during
the Observation Period, the per share volume-weighted average price as displayed under the heading
“Bloomberg VWAP” on Bloomberg page PLD <equity> AQR in respect of the period from 9:30 a.m.
to 4:00 p.m. (New York City time) on such Trading Day (or if such volume-weighted average price is
unavailable, the market value of one Common Share on such Trading Day as the Board of Trustees
determines in good faith using a volume-weighted method).



     “Debt Instrument “ means any bond, debenture, note, mortgage, indenture (including the
Indenture) or other instrument.



     “Depositary” means, with respect to the Notes issuable or issued in whole or in part in global
form, the person specified in the Base Indenture as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions
of this Fifth Supplemental Indenture, and thereafter, “Depositary” shall mean or include such
successor.



     “Distributed Property” shall have the meaning specified in Section 8.04(c).



     “Dividend Threshold Amount” shall have the meaning specified in Section 8.04(d).



     “Effective Date” shall have the meaning specified in Section 8.01(g)(1).



     “Event of Default” means, with respect to the Notes, any event specified in Section 5.01,
continued for the period of time, if any, and after the giving of notice, if any, therein
designated.



     “Ex-Date” means, with respect to any issuance or distribution on the Common Shares or any
other equity security, the first date on which the shares of Common Shares or such other equity
security trade on the applicable exchange or in the applicable market, regular way, without the
right to receive such issuance or distribution.



     “Ex-Dividend Date” means, with respect to Section 8.01(e), the first date upon which a sale of
the Common Shares does not automatically transfer the right to receive the relevant dividend from
the seller of the Common Shares to its buyer.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



     “Fundamental Change” shall be deemed to occur upon the consummation of any transaction or
event (whether by means of an exchange offer,



4









 




liquidation, tender offer, consolidation, merger,combination, reclassification, recapitalization or otherwise) in connection with which more than
50% of the Common Shares are exchanged for, converted into, acquired for or constitutes solely the
right to receive, consideration which is not at least 90% common stock (or American Depositary
Shares representing shares of common stock) that is: (a) listed on, or immediately after the
consummation of such transaction or event, will be listed on, a United States national securities
exchange or (b) approved, or immediately after such transaction or event will be approved, for
listing or quotation on any United States system of automated dissemination of quotations of
securities prices.




     “Fundamental Change Company Notice” shall have the meaning specified in Section 9.02(b).



     “Fundamental Change Repurchase Date” shall have the meaning specified in Section 9.02(a).



     “Fundamental Change Repurchase Notice” shall have the meaning specified in Section 9.02(a)(i).



     “Fundamental Change Repurchase Price” shall have the meaning specified in Section 9.02(a).



     “Global Note” shall have the meaning specified in Section 2.06(e).



     “Independent Securities Dealer” shall have the meaning specified in Section 8.01(b).



     “interest” means, when used with reference to the Notes, any interest payable under the terms
of the Notes.



     “Interest Payment Date” means May 15 and November 15 of each year, beginning on May 15, 2008.



     “Last Reported Sale Price” means, with respect to the Common Shares or any other security for
which a Last Reported Sale Price must be determined, on any date, the closing sale price per share
of the Common Shares or unit of such other security (or, if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either case, the average of the
average last bid and the average last ask prices) on such date as reported in composite
transactions for the principal U.S. securities exchange on which the Common Shares or such other
security are traded. If the Common Shares or such other security are not listed for trading on a
United States national or regional securities exchange on the relevant date, the Last Reported Sale
Price shall be the last quoted bid price per share of Common Shares or such other security in the
over-the-counter market on the relevant date, as reported by the National Quotation Bureau or
similar organization. If the Common Shares or such other security are not so quoted, the Last
Reported Sale Price shall be the average of the mid-point of the last bid and ask prices for the
Common Shares or such other security on the relevant date from each of at least three nationally
recognized independent investment banking firms selected from time to time by the Board of Trustees of the Company for that purpose. The Last Reported Sale Price
shall be determined without reference to extended or after hours trading.



5









 





     “Market Disruption Event” means the occurrence or existence for more than a one-half hour
period in the aggregate on any scheduled Trading Day for the Common Shares of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
stock exchange or otherwise) in the Common Shares or in any options, contracts or future contracts
relating to the Common Shares, and such suspension or limitation occurs or exists at any time
before 1:00 p.m. (New York City time) on such day.



     “Maturity Date” means November 15, 2037.



     “Measurement Period” shall have the meaning specified in Section 8.01(b).



     “Merger Event” shall have the meaning specified in Section 8.06.



     “Noteholder” or “Holder” or “holder,” as applied to any Note, or other similar terms (but
excluding the term “beneficial holder”), means any person in whose name at the time a particular
Note is registered on the Security Register.



     “Notice of Conversion” shall have the meaning specified in Section 8.02(c).



     “Observation Period” means the 20 consecutive Trading Day period beginning on and including
the second Trading Day after the related Conversion Date in respect of such Note.



     “Opening of Business” means 9:00 a.m. (New York City time).



     “Predecessor Note” of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 306 of the Base Indenture in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note that it replaces.



     “Put Right Repurchase Date” shall have the meaning assigned to it in Section 9.01(b).



     “Put Right Repurchase Notice” shall have the meaning assigned to it in Section 9.01(b)(i).



     “Put Right Repurchase Price” shall have the meaning assigned to it in Section 9.01(b).



     “Record Date,” with respect to the payment of interest on any Interest Payment Date, shall
have the meaning specified in Section 2.03.



     “Reference Property” shall have the meaning specified in Section 8.06(b).



     “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.




6












 





          “Settlement Amount” shall have the meaning specified in Section 8.02(a)(1).




          “Spin-Off” shall have the meaning specified in Section 8.04(c).




          “Stock Price” means the price paid per Common Share in connection with a Fundamental Change
pursuant to which Additional Shares shall be added to the Conversion Rate as set forth in
Section 8.01(e)(ii) hereof, which shall be equal to (i) if holders of Common Shares receive only
cash in such Fundamental Change, the cash amount paid per Common Share and (ii) in all other cases,
the average of the Last Reported Sale Prices of the Common Shares over the five consecutive Trading
Day period ending on the Trading Day preceding the Effective Date of the Fundamental Change.




          “Trading Day” means a day during which (i) trading in Common Shares generally occurs,
(ii) there is no Market Disruption Event and (iii) a Last Reported Sale Price for Common Shares
(other than a Last Reported Sale Price referred to in the next to last sentence of such definition)
is available for such day; provided that if the Common Shares are not admitted for trading or
quotation on or by any exchange, bureau or other organization referred to in the definition of Last
Reported Sale Price (excluding the next to last sentence of that definition), Trading Date shall
mean any Business Day.




          “Trading Price” with respect to the Notes, on any date of determination, means the average of
the secondary market bid quotations obtained by the Company and delivered to the Trustee for $2.0
million principal amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities dealers selected by the
Company; provided that if three such bids cannot reasonably be obtained, but two such bids are
obtained, then the average of the two bids shall be used, and if only one such bid can reasonably
be obtained, that one bid shall be used. If the Company cannot reasonably obtain at least one bid
for $2.0 million principal amount of Notes from a nationally recognized securities dealer, then the
Trading Price per $1,000 principal amount of Notes will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Shares and the Conversion Rate.




          “Trigger Event” shall have the meaning specified in Section 8.04(c).




          “Underwriters” means Wachovia Capital Markets, LLC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.




          “Underwriting Agreement” means that certain Underwriting Agreement relating to the Notes,
dated November 1, 2007, between the Company and the Underwriters.




7









 








ARTICLE II




ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES




          Section 2.01 Designation and Amount. The Notes shall be designated as the “1.875% Convertible
Senior Notes due 2037.” The aggregate principal amount of Notes that may be authenticated and
delivered under this Fifth Supplemental Indenture is initially limited to $1,000,000,000 (or
$1,150,000,000 if the Underwriters exercise their option to purchase additional Notes in full as
set forth in the Underwriting Agreement), subject to Section 2.07 and except for Notes
authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 2.06, Section 8.02 and Section 9.02 hereof and Section 306 and
Section 906 of to the Base Indenture.




          Section 2.02 Form of Notes. The Notes and the Trustee’s certificate of authentication to be
borne by such Notes shall be substantially in the form set forth in Exhibit A.




          Any of the Notes may have such letters, numbers or other marks of identification and such
notations, legends or endorsements as the officers executing the same may approve (execution
thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions
of this Fifth Supplemental Indenture, or as may be required by the Depositary, 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 securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage or to indicate any special limitations or
restrictions to which any particular Notes are subject.




          A Global Note shall represent such principal amount of the Outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate principal amount of
Outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of
Outstanding Notes represented thereby may from time to time be increased or reduced to reflect
repurchases, conversions, transfers or exchanges permitted hereby. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the amount of Outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the Holder of such Notes in accordance with this Fifth
Supplemental Indenture. Payment of principal and accrued and unpaid interest on a Global Note shall
be made to the Holder of such Note on the date of payment, unless a Record Date or other means of
determining Holders eligible to receive payment is provided for herein.




          The terms and provisions contained in the form of Note attached as Exhibit A hereto are
incorporated herein and shall constitute, and are hereby expressly made, a part of this Fifth
Supplemental Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Fifth Supplemental Indenture, expressly agree to such terms and
provisions and to be bound thereby.




          Section 2.03 Date and Denomination of Notes; Payments of Interest. The Notes shall be
issuable in registered form without coupons in denominations of $1,000 principal amount and
integral multiples thereof. Each Note shall be dated the date of its authentication



8









 






and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.




          The Person in whose name any Note (or its Predecessor Note) is registered on the Security
Register at the close of business on any Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest payable on such Interest Payment Date. Interest shall be
payable at the office of the Company maintained by the Company for such purposes in the Borough of
Manhattan, City of New York or the City of Boston, which shall initially be an office or agency of
the Trustee. The Company shall pay interest (i) on any Notes in certificated form by check mailed
to the address of the Person entitled thereto as it appears in the Security Register (or upon
written application by such Person to the Security Registrar not later than the relevant record
date, by wire transfer in immediately available funds to such Person’s account within the United
States, if such Person is entitled to interest on an aggregate principal in excess of $1,000,000)
or (ii) on any Global Note by wire transfer of immediately available funds to the account of the
Depositary or its nominee. The term “Record Date” with respect to any Interest Payment Date shall
mean the May 1 or November 1 preceding the applicable May 15 or November 15 Interest Payment Date,
respectively.




          Section 2.04 Intentionally Omitted.




          Section 2.05 Execution, Authentication and Delivery of Notes. Section 303 of the Base
Indenture shall be applicable to the Notes.




          Section 2.06 Exchange and Registration of Transfer of Notes; Restrictions on Transfer;
Depositary.




               (a) The Company shall provide for the registration of the Notes and of transfers of the Notes
in the Security Register. Upon surrender for registration of transfer of any Note to the Security
Registrar or any co-registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.06, the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount.



          Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Noteholder making the exchange is entitled to receive, bearing
registration numbers not contemporaneously outstanding.




          All Notes presented or surrendered for registration of transfer or for exchange, repurchase or
conversion shall (if so required by the Company, the Trustee, the Security Registrar or any
co-registrar) be duly endorsed, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.




9









 








          No service charge shall be charged to the Noteholder for any exchange or registration of
transfer of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in connection therewith.




          None of the Company, the Trustee, the Security Registrar or any co-registrar shall be required
to exchange or register a transfer of (a) any Notes surrendered for conversion or, if a portion of
any Note is surrendered for conversion, such portion thereof surrendered for conversion or (b) any
Notes, or a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with
Article IX hereof.




          All Notes issued upon any registration of transfer or exchange of Notes in accordance with
this Fifth Supplemental Indenture shall be the valid, binding and legal obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Fifth Supplemental Indenture
as the Notes surrendered upon such registration of transfer or exchange.




               (b) Intentionally Omitted.



               (c) Intentionally Omitted.



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



               (e) So long as the Notes are eligible for book-entry settlement with the Depositary, unless
otherwise required by law, all Notes shall be represented by one or more Notes in global form
(each, a “Global Note”) registered in the name of the Depositary or the nominee of the Depositary.
The transfer and exchange of beneficial interests in a Global Note, which does not involve the
issuance of a definitive Note, shall be effected through the Depositary (but not the Trustee or the
Custodian) in accordance with this Fifth Supplemental Indenture (including the restrictions on
transfer set forth herein) and the procedures of the Depositary therefor.



          Section 2.07 Additional Notes; Repurchases. The Company may, without the consent of the Noteholders and notwithstanding Section 2.01,
issue additional Notes hereunder with the same terms and with the same CUSIP number as the Notes
initially issued hereunder in an unlimited aggregate principal amount, which will form the same
series with the Notes initially issued hereunder, provided that no such additional Notes may be
issued unless fungible with the Notes initially issued hereunder for U.S. federal income tax
purposes. The Company may also from time to time repurchase the Notes in open market purchases by
tender at any price or by private agreement without prior notice to Noteholders.




          Section 2.08 No Sinking Fund. The provisions of Article Twelve of the Base Indenture shall not
be applicable to the Notes. No sinking fund is provided for the Notes.




10









 








          Section 2.09 Ranking. The Notes constitute a senior general obligation of the Company, ranking
equally with other existing and future senior and unsubordinated indebtedness of the Company and
ranking senior in right of payment to any future indebtedness of the Company that is expressly made
subordinate to the Notes by the terms of such indebtedness.




ARTICLE III




REDEMPTION




          Section 3.01 Right to Redeem.




               (a) Notwithstanding any provision of the Base Indenture, as modified by this Fifth
Supplemental Indenture, to the contrary, the Company may redeem the Notes prior to November 15,
2037, in whole, in order to preserve the Company’s status as a real estate investment trust under
the Code.



               (b) Except as provided in Section 3.01(a), the Company may not redeem the Notes prior to
January 15, 2013. On or after January 15, 2013, the Company, at its option, may redeem the Notes
from time to time in whole or in part.



               (c) Any redemption of Notes shall be at a Redemption Price equal to 100% of the principal
amount of the Notes being redeemed, plus accrued and unpaid interest; provided, however, that the
Company may deduct and withhold from such Redemption Price any amount required to be deducted and
withheld under applicable law.



          Section 3.02 Selection of Notes to be Redeemed.




               (a) The provisions of Section 1103 of the Base Indenture shall govern the selection of Notes
to be redeemed by the Trustee provided, however, that if less than all of the Notes are to be
redeemed, the Trustee shall make the selection from the Notes of that series Outstanding and not
previously called for redemption, by lot, or in its discretion, on a pro rata basis..



               (b) If any Note selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Note so selected, the converted portion of such
Note shall be deemed to be part of the portion selected for redemption. Notes which have been
converted subsequent to the Trustee commencing selection of Notes to be redeemed but prior to
redemption of such Notes shall be treated by the Trustee as Outstanding for the purpose of such
selection.



          Section 3.03 Notice of Redemption. The provisions of Section 1104 of the Base Indenture shall
govern notices of redemption of the Notes; provided, however, that in addition to the information
specified in Section 1104 of the Base Indenture, notices of redemption of the Notes shall also
state:




               (a) the then-current Conversion Price;



11









 





               (b) the name and address of the Conversion Agent;



               (c) that Holders who wish to convert Notes must surrender such Notes for conversion no later
than the close of business on the second Business Day immediately preceding the Redemption Date and
must satisfy the other requirements set forth herein; and



               (d) whether the Company will satisfy its Conversion Obligation with respect to any Notes
called for redemption that are surrendered for conversion in cash, Common Shares or both as
provided herein; provided that the Company may not provide notice of a redemption of Notes at the
Company’s option that specifies that the Company will settle conversions of Notes prior to such
redemption in cash and Common Shares unless, at the time of such notice, the Company has available
to it a sufficient number of authorized Common Shares to satisfy its Conversion Obligation in
respect of the Notes to be redeemed.



ARTICLE IV




PARTICULAR COVENANTS OF THE COMPANY




          Section 4.01 Payment of Principal and Interest.




               (a) Sections 307 and 1001 of the Base Indenture shall apply to the Notes; provided, however,
that, with respect to any Noteholder with an aggregate principal amount in excess of $1,000,000, at
the application of such Holder in writing to the Security Registrar not later than the relevant
record date, accrued and unpaid interest on such Holder’s
Notes shall be paid by wire transfer in immediately available funds to such Holder’s account
in the United States supplied by such Holder from time to time to the Trustee and Paying Agent (if
different from Trustee); provided further that payment of accrued and unpaid interest made to the
Depositary shall be paid by wire transfer in immediately available funds in accordance with such
wire transfer instructions and other procedures provided by the Depositary from time to time.



               (b) Except as otherwise provided in this Section 4.01(b), a Holder of any Notes at the close
of business on a Record Date shall be entitled to receive interest on such Notes on the
corresponding Interest Payment Date. A Holder of any Notes as of a Record Date that are converted
after the close of business on such Record Date and prior to the opening of business on the
corresponding Interest Payment Date shall be entitled to receive interest on the principal amount
of such Notes, notwithstanding the conversion of such Notes prior to such Interest Payment Date.
However, a Holder that surrenders any Notes for conversion between the close of business on a
Record Date and the opening of business on the corresponding Interest Payment Date shall be
required to pay the Company an amount equal to the interest payable by the Company with respect to
such Notes on such Interest Payment Date at the time such Holder surrenders such Notes for
conversion, provided, however, that this sentence shall not apply to a Holder that converts Notes:




                    (i) in respect of which the Company has given notice of redemption pursuant to
Section 3.03 on a Redemption Date that is after the relevant Record Date and on or
prior to the relevant Interest Payment Date; or



12









 






                    (ii) to the extent of any overdue interest, if any overdue interest exists at
the time of conversion with respect to such Notes;




                    (iii) in connection with a Fundamental Change in which the Company has
specified a Fundamental Change Repurchase Date that is after a Record Date and on
or prior to the next Interest Payment Date; or




                    (iv) after the Record Date immediately preceding the Maturity Date.


Accordingly, a Holder that converts Notes under any of the circumstances described in clauses (i),
(ii), (iii) or (iv) above will not be required to pay to the Company an amount equal to the
interest payable by the Company with respect to such Notes on the relevant Interest Payment Date.




          Section 4.02 Maintenance of Office or Agency for Conversion Agent. If at any time the
Conversion Agent is not the Trustee or an office or agency designated or appointed by the Trustee,
the Company will give prompt written notice to the Trustee of the location of such Conversion
Agent. If at any time the Company shall fail to maintain an office or agency for the Conversion
Agent, presentations, surrenders, notices and demands related to conversions of Notes may be made
or served at the Corporate Trust Office or the office or agency of the Trustee in the Borough of
Manhattan, the City of New York or in the City of Boston.




          Section 4.03 Intentionally Omitted.




          Section 4.04 Intentionally Omitted.




          Section 4.05 Exclusion of Certain Provisions From Base Indenture. Section 1004, Section 1006,
Section 1007 and Section 1011 of the Base Indenture shall not apply to the Notes. Section 1002,
Section 1003, Section 1005, Section 1008, Section 1009 (as amended by Section 2.2 of the Second
Supplemental Indenture to the Base Indenture), Section 1010 and Section 1012 of the Base Indenture
shall be applicable to the Notes.




ARTICLE V




DEFAULTS AND REMEDIES




          Section 5.01 Events of Default. The provisions of Section 501(2) and Section 501(3) of the
Base Indenture shall not be applicable to the Notes. As contemplated under Section 301 and Section
501(9) of the Base Indenture, the following events, in addition to the events described in clauses
(1), (4), (5) (as amended by the Second Supplemental Indenture to the Base Indenture), (6) (as
amended by the Second Supplemental Indenture to the Base Indenture), (7) and (8) of the Base
Indenture, shall be Events of Default with respect to the Notes:




13









 








               (a) default in the payment of principal or premium, if any, of any Note when due and payable
on the Maturity Date, upon redemption, repurchase, declaration or otherwise;



               (b) failure by the Company to comply with its obligation to convert the Notes into cash,
Common Shares or a combination of cash and Common Shares, as applicable, upon exercise of a
Holder’s conversion right, and such failure continues for a period of 10 days; or



               (c) failure by the Company to issue a Fundamental Change Company Notice in accordance with
Section 9.02 when due, and such failure continues for a period of two days.



          Section 5.02 Article Five of Base Indenture. Except as amended by Section 5.01 hereof, all of
the provisions of Article Five of the Base Indenture shall be applicable to the Notes.




ARTICLE VI




SUPPLEMENTAL INDENTURES




          Section 6.01 Supplemental Indentures Without Consent of Noteholders. The provisions of
Section 901 of the Base Indenture shall be applicable to the Notes.




          Section 6.02 Modification and Amendment with Consent of Noteholders. Section 902 of the Base
Indenture shall be applicable to the Notes. As contemplated by Sections 301 and 902 of the Base
Indenture, no supplemental indenture shall, without the consent of the Holder of each Outstanding
Note affected thereby:




               (a) make any change that adversely affects the conversion rights of any Notes;



               (b) reduce the Fundamental Change Repurchase Price, Redemption Price or Put Right Repurchase
Price of any Note, or amend or modify in any manner adverse to Noteholders the Company’s obligation
to make such payments or Article III or Article IX of this Fifth Supplemental Indenture, whether
through an amendment or waiver of provisions in the covenants, definitions or otherwise.



          Section 6.03 Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, the Base Indenture and this Fifth Supplemental Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this Fifth
Supplemental Indenture for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.




          Section 6.04 Article Nine of Base Indenture. Except as amended by this Article VI, all of the
provisions of Article Nine of the Base Indenture shall be applicable to the Notes.




14









 








ARTICLE VII




CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




          Section 7.01 Company May Consolidate, Etc. on Certain Terms. Article Eight of the Base
Indenture shall be applicable to the Notes.




ARTICLE VIII




CONVERSION OF NOTES




          Section 8.01 Conversion Privilege.




               (a) Subject to the conditions described in clauses (b) through (f) below and to Section 8.11
hereof, and upon compliance with the provisions of this Article VIII, a Holder of Notes shall have
the right, at such Holder’s option, to convert all or any portion (if the portion to be converted
is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the
close of business on the scheduled Trading Day immediately preceding October 15, 2012 at a rate
(the “Conversion Rate”) of 12.1957 Common Shares (subject to adjustment by the Company as provided
in Section 8.04) per $1,000 principal amount of Notes (the “Conversion Obligation”) under the
circumstances and during the periods set forth below. On and after October 15, 2012, regardless of
the conditions described in clause (b) through (f) below, upon compliance with the provisions of
this Article VIII and subject to Section 8.11 hereof, a Noteholder shall have the right, at such
holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal
amount or an integral multiple thereof) of such Note at any time prior to the close of business on
the scheduled Trading Day immediately preceding the Maturity Date at a Conversion Rate of 12.1957
Common Shares (subject to adjustment by the Company as provided in Section 8.04) per $1,000
principal amount of Notes.



               (b) (1) A Holder of Notes shall have the right, at such Holder’s option, to convert its Notes
prior to October 15, 2012, during the five Business Day period immediately after any ten
consecutive Trading Day period (the “Measurement Period”) in which the Trading Price per $1,000
principal amount of Notes for each day of such Measurement Period was less than 98% of the product
of the Last Reported Sale Price of the Common Shares on such date and the Conversion Rate on such
date, all as determined by the Trustee in the manner described in the immediately succeeding
paragraph. The Trustee shall have no obligation to determine the Trading Price of the Notes unless
requested by the Company to do so in writing, and the Company shall have no obligation to make such
request unless a Noteholder or Noteholders of at least $1,000,000 aggregate principal amount of
Notes provides the Company with reasonable evidence that the Trading Price per $1,000 principal
amount of the Notes would be less than 98% of the product of the Last Reported Sale Price at such
time and the then-applicable Conversion Rate, at which time the Company shall select three
independent nationally recognized securities dealers (each, an “Independent Securities Dealer”),
request that the Independent Securities Dealers provide a secondary market quotation for the Notes
and provide such determination to the Company and the Trustee in writing, and the Company shall
instruct



15









 




the Independent Securities Dealers to provide a secondary market quotation for the Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per
$1,000 principal amount of the Notes is greater than or equal to 98% of the product of the Last
Reported Sale Price on such date and the then-applicable Conversion Rate. If the Trading Price
condition set forth above has been met, the Company shall so notify the Noteholders. If at any time
after the Trading Price condition set forth above has been met, the Trading Price per
$1,000 principal amount of Notes is greater than 98% of the product of the Last Reported Sale
Price on such date and the then-applicable Conversion Rate, the Company shall so notify the
Noteholders.




               (2) Any request by the Company to the Trustee for a determination of the Trading Price and
whether the Trading Price condition set forth in the first sentence of the immediately preceding
paragraph has been met shall be accompanied by an Officers’ Certificate setting forth, for each day
of determination (as identified in such Certificate), the name of the Independent Securities
Dealers providing the secondary market bid quotations, a statement certifying that that such
dealers are “Independent Securities Dealers” as required in this Section 8.01, the secondary
market bid quotations obtained from such Independent Securities Dealers (a copy of which will be
attached to such Officers’ Certificate), the Company’s calculation of the Trading Price for such
date. The Trustee shall be entitled to conclusively rely, without independent verification, on the
quotations provided by the Company in making its determinations hereunder. On the basis of such
quotations, the Trustee shall determine the Trading Price of the Notes, and provide such
determination to the Company. Absent manifest error, the Trustee’s determination of the Trading
Price will be binding on the Company. Unless and until a Responsible Officer of the Trustee shall
have received a request from the Company for determination of the Trading Price for the Notes and
the Officers’ Certificate contemplated herein, the Trustee shall have no obligation to make any
determination of the Trading Price of the Notes or whether the Trading Price condition has been
met.



               (c) A Holder of Notes shall have the right, at such Holder’s option, to convert Notes during
any calendar quarter after the quarter ended December 31, 2007, and only during such calendar
quarter, if the Last Reported Sale Price for the Common Shares for at least 20 Trading Days during
the period of 30 consecutive Trading Days ending on the last Trading Day of the previous calendar
quarter exceeds 130% of the Conversion Price (the “Conversion Trigger Price”) on such last Trading
Day, which Conversion Price shall be subject to adjustment in accordance with this Article VIII.
The Conversion Agent shall, on the Company’s behalf, determine at the beginning of each calendar
quarter whether the Notes are convertible as a result of the price of Common Shares as contemplated
in the previous sentence and notify the Company and the Trustee.



               (d) In the event that the Company has delivered a notice of redemption in accordance with
Section 1104 of the Base Indenture and Section 3.03 of this Fifth Supplemental Indenture to the
Holders of Notes, a Holder of Notes may convert Notes at any time prior to the close of business on
the second Business Day immediately preceding the corresponding Redemption Date; provided, however,
that a Holder who has already delivered a Fundamental Change Repurchase Notice with respect to a
Note may not convert such Note until the Holder has withdrawn the Fundamental Change Repurchase
Notice in accordance with the terms of the Note and this Fifth Supplemental Indenture.



16









 





               (e) (1) In the event that the Company elects to:




                         (A) distribute to all or substantially all holders of Common Shares
rights entitling them to purchase, for a period expiring within 60 days,
Common Shares at a price less than
the Last Reported Sale Price of the Common Shares for the Trading
Day immediately preceding the declaration date of such distribution; or




                         (B) distribute to all or substantially all holders of Common
Shares, assets or debt securities of the Company or rights to purchase
the Company’s securities, which distribution has a per share value (as
determined by the Board of Trustees) exceeding 15% of the Last Reported
Sale Price of the Common Shares on the day immediately preceding the
date of declaration of such distribution,


then, in either case, Holders may surrender the Notes for conversion at any time on and after the
date that the Company provides notice to Holders referred to in the next sentence until the earlier
of the close of business on the Business Day immediately preceding the Ex-Dividend Date for such
distribution or the date the Company announces that such distribution will not take place. The
Company shall notify Holders of any distribution referred to in either clause (A) or clause (B)
above and of the resulting conversion right no later than the 35th Business Day prior to the
Ex-Dividend Date for such distribution.




               (2) If the Company is a party to any transaction or event that constitutes a
Fundamental Change, a Holder may surrender Notes for conversion at any time from and after
the 30th scheduled Trading Day prior to the anticipated Effective Date of such transaction
or event until the related Fundamental Change Repurchase Date and, upon such surrender, the
Holder shall be entitled to the increase in the Conversion Rate, if any, specified in
Section 8.01(g). The Company shall give notice to all record Noteholders and the Trustee
and issue a press release of the Fundamental Change no later than 30 scheduled Trading Days
prior to the anticipated effective date of the Fundamental Change.



               (3) If the Company is a party to a consolidation, merger, binding share exchange or
sale or conveyance of all or substantially all of its properties and assets, in each case
pursuant to which the Common Shares would be converted into cash, securities and/or other
property, then the Holders shall have the right to convert Notes at any time beginning
fifteen calendar days prior to the date announced by the Company as the anticipated
effective date of the transaction and until and including the date that is fifteen calendar
days after the date that is the effective date of such transaction; provided such
transaction does not otherwise constitute a Fundamental Change to which the provisions of
Section 8.01(e)(ii) shall apply. The Company shall give notice to all record Noteholders
and the Trustee and issue a press release at least 20 calendar days prior to the
anticipated effective date of such transaction. If the Board of Trustees determines the
anticipated effective date of the transaction, such determination shall be conclusive and
binding on the Holders.



17









 





               (f) The Notes shall be convertible at any time beginning on the first Business Day after any
30 consecutive Trading Day period during which Common Shares are not listed on either a U.S.
national securities exchange.



               (g) (1) If a Noteholder elects to convert Notes in connection with a Fundamental Change that
occurs prior to January 15, 2013, the Conversion Rate applicable to each $1,000 principal amount of
Notes so converted shall be increased by an additional number of Common Shares (the “Additional
Shares”) as described below. Settlement of Notes tendered for conversion to which Additional
Shares shall be added to the Conversion Rate as provided in this subsection shall be settled
pursuant to Section 8.02 below, as applicable. For purposes of this Section 8.01(g), a conversion
shall be deemed to be “in connection with” a Fundamental Change to the extent that the related
conversion notice is delivered during the time period beginning on the 30th Trading Day prior to
the anticipated Effective Date of such Fundamental Change and ending on the related Fundamental
Change Repurchase Date, inclusive (regardless of whether the provisions of clauses (b), (c), (d),
(e) or (f) of this Section 8.01 shall apply to such conversion). Such conversion notice shall
indicate that the Holder of Notes has elected to convert Notes in connection with a Fundamental
Change; provided, however, that the failure to so indicate shall not in any way affect the
Conversion Obligation or the right of such Holder to receive Additional Shares in connection with
such conversion.




                    (i) The number of Additional Shares by which the Conversion Rate will be
increased shall be determined by reference to the table attached as Schedule A
hereto, based on the date on which the Fundamental Change occurs or becomes
effective (the “Effective Date”), and the Stock Price; provided, that if the Stock
Price is between two Stock Price amounts in the table or the Effective Date is
between two Effective Dates in the table, the number of Additional Shares shall be
determined by a straight-line interpolation between the number of Additional Shares
set forth for the next higher and next lower Stock Price amounts and the two
nearest Effective Dates, as applicable, based on a 365-day year; provided further
that if (1) the Stock Price is greater than $120.00 per Common Share (subject to
adjustment in the same manner as set forth in Section 8.04), no Additional Shares
will be added to the Conversion Rate, and (2) the Stock Price is less than $68.33
per Common Share (subject to adjustment in the same manner as set forth in
Section 8.04), no Additional Shares will be added to the Conversion Rate.
Notwithstanding the foregoing, in no event will the total number of Common Shares
issuable upon conversion exceed 14.6349 per $1,000 principal amount of Notes
(subject to adjustment in the same manner as set forth in clauses (a), (b) and (c)
of Section 8.04).




                    (ii) The Stock Prices set forth in the first row of the table in Schedule A
hereto shall be adjusted as of any date on which the Conversion Rate of the Notes
is adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of
which is the Conversion Rate in effect immediately prior to the adjustment giving
rise to the Stock Price adjustment and the denominator of which is the Conversion
Rate as so adjusted. The number of Additional Shares within the table shall be
adjusted in the same manner as the



18









 






Conversion Rate as set forth in Section 8.04
(other than by operation of an adjustment to the Conversion Rate by adding
Additional Shares).



          Section 8.02 Conversion Procedures.




               (a) (1) The Company shall settle its Conversion Obligations as described in Section
8.02(a)(3), unless, within the applicable time period specified in this Section 8.02(a)(1), the
Company elects to settle its conversion Obligations as described in Section 8.02(a)(2) or Section
8.02(a)(4). The cash and/or Common Shares which the Company is required to deliver in accordance
with this Section 8.02 in settlement of its Conversion Obligations is referred to herein as the
“Settlement Amount.” If the Company desires to settle its Conversion Obligations as described in
Section 8.02(a)(2) or Section 8.02(a)(4), the Company shall notify each converting Noteholder by
notice to the Trustee (for further distribution to Noteholders) of the method the Company will
choose to satisfy its Conversion Obligations no later than the second Trading Day immediately
following the Company’s receipt of a Notice of Conversion from such Holder, and such notice shall
specify the section of this Fifth Supplemental Indenture pursuant to which the Company is electing
to satisfy its conversion obligations; provided, however, that the Company shall have the right to
irrevocably elect, in its sole discretion and without the consent of Noteholders, by notice to the
Trustee (for further distribution to Noteholders), on or prior to October 15, 2012, to settle all
of its future Conversion Obligations entirely in Common Shares as described in Section 8.02(a)(2),
and provided further, that the Company is required to settle all conversions with a Conversion Date
occurring on or after October 15, 2012 in the same manner, and the Company shall notify Noteholders
by notice to the Trustee (for further distribution to Noteholders) of the manner of settlement
(including specifying the applicable section of this Fifth Supplemental Indenture that describes
such manner of settlement) on or before such date. The Company shall treat all Noteholders
converting on the same Trading Day in the same manner; however, the Company shall not have any
obligation to settle its Conversion Obligations arising on different Trading Days in the same
manner, except for conversions with a Conversion Date occurring on or after October 15, 2012, which
shall all be satisfied in the same manner.



               (2) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Conversion Obligations as described in this Section 8.02(a)(2), the
Company shall have the right to settle its conversion obligations entirely in Common Shares. If
the Company elects to satisfy its Conversion Obligation entirely in Common Shares, the Company
shall deliver a number of Common Shares equal to (i) the aggregate principal amount of Notes to be
converted divided by $1,000, multiplied by (ii) the applicable Conversion Rate (which shall include
any increases to reflect any Additional Shares that such Holder is entitled to receive pursuant to
Section 8.01(g) above). The Company shall deliver such Common Shares as soon as practicable after
it has notified the converting Holder pursuant to Section 8.02(a)(1) above, that it has elected to
satisfy its Conversion Obligation entirely in Common Shares.



               (3) If the Company does not elect, within the applicable time periods specified in Section
8.02(a)(1), to settle its conversion obligations as described in Section 8.02(a)(2) or 8.02(a)(4),
the Company shall settle its Conversion Obligations as described in this Section 8.02(a)(3),
subject to Section 8.02(b) hereof. The Company shall deliver in respect of



19









 




each $1,000 principal amount of Notes being converted a Settlement Amount equal to the sum of
the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the
Observation Period, on the third Trading Day immediately following the last day of the related
Observation Period; provided that the Company will deliver cash in lieu of fractional Common Shares
as set forth pursuant to clause (k) below. The Daily Settlement Amounts shall be determined by the
Company promptly following the last day of the Observation Period.




               (4) If the Company has elected, within the applicable time periods specified in Section
8.02(a)(1), to settle its Conversion Obligations as described in this Section 8.02(a)(4), the
Company shall have the right to settle all or a portion of the amount by which the Daily Conversion
Value exceeds $50 in cash in accordance with this Section 8.02(a)(4). In such case, the Company
shall specify a percentage of the amount by which the Daily Conversion Value exceeds $50 that will
be settled in cash, or the “cash percentage.” The Company will inform converting Holders by notice
to the Trustee (for further distribution to Noteholders) no later than two Trading Days prior to
the first day of the applicable Observation Period if it elects to pay cash upon conversion of the
Notes and shall specify in such notice (the “cash percentage notice”) the applicable cash
percentage. If the Company elects to specify a cash percentage, the amount of cash that the
Company shall deliver in respect of each Trading Day in the applicable Observation Period shall
equal the product of (w) the cash percentage and (x) the amount by which the Daily Conversion Value
exceeds $50 for such Trading Day. The number of Common Shares deliverable in respect of each
Trading Day in the applicable Observation Period shall equal (i) the product of (y) 100% minus the
cash percentage and (z) the amount by which the Daily Conversion Value exceeds $50 for such Trading
Day, divided by (ii) the Daily VWAP of the Common Shares for such Trading Day. If the Company does
not specify a cash percentage, it must settle the entire amount by which the Daily Conversion Value
exceeds $50 with Common Shares pursuant to Section 8.02(a)(3) above; provided, however, that the
Company will deliver cash in lieu of fractional Common Shares as set forth pursuant to clause (k)
below. If the Company specifies a cash percentage, the Company shall satisfy its Conversion
Obligation by delivering, on the third Trading Day immediately following the last day of the
related Observation Period, the amount of cash and the number of Common Shares deliverable pursuant
to this Section 8.02(a)(4).



               (b) Notwithstanding Section 8.02(a), the Company shall satisfy the Conversion Obligation with
respect to each $1,000 principal amount of Notes tendered for conversion to which Additional Shares
shall be added to the Conversion Rate as set forth in Section 8.01(g) pursuant to this clause (b).




                         (A) If the last day of the applicable Observation Period related to
Notes surrendered for conversion is prior to the third Trading Day
preceding the Effective Date of the Fundamental Change, the Company will
satisfy the related Conversion Obligation with respect to each $1,000
principal amount of Notes tendered for conversion as described in
Section 8.01(a) by delivering the amount of cash and Common Shares, if
any (based on the Conversion Rate, but without regard to the number of
Additional Shares to be added to the Conversion Rate pursuant to
Section 8.01(g)) on the third Trading Day immediately following the last
day of the



20









 






applicable Observation Period. In addition, as soon as
practicable
following the Effective Date of the Fundamental Change, the Company
will deliver the increase in such amount of cash and Reference Property
deliverable in lieu of Common Shares, if any, as if the Conversion Rate
had been increased by such number of Additional Shares during the
related Observation Period (and based upon the related Daily VWAP prices
during such Observation Period). If such increased amount of cash and
Common Shares, if any, results in an increase to the amount of cash to
be paid to Holders, the Company will pay such increase in cash, and if
such increased amount results in an increase to the number of Common
Shares, the Company will deliver such increase by delivering Reference
Property based on such increased number of shares.




                         (B) If the last day of the applicable Observation Period related to
Notes surrendered for conversion is on or following the third scheduled
Trading Day preceding the Effective Date of such Fundamental Change, the
Company will satisfy the Conversion Obligation with respect to each
$1,000 principal amount of Notes tendered for conversion as described in
Section 8.01(a) (based on the Conversion Rate as increased by the
Additional Shares pursuant to Section 8.01(g) above) on the later to
occur of (x) the Effective Date of the Fundamental Change and (y) the
third Trading Day immediately following the last day of the applicable
Observation Period.



               (c) Before any Holder of a Note shall be entitled to convert the same as set forth above, such
Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in Section 4.01(b) and
Section 8.02(i) and, if required, pay all taxes or duties, if any, and (2) in the case of a Note
issued in certificated form, (A) complete and manually sign and deliver an irrevocable written
notice to the Conversion Agent in the form on the reverse of such certificated Note (or a facsimile
thereof) (a “Notice of Conversion”) at the office of the Conversion Agent and shall state in
writing therein the principal amount of Notes to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for any Common Shares, if
any, to be delivered upon settlement of the Conversion Obligation to be registered, (B) surrender
such Notes, duly endorsed to the Company or in blank (and accompanied by appropriate endorsement
and transfer documents), at the office of the Conversion Agent, (C) if required, pay funds equal to
interest payable on the next Interest Payment Date to which such Holder is not entitled as set
forth in Section 4.01(b) and Section 8.02(i), and (D) if required, pay all taxes or duties, if any.
A Note shall be deemed to have been converted immediately prior to the close of business on the
date (the “Conversion Date”) that the Holder has complied with the requirements set forth in this
Section 8.02(c).



          No Notice of Conversion with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Put Right Repurchase Notice or a Fundamental Change Repurchase Notice
and not validly withdrawn such Put Right Repurchase Notice or





21












 




Fundamental Change Repurchase Notice in accordance with the applicable provisions of
Section 9.01 or 9.02, as the case may be.




     If more than one Note shall be surrendered for conversion at one time by the same Holder, the
Conversion Obligation with respect to such Notes, if any, that shall be payable upon conversion
shall be computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted thereby) so surrendered.



          (d) Delivery of the amounts owing in satisfaction of the Conversion Obligation shall be made
by the Company in no event later than the date specified in Section 8.02(a), except to the extent
specified in Section 8.02(b). The Company shall make such delivery by paying the cash amount owed
to the Conversion Agent or to the Holder of the Note surrendered for conversion, or such Holder’s
nominee or nominees, and by issuing, or causing to be issued, and delivering to the Conversion
Agent or to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry
transfer through the Depositary for the number of full Common Shares to which such Holder shall be
entitled as part of such Conversion Obligation (together with any cash in lieu of fractional
shares).




          (e) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall authenticate and deliver to or upon the written order of the Holder of the
Note so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.




          (f) If a Holder submits a Note for conversion, the Company shall pay all stamp and other
duties, if any, which may be imposed by the United States or any political subdivision thereof or
taxing authority thereof or therein with respect to the issuance of Common Shares, if any, upon the
conversion. However, the Holder shall pay any such tax that is due because the Holder requests any
Common Shares to be issued in a name other than the Holder’s name. The Conversion Agent may refuse
to deliver the certificates representing the Common Shares being issued in a name other than the
Holder’s name until the Trustee receives a sum sufficient to pay any tax which will be due because
the shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude
any tax withholding required by law or regulations.




          (g) Except as provided in Section 8.04, no adjustment shall be made for dividends on any
shares issued upon the conversion of any Note as provided in this Article.




          (h) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at the
direction of the Trustee, shall make a notation on such Global Note as to the reduction in the
principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Notes effected through any Conversion Agent other than the Trustee.




          (i) Upon conversion, a Noteholder will not receive any separate cash payment for accrued and
unpaid interest, except as set forth below. The Company’s settlement of its Conversion Obligation
as described above shall be deemed to satisfy its obligation to pay




22









 




the principal amount of the
Note and accrued and unpaid interest to, but not including, the Conversion Date. As a result,
accrued and unpaid interest to, but not including, the Conversion Date shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited.
Notwithstanding the preceding sentence, if Notes are converted after the close of business on
a Record Date, Holders of such Notes as of the close of business on the Record Date will receive
the interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the
conversion. Notes surrendered for conversion during the period from the close of business on any
regular Record Date to the opening of business on the corresponding Interest Payment Date must be
accompanied by payment of an amount equal to the interest payable on the Notes so converted;
provided, however, that no such payment need be made (1) if the Company has called the Notes for
redemption or (2) to the extent of any overdue interest existing at the time of conversion with
respect to such Note, (3) to Notes surrendered for conversion in connection with a Fundamental
Change in which the Company has specified a Fundamental Change Repurchase Date that is after a
Record Date and on or prior to the next Interest Payment Date, or (4) to Notes surrendered for
conversion after the Record Date immediately preceding the Maturity Date. Except as described
above, no payment or adjustment will be made for accrued interest on converted Notes.




          (j) The Person in whose name the certificate for any Common Shares issued upon conversion is
registered shall be treated as a shareholder of record on and after the Conversion Date; provided,
however, that no surrender of Notes on any date when the stock transfer books of the Company shall
be closed shall be effective to constitute the Person or Persons entitled to receive the Common
Shares upon such conversion as the record holder or holders of such Common Shares on such date, but
such surrender shall be effective to constitute the Person or Persons entitled to receive such
Common Shares as the record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; such conversion shall be at
the Conversion Rate in effect on the date that such Notes shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed. Upon conversion of
Notes, such Person shall no longer be a Noteholder.




          (k) No fractional Common Shares shall be issued upon conversion of any Note or Notes. If more
than one Note shall be surrendered for conversion at one time by the same Holder, the number of
full shares that shall be issued upon conversion thereof shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof) so surrendered. Instead of
any fractional Common Share that would otherwise be issued upon conversion of any Note or Notes (or
specified portions thereof), the Company shall pay a cash adjustment in respect of such fraction
(calculated to the nearest one-100th of a share) in an amount equal to the same fraction of the
Last Reported Sale Price of the Common Shares on the last day of the applicable Observation Period.




          (l) Reserved.




     Section 8.03 Reserved.



     Section 8.04 Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from time
to time by the Company as follows:



23









 





          (a) In case the Company shall issue Common Shares as a dividend or distribution to holders of
the outstanding Common Stock, or shall effect a subdivision into a
greater number of Common Shares or combination into a lesser number of Common Shares, the
Conversion Rate shall be adjusted based on the following formula:









     where



	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to such event;
	 
	 	 	 	 
	CR¢

	 	=
	 	the Conversion Rate in effect immediately after such event;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of Common Shares outstanding immediately prior to such event; and
	 
	 	 	 	 
	OS¢

	 	=
	 	the number of Common Shares outstanding immediately after such event.





Such adjustment shall become effective immediately after 9:00 a.m., New York City time, on the
Business Day following the record date fixed for such determination. If any dividend or
distribution of the type described in this Section 8.04(a) is declared but not so paid or made, or
the outstanding Common Shares are not subdivided or combined, as the case may be, the Conversion
Rate shall be immediately readjusted, effective as of the date the Board of Trustees determines not
to pay such dividend or distribution, or subdivide or combine the outstanding Common Shares, as the
case may be, to the Conversion Rate that would then be in effect if such dividend, distribution,
subdivision or combination had not been declared.




          (b) In case the Company shall issue to all or substantially all holders of its outstanding
Common Shares any rights, warrants or convertible securities entitling them (for a period expiring
within sixty (60) calendar days after the issuance thereof) to subscribe for or purchase Common
Shares at a price per share less than the Last Reported Sale Price of the Common Shares on the
Business Day immediately preceding the date of announcement of such issuance, the Conversion Rate
shall be adjusted based on the following formula:









     where



	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to such event;
	 
	 	 	 	 
	CR¢

	 	=
	 	the Conversion Rate in effect immediately after such event;
	 
	 	 	 	 
	OS0

	 	=
	 	the number of Common Shares outstanding immediately prior to such event;






24









 





	 	 	 	 	 
	X

	 	=
	 	the total number of Common Shares issuable pursuant to such rights, warrants or convertible securities; and
	 
	 	 	 	 
	Y

	 	=
	 	the number of Common Shares equal to the aggregate price
payable to exercise such rights, warrants or convertible securities divided by
the average of the Last Reported Sale Prices per Common Share over the ten
consecutive Trading Day period ending on the Business Day immediately preceding
the record date (or, if later, the Ex-Date relating to such distribution) for
the issuance of such rights, warrants or convertible securities.





Such adjustment shall be successively made whenever any such rights, warrants or convertible
securities are issued and shall become effective immediately after 9:00 a.m., New York City time,
on the Business Day following the date fixed for such determination. If such rights, warrants or
convertible securities are not so exercised prior to their expiration, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such record date for
such distribution had not been fixed.




     In determining whether any rights, warrants or convertible securities entitle the holder
thereof to subscribe for or purchase Common Shares at a price per share less than the Last Reported
Sale Price of the Common Shares on the Business Day immediately preceding the date of announcement
of such issuance, and in determining the aggregate offering price of such Common Shares, there
shall be taken into account any consideration received by the Company for such rights, warrants or
convertible securities and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Trustees.



          (c) In case the Company shall distribute to all or substantially all holders of its Common
Shares shares of beneficial interest, evidences of its indebtedness or other assets or property of
the Company (including securities, but excluding dividends and distributions covered by
Section 8.04(a), Section 8.04(b) or Section 8.04(d) and distributions described below in this
paragraph (c) with respect to Spin-Offs) (any of such shares of beneficial interest, indebtedness,
or other asset or property hereinafter in this Section 8.04(c) called the “Distributed Property”),
then, in each such case the Conversion Rate shall be adjusted based on the following formula:









     where



	 	 	 	 	 
	CR0

	 	=
	 	the Conversion Rate in effect immediately prior to such distribution;
	 
	 	 	 	 
	CR¢

	 	=
	 	the Conversion Rate in effect immediately after such distribution;







25











 





	 	 	 	 	 	 	 
	 

	 	SP0
	 	=
	 	the average of the Last Reported Sale Prices of the Common Shares
over the ten consecutive Trading Day period ending on the Business Day
immediately preceding the record date for such distribution (or, if earlier,
the Ex-Date relating to such distribution); and
	 
	 	 	 	 	 	 
	 

	 	FMV
	 	=
	 	the fair market value (as determined by the Board of
Trustees) of the Distributed Property distributed with respect to each
outstanding share of Common Shares on the record date for such distribution
(or, if earlier, the Ex-Date relating to such distribution).





Such adjustment shall become effective immediately prior to 9:00 a.m., New York City time, on the
Business Day following the date fixed for the determination of shareholders entitled to receive
such distribution; provided that if the then fair market value (as so determined) of the portion of
the Distributed Property so distributed applicable to one Common Share is equal to or greater than
SP0 as set forth above, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Noteholder shall have the right to receive, for each $1,000 principal amount of
Notes upon conversion, the amount of Distributed Property such Holder would have received had such
Holder owned a number of Common Shares equal to the Conversion Rate on the record date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such dividend or distribution had not been
declared. If the Board of Trustees determines the fair market value of any distribution for
purposes of this Section 8.04(c) by reference to the actual or when issued trading market for any
securities, it must in doing so consider the prices in such market over the same period used in
determining SP0 above.




          With respect to an adjustment pursuant to this Section 8.04(c) where there has been a payment
of a dividend or other distribution on the Common Shares in shares of beneficial interest any class
or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a
“Spin-Off”), unless the Company distributes such shares of beneficial interest or equity interests
to each Noteholder on the same basis as such Noteholder would have received had it converted its
Notes solely into Common Shares immediately prior to such dividend or distribution, the Conversion
Rate in effect immediately before 5:00 p.m., New York City time, on the Record Date fixed for
determination of shareholders entitled to receive the distribution will be increased based on the
following formula:









	 	 	 	 	 	 	 
	 

	 	where	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to such
distribution;
	 
	 	 	 	 	 	 
	 

	 	CR¢
	 	=
	 	the Conversion Rate in effect immediately after such distribution;






26









 






	 	 	 	 	 	 	 
	 

	 	FMV0
	 	=
	 	the average of the Last Reported Sale Prices of the shares of
beneficial interest or similar equity interest distributed to holders of Common
Shares applicable to one Common Share over the first ten consecutive Trading
Day period after the effective date of the Spin-Off; and
	 
	 

	 	MP0
	 	=
	 	the average of the Last Reported Sale Prices of Common Shares over
the first ten consecutive Trading Day period after the effective date of the
Spin-Off.





Such adjustment shall occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any conversion within the ten Trading Days following any
Spin-Off, references within this paragraph (c) to ten days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between such Spin-Off and the Conversion Date in
determining the applicable Conversion Rate.




          Rights or warrants distributed by the Company to all holders of Common Shares, entitling the
holders thereof to subscribe for or purchase Common Shares (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified event or events
(“Trigger Event”): (i) are deemed to be transferred with such Common Shares; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of Common Shares, shall be
deemed not to have been distributed for purposes of this Section 8.04 (and no adjustment to the
Conversion Rate under this Section 8.04 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been distributed and an
appropriate adjustment (if any is required) to the Conversion Rate shall be made under this
Section 8.04(c). If any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Fifth Supplemental Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each such
event shall be deemed to be the date of distribution and record date with respect to new rights or
warrants with such rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of any distribution (or
deemed distribution) of rights or warrants, or any Trigger Event or other event (of the type
described in the preceding sentence) with respect thereto that was counted for purposes of
calculating a distribution amount for which an adjustment to the Conversion Rate under this
Section 8.04 was made, (1) in the case of any such rights or warrants that shall all have been
redeemed or repurchased without exercise by any holders thereof, the Conversion Rate shall be
readjusted upon such final redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal to the per share redemption
or repurchase price received by a holder or holders of Common Shares with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to all holders of Common
Shares as of the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been issued.




27









 








          For purposes of this Section 8.04(c), Section 8.04(a) and Section 8.04(b), any dividend or
distribution to which this Section 8.04(c) is applicable that also includes Common Shares to which
Section 8.04(a) applies or rights or warrants to subscribe for or purchase Common Shares to which
Section 8.04(a) or Section 8.04(b) applies (or both), shall be deemed instead to be (1) a dividend
or distribution of the evidences of indebtedness, assets or shares of Capital Stock other than such
Common Shares or rights or warrants to which Section 8.04(c) applies (and any Conversion Rate
adjustment required by this Section 8.04(c) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such Common Shares or such
rights or warrants (and any further Conversion Rate adjustment required by Section 8.04(a) and
Section 8.04(b) with respect to such dividend or distribution shall then be made), except (A) the
record date of such dividend or distribution shall be substituted as “the record date” and “the
date fixed for such determination” within the meaning of Section 8.04(a) and Section 8.04(b) and
(B) any Common Shares included in such dividend or distribution shall not be deemed “outstanding
immediately prior to such event” within the meaning of Section 8.04(a).




                (d) In case the Company shall pay a dividend or make a distribution consisting exclusively of
cash to all or substantially all holders of its Common Shares to the extent that the aggregate of
all such cash dividends or distributions paid in any quarter exceeds the Dividend Threshold Amount
for such quarter, the Conversion Rate shall be adjusted based on the following formula:









	 	 	 	 	 	 	 
	 

	 	where	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect immediately prior to the record date
for such distribution;
	 
	 	 	 	 	 	 
	 

	 	CR¢
	 	=
	 	the Conversion Rate in effect immediately after the record date for such
distribution;
	 
	 

	 	SP0
	 	=
	 	the average of the Last Reported Sale Prices of the Common Shares
over the period of ten consecutive Trading Days ending the Business Day
immediately preceding the record date (as defined in clause (f) of this
Section) for such distribution (or, if earlier, the Ex-Date relating to such
distribution);
	 
	 	 	 	 	 	 
	 

	 	T
	 	=
	 	the dividend threshold amount (“Dividend Threshold Amount”),
which amount shall initially be $0.46 per quarter and which shall be
appropriately adjusted from time to time for any share dividends on, or
subdivisions or combinations of, Common Shares; provided, that if a Conversion
Rate adjustment is required to be made as a result of a distribution that is
not a quarterly dividend either in whole or in part, the Dividend Threshold
Amount shall be deemed to be zero; and






28









 






	 	 	 	 	 	 	 
	 

	 	C
	 	=
	 	the amount in cash per share that the Company distributes to
holders of Common Shares.





Such adjustment shall become effective immediately after 5:00 p.m., New York City time, on the
record date for such dividend or distribution; provided that if the portion of the cash so
distributed applicable to one Common Share is equal to or greater than SP0 above, in
lieu of the foregoing adjustment, adequate provision shall be made so that each Noteholder shall
have the right to receive upon conversion of a Note (or any portion thereof) the amount of cash
such Holder would have received had such Holder owned a number of shares equal to the Conversion
Rate on the record date. If such dividend or distribution is not so paid or made, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared.




          For the avoidance of doubt, for purposes of this Section 8.04(d), in the event of any
reclassification of the Common Shares, as a result of which the Notes become convertible into more
than one class of Common Shares, if an adjustment to the Conversion Rate is required pursuant to
this Section 8.04(d), references in this Section to one Common Share or Last Reported Sale Price of
one Common Share shall be deemed to refer to a unit or to the price of a unit consisting of the
number of shares of each class of Common Shares into which the Notes are then convertible equal to
the number of shares of such class issued in respect of one Common Share in such reclassification.
The above provisions of this paragraph shall similarly apply to successive reclassifications.




                (e) In case the Company or any of its Subsidiaries makes a payment in respect of a tender
offer or exchange offer for all or any portion of the Common Shares, to the extent that the cash
and value of any other consideration included in the payment per Common Share exceeds the Last
Reported Sale Price of the Common Shares on the Trading Day next succeeding the last date on which
tenders or exchanges may be made pursuant to such tender or exchange offer (as it may be amended),
the Conversion Rate shall be increased based on the following formula:









	 	 	 	 	 	 	 
	 

	 	where	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	CR0
	 	=
	 	the Conversion Rate in effect on the date such tender or exchange
offer expires;
	 
	 	 	 	 	 	 
	 

	 	CR¢
	 	=
	 	the Conversion Rate in effect on the day next succeeding the date such
tender or exchange offer expires;
	 
	 	 	 	 	 	 
	 

	 	AC
	 	=
	 	the aggregate value of all cash and any other consideration
(as determined by the Board of Trustees) paid or payable for shares purchased
in such tender or exchange offer;






29









 






	 	 	 	 	 	 	 
	 

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

	 	OS¢
	 	=
	 	the number of Common Shares outstanding immediately after the date such
tender or exchange offer expires; and
	 
	 	 	 	 	 	 
	 

	 	SP¢
	 	=
	 	the average of the Last Reported Sale Prices of Common Shares over the
ten consecutive Trading Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer expires,





such adjustment to become effective immediately prior to the opening of business on the day
following the last date on which tenders or exchanges may be made pursuant to such tender or
exchange offer. If the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from effecting all or
any such purchases or all or any portion of such purchases are rescinded, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made or had only been made in respect of the purchases that had been effected.
No adjustment to the Conversion Rate will be made if the application of the foregoing formulae
would result in a decrease in the Conversion Rate.




          (f) For purposes of this Section 8.04 the term “record date” shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Shares have the
right to receive any cash, securities or other property or in which the Common Shares (or other
applicable security) is converted for or converted into any combination of cash, securities or
other property, the date fixed for determination of shareholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Trustees or by statute,
contract or otherwise).




          (g) In addition to those required by clauses (a), (b), (c), (d), and (e) of this Section 8.04,
and to the extent permitted by applicable law and subject to the applicable rules of the New York
Stock Exchange, the Company from time to time may increase the Conversion Rate by any amount for a
period of at least 20 days if the Board of Trustees determines that such increase would be in the
Company’s best interest. In addition, the Company may also (but is not required to) increase the
Conversion Rate to avoid or diminish any income tax to holders of Common Shares or rights to
purchase Common Shares in connection with any dividend or distribution of shares (or rights to
acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the Holder of each Note at his last address appearing
on the Security Register a notice of the increase at least five days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the increased Conversion Rate
and the period during which it will be in effect.




          (h) All calculations and other determinations under this Article VIII shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of a
share, as the case may be. No adjustment shall be made for the Company’s issuance of Common Shares
or any securities convertible into or exchangeable for Common Shares, or the right to purchase
Common Shares or such convertible or exchangeable




30









 







securities, other than as provided in this Section 8.04. No adjustment shall be made to the
Conversion Rate unless such adjustment would require a change of at least 1% in the Conversion Rate
then in effect at such time. The Company shall carry forward any adjustments that are less than 1%
of the Conversion Rate and make such carried forward adjustments, regardless of whether the
aggregate adjustment is less than 1% within one year of the first such adjustment carried forward,
upon a Fundamental Change, upon any call of the notes for redemption or upon maturity.




          (i) Whenever the Conversion Rate is adjusted as herein provided, the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an Officers’ Certificate
setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the
facts requiring such adjustment. The Trustee and Conversion Agent may conclusively rely on the
accuracy of the Conversion Rate adjustment provided by the Company. Unless and until a Responsible
Officer of the Trustee shall have received such Officers’ Certificate, the Trustee shall not be
deemed to have knowledge of any adjustment of the Conversion Rate and may assume without inquiry
that the last Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment
becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the
Holder of each Note at his last address appearing on the Security Register, within thirty (30) days
of the effective date of such adjustment. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.




          (j) For purposes of this Section 8.04, the number of Common Shares at any time outstanding
shall not include shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of Common Shares.




     Notwithstanding the foregoing provisions of this Section 8.04, in no event will the total
number of Common Shares issuable upon conversion exceed 14.6349 per $1,000 principal amount of
Notes (subject to adjustment in the same manner or as set forth in clauses (a), (b) and (c) of this
Section 8.04).



     Section 8.05 Shares to be Fully Paid. Subject to Section 8.02(k), the Company shall provide,
free from preemptive rights, sufficient Common Shares to provide for conversion of the Notes from
time to time as such Notes are presented for conversion.



     Section 8.06 Effect of Reclassification, Consolidation, Merger or Sale. If any of the
following events occur, namely (i) any reclassification or change of the outstanding Common Shares
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another Person, or (iii) any sale or conveyance of all or
substantially all of the property and assets of the Company to any other Person, in either case as
a result of which holders of Common Shares shall be entitled to receive cash, securities or other
property or assets with respect to or in exchange for such Common Shares (any such event a “Merger
Event”), then:



31









 





          (a) the Company or the successor or purchasing Person, as the case may be, shall execute with
the Trustee a supplemental indenture (which, as evidenced in an Opinion of Counsel delivered to the
Trustee, shall comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so comply) providing for
the conversion and settlement of the Notes as set forth in this Fifth Supplemental Indenture. Such
supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article and the Trustee may conclusively rely
on the determination by the Company of the equivalency of such adjustments. If, in the case of any
Merger Event, the Reference Property includes shares of stock or other securities and assets of a
corporation other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Notes as the Board of Trustees
shall reasonably consider necessary by reason of the foregoing, including to the extent required by
the Board of Trustees and practicable the provisions providing for the repurchase rights set forth
in Article 9 herein.




     In the event the Company shall execute a supplemental indenture pursuant to this Section 8.06,
the Company shall, in addition to the Officers’ Certificate and Opinion of Counsel required by
Section 102 of the Base Indenture, file with the Trustee an Officers’ Certificate briefly stating
the kind or amount of cash, securities or property or asset that will constitute the Reference
Property after any such Merger Event, any adjustment to be made with respect thereto, and the
Trustee shall promptly mail notice thereof to all Noteholders.



          (b) Notwithstanding the provisions of Section 8.02(a) and Section 8.02(b), and subject to the
provisions of Section 8.01, at the effective time of such Merger Event, the right to convert each
$1,000 principal amount of Notes will be changed to a right to convert such Note by reference to
the kind and amount of cash, securities or other property or assets that a holder of a number of
Common Shares equal to the Conversion Rate immediately prior to such transaction would have owned
or been entitled to receive (the “Reference Property”) such that from and after the effective time
of such transaction, a Noteholder will be entitled thereafter to convert its Notes, subject to the
successor’s right to deliver cash, Common Shares or common stock of such successor or a combination
of cash and Common Shares as set forth in Section 8.02(b), into cash (up to the aggregate principal
amount thereof) and, in lieu of the Common Shares otherwise deliverable, the same type (and in the
same proportion) of Reference Property, based on the Daily Settlement Amounts of Reference Property
in an amount equal to the applicable Conversion Rate, as described under Section 8.02(b). For
purposes of determining the constitution of Reference Property, the type and amount of
consideration that a holder of Common Shares would have been entitled to in the case of
reclassifications, consolidations, mergers, sales or conveyance of assets or other transactions
that cause the Common Shares to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of shareholder election) will be deemed to be
the weighted average of the types and amounts of consideration received by the holders of Common
Shares that affirmatively make such an election. The Company shall not become a party to any such
transaction unless its terms are consistent with the preceding. None of the foregoing provisions
shall affect the right of a Holder of Notes to convert its Notes in accordance with the provisions
of Article VIII hereof prior to the effective date.




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          (c) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Noteholder, at his address appearing on the Security Register, within thirty (30)
days after execution thereof. Failure to deliver such notice shall not affect the legality or
validity of such supplemental indenture.




          (d) The above provisions of this Section shall similarly apply to successive Merger Events.




     Section 8.07 Certain Covenants. The Company covenants that all Common Shares delivered upon
conversion of Notes will be fully paid and non-assessable by the Company and free from all taxes,
liens and changes with respect to the issue thereof.



     Section 8.08 Responsibility of Trustee. The Trustee and any other Conversion Agent shall not
at any time be under any duty or responsibility to any Noteholder to determine the Conversion Rate
or whether any facts exist which may require any adjustment of the Conversion Rate, or with respect
to the nature or extent or calculation of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be employed, in making the
same. The Trustee and any other Conversion Agent shall not be accountable with respect to the
validity or value (or the kind or amount) of any Common Shares, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any Note; and the Trustee and
any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to transfer or deliver any
Common Shares or share certificates or other securities or property or cash upon the surrender of
any Note for the purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.



     Without limiting the generality of the foregoing, neither the Trustee nor any Conversion Agent
shall be under any responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Section 8.06 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such Section 8.06 or to any adjustment to
be made with respect thereto, but, subject to the provisions of Article Six of the Base Indenture,
may accept as conclusive evidence of the correctness of any such provisions, and shall be protected
in relying upon, the Officers’ Certificate with respect thereto.



     Section 8.09 Notice to Holders Prior to Certain Actions.



     In case:



          (a) the Company shall declare a dividend (or any other distribution) on its Common Shares that
would require an adjustment in the Conversion Rate pursuant to Section 8.04; or




          (b) the Company shall authorize the granting to all of the holders of its Common Shares of
rights or warrants to subscribe for or purchase any share of any class or any other rights or
warrants;




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          (c) of any reclassification of the Common Shares of the Company (other than a subdivision or
combination of its outstanding Common Shares, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or




          (d) of the voluntary or involuntary dissolution, liquidation or winding-up of the Company,



the Company shall cause to be filed with the Trustee and to be mailed to each Noteholder at his
address appearing on the Security Register as promptly as possible but in any event at least thirty
(30) days prior to the applicable date specified in clause (x) or (y) below, as the case may be, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Shares of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the
date as of which it is expected that holders of Common Shares of record shall be entitled to
convert their Common Shares for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not affect the legality or validity of
such dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.




     Section 8.10 Shareholder Rights Plans. Upon conversion of the Notes, the Holders shall
receive, in addition to any Common Shares issuable upon such conversion, the associated rights
issued under any future shareholder rights plan the Company adopts unless, prior to conversion, the
rights have separated from the Common Shares, expired, terminated or been redeemed or converted in
accordance with such rights plan. If, and only if, the Holders receive rights under such
shareholder rights plans as described in the preceding sentence upon conversion of their Notes,
then no other adjustment pursuant to this Article VIII shall be made in connection with such
shareholder rights plans.



     Section 8.11 Ownership Limit. Notwithstanding any other provision of this Fifth Supplemental
Indenture or the Notes, no Holder of Notes (or beneficial owner of Notes) shall be entitled to
convert such Notes for Common Shares to the extent that receipt of such shares would cause such
Holder (or beneficial owner of Notes) (together with such Holder’s (or beneficial owner’s)
affiliates) to exceed the applicable ownership limit contained in the declaration of trust of the
Company.



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ARTICLE IX




REPURCHASE OF NOTES AT OPTION OF HOLDERS




     Section 9.01 Repurchase of Securities at Option of the Holder on Specified Dates.



          (a) The provisions of Article Thirteen of the Base Indenture shall not be applicable to the
Notes.




          (b) Each Noteholder shall have the right, at such Holder’s option, to require the Company to
repurchase all of such Holder’s Notes or any portion thereof that is a multiple of $1,000 principal
amount, for cash on January 15, 2013, November 15, 2017, November 15, 2022, November 15, 2027 and
November 15, 2032 (each, a “Put Right Repurchase Date”) at a repurchase price per Note equal to
100% of the aggregate principal amount of the Notes being repurchased, together with any accrued
and unpaid interest up to, but not including, such Put Right Repurchase Date (the “Put Right
Repurchase Price”).




     Repurchases of Notes by the Company pursuant to this Section 9.01 shall be made, at the option
of the Holder thereof, upon:




                     (i) delivery to the Trustee (or other Paying Agent appointed by the Company)
by the Holder of a written notice of purchase (a “Put Right Repurchase Notice”) in
the form set forth on the reverse of the Note at any time from the opening of
business on the date that is 25 Business Days prior to the applicable Put Right
Repurchase Date until the close of business on the fifth Business Day prior to such
Put Right Repurchase Date stating:




                    (A) if certificated, the certificate numbers of the Notes to be
delivered for repurchase;




                     (B) the portion of the principal amount of the Notes to be
repurchased, which must be $1,000 or an integral multiple thereof, and




                    (C) that the Notes are to be repurchased as of the applicable Put
Right Repurchase Date pursuant to the terms and conditions specified in
the Notes and in this Fifth Supplemental Indenture, and




                     (ii) delivery of such Note to the Paying Agent prior to, on or after the Put
Right Repurchase Date (together with all necessary endorsements) at the offices of
the Paying Agent, such delivery being a condition to receipt by the Holder of the
Put Right Repurchase Price therefor, which shall be so paid pursuant to this
Section 9.01 only if the Note so delivered to the Paying Agent shall conform in all
respects to the description thereof in the related Put Right Repurchase Notice, as
determined by the Company.



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     The Company shall repurchase from the Holder thereof, pursuant to this Section 9.01, a portion
of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Fifth Supplemental Indenture that apply to the repurchase of all of a Note also
apply to the repurchase of such portion of such Note.



     Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.01
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Put Right Repurchase Date and the time of delivery of the Note.



     The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Put Right Repurchase Notice or written notice of withdrawal thereof in
accordance with the provisions of Section 9.01(e).



     Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal
of the Note so surrendered.



          (c) In connection with any purchase of Notes pursuant to this Section 9.01, the Company shall
give written notice of the Put Right Repurchase Date to the Holders (the “Company Put Right
Notice”).




     The Company Put Right Notice shall be sent by first-class mail to the Trustee and to each
Holder (and to each beneficial owner as required by applicable law) that has delivered a Put Right
Repurchase Notice within 10 Business Days of receipt of such Put Right Repurchase Notice, or, if a
shorter period, at least two Business Days prior to any Put Right Repurchase Date (the “Company Put
Right Notice Date”). Each Company Put Right Notice shall include a form of Put Right Repurchase
Notice to be completed by a Noteholder and shall state:




                     (i) the Put Right Repurchase Price and the Conversion Price;




                     (ii) the name and address of the Paying Agent and the Conversion Agent;




                     (iii) that Notes as to which a Put Right Repurchase Notice has been given may
be converted in accordance with Article VIII hereof only if the applicable Put
Right Repurchase Notice has been withdrawn in accordance with the terms of this
Fifth Supplemental Indenture;




                     (iv) that Notes must be surrendered to the Paying Agent to collect payment;




36












 






               (v) that the Put Right Repurchase Price for any Note as to which a Put Right
Repurchase Notice has been given and not withdrawn will be paid promptly following
the later of the Put Right Repurchase Date and the time of surrender of such Note
as described in subclause (iv) above;




               (vi) the procedures the Holder must follow to exercise rights under this
Section and a brief description of those rights;




               (vii) briefly, the conversion rights of the Notes;




               (viii) the procedures for withdrawing a Put Right Repurchase Notice (including
pursuant to the terms of Section 9.01(e);




               (ix) that, unless the Company defaults in making payment on Notes for which a
Put Right Repurchase Notice has been submitted, interest on the Notes in respect of
which a Put Right Repurchase Notice has been delivered and not withdrawn will cease
to accrue on the Put Right Repurchase Date; and




               (x) the CUSIP number of the Notes.



          If any of the Notes are to be redeemed in the form of a Global Note, the Company shall modify
such notice to the extent necessary to accord with the procedures of the Depositary applicable to
redemptions.




          At the Company’s request, the Trustee shall give such Company Put Right Notice in the
Company’s name and at the Company’s expense; provided, however, that, in all cases, the text of
such Company Put Right Notice shall be prepared by the Company.




               (d) Upon receipt by the Trustee (or other Paying Agent appointed by the Company) of the Put
Right Repurchase Notice specified in Section 9.01(a), the Holder of the Note in respect of which
such Put Right Repurchase Notice was given shall (unless such Put Right Repurchase Notice is
withdrawn as specified in Section 9.01(e)) thereafter be entitled to receive solely the Put Right
Repurchase Price with respect to such Note. Such Put Right Repurchase Price shall be paid to such
Holder, subject to receipt of funds by the Paying Agent, promptly following the later of (x) the
Put Right Repurchase Date with respect to such Note (provided the conditions in Section 9.01(a)
have been satisfied) and (y) the time of delivery of such Note to the Paying Agent by the Holder
thereof in the manner required by Section 9.01(a). Notes in respect of which a Put Right Repurchase
Notice has been given by the Holder thereof may not be converted pursuant to Article VIII hereof on
or after the date of the delivery of such Put Right Repurchase Notice, unless such Put Right
Repurchase Notice has first been validly withdrawn as specified in Section 9.01(e).



               (e) A Put Right Repurchase Notice may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the
Put Right Repurchase Notice at any time prior to 10:00 A.M. New York City time on the fourth
Business Day prior to the Put Right Repurchase Date specifying:



37









 






               (i) if certificated Notes have been issued, the certificate numbers of the
withdrawn Notes,




               (ii) the principal amount of the Notes with respect to which such notice of
withdrawal is being submitted, and




               (iii) the principal amount, if any, of such Notes that remains subject to the
original Put Right Repurchase Notice, which portion must be in principal amounts of
$1,000 or an integral multiple of $1,000;


provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.




          A written notice of withdrawal of a Put Right Repurchase Notice shall be in the form set forth
in the preceding paragraph.




          Upon receipt of a written notice of withdrawal, the Paying Agent shall promptly return to the
Holders thereof any Notes in respect of which a Put Right Repurchase Notice has been withdrawn in
accordance with the provisions of Section 9.01(f).




               (f) There shall be no repurchase of any Notes pursuant to this Section 9.01 if there has
occurred (prior to, on or after, as the case may be, the giving, by the Holders of such Notes, of
the required Put Right Repurchase Notice) and is continuing an Event of Default with respect to
Notes (other than a default in the payment of the Put Right Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof any Notes held by
it during the continuance of an Event of Default with respect to Notes (other than a default in the
payment of the Put Right Repurchase Price with respect to such Notes), in which case, upon such
return, the Put Right Repurchase Notice with respect thereto shall be deemed to have been
withdrawn.



               (g) Prior to 11:00 a.m. (local time in The City of New York) on the Put Right Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust in accordance
with the terms of the Base Indenture as modified by this Fifth Supplemental Indenture) an amount
(in immediately available funds if deposited on such Business Day) sufficient to pay the aggregate
Put Right Repurchase Price of all the Notes or portions thereof which are to be purchased as of the
Put Right Repurchase Date. The manner in which the deposit required by this Section 9.01(g) is
made by the Company shall be at the option of the Company; provided that such deposit shall be made
in a manner such that the Trustee or a Paying Agent shall have immediately available funds on the
Put Right Repurchase Date.



          If the Trustee (or other Paying Agent appointed by the Company) holds, in accordance with the
terms hereof, money sufficient to pay the Put Right Repurchase Price of any Note, then, on the Put
Right Repurchase Date, such Note will cease to be Outstanding and the
rights of the Holder in respect thereof shall terminate (other than the right to receive the
Put Right Repurchase Price as aforesaid).




38









 








          To the extent that the aggregate amount of cash deposited by the Company pursuant to this
Section 9.01(g) exceeds the aggregate Put Right Repurchase Price of the Notes or portions thereof
that the Company is obligated to purchase, then promptly after the Put Right Repurchase Date the
Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the Company.




          Section 1.02 Repurchase at Option of Holders Upon a Fundamental Change.




               (a) If a Fundamental Change occurs at any time, then each Noteholder shall have the right, at
such Holder’s option, to require the Company to repurchase all of such Holder’s Notes or any
portion thereof that is a multiple of $1,000 principal amount, for cash on the date (the
"Fundamental Change Repurchase Date”) specified by the Company that is not less than twenty (20)
Business Days and not more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a repurchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”).



          Repurchases of Notes under this Section 9.02 shall be made, at the option of the Holder
thereof, upon:





               (i) delivery to the Trustee (or other Paying Agent appointed by the Company)
by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”)
in the form set forth on the reverse of the Note prior to the close of business on
the Fundamental Change Repurchase Date; and




               (ii) delivery or book-entry transfer of the Notes to the Trustee (or other
Paying Agent appointed by the Company) at any time after delivery of the
Fundamental Change Repurchase Notice (together with all necessary endorsements) at
the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the
Company) in the Borough of Manhattan or the City of Boston, such delivery being a
condition to receipt by the Holder of the Fundamental Change Repurchase Price
therefor; provided that such Fundamental Change Repurchase Price shall be so paid
pursuant to this Section 9.02 only if the Note so delivered to the Trustee (or
other Paying Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Fundamental Change Repurchase Notice.




The Fundamental Change Repurchase Notice shall state:




               (A) if certificated, the certificate numbers of Notes to be
delivered for repurchase;




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



39









 






               (C) that the Notes are to be repurchased by the Company pursuant to
the applicable provisions of the Notes and this Fifth Supplemental
Indenture.



          Any repurchase by the Company contemplated pursuant to the provisions of this Section 9.02
shall be consummated by the delivery of the consideration to be received by the Holder promptly
following the later of the Fundamental Change Repurchase Date and the time of the book-entry
transfer or delivery of the Note.




          The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of Section 9.02(c).




          Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Note without service charge, a
new Note or Notes, containing identical terms and conditions, each in an authorized denomination in
aggregate principal amount equal to and in exchange for the unrepurchased portion of the principal
of the Note so surrendered.




               (b) On or before the twentieth day after the occurrence of any Fundamental Change, the Company
shall provide to all Holders of record of the Notes and the Trustee and Paying Agent a notice (the
"Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the
repurchase right at the option of the Holders arising as a result thereof. Such mailing shall be by
first class mail. Simultaneously with providing such Fundamental Change Company Notice, the
Company shall publish a notice containing the information included therein once in a newspaper of
general circulation in The City of New York or publish such information on the Company’s website or
through such other public medium as the Company may use at such time.



          Each Fundamental Change Company Notice shall specify:





               (i) the events causing the Fundamental Change;




               (ii) the date of the Fundamental Change;




               (iii) that the Holder must exercise the repurchase right on or prior to the
close of business on the Fundamental Change Repurchase Date;




               (iv) the Fundamental Change Repurchase Price;




               (v) the Fundamental Change Repurchase Date;




               (vi) the name and address of the Paying Agent and the Conversion Agent;



40









 






               (vii) the applicable Conversion Rate and any adjustments to the applicable
Conversion Rate;




               (viii) that the Notes with respect to which a Fundamental Change Repurchase
Notice has been delivered by a Holder may be converted only if the Holder withdraws
the Fundamental Change Repurchase Notice in accordance with the terms of this Fifth
Supplemental Indenture; and




               (ix) the procedures that Holders must follow to require the Company to
repurchase their Notes.



          No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 9.02.




               (c) A Fundamental Change Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the Trustee and Paying Agent in accordance with the Fundamental Change
Company Notice at any time prior to the close of business on the Business Day prior to the
Fundamental Change Repurchase Date, specifying:




               (i) the principal amount of the Notes with respect to which such notice of
withdrawal is being submitted;




               (ii) if certificated Notes have been issued, the certificate numbers of the
withdrawn Notes; and




               (iii) the principal amount, if any, of such Notes that remains subject to the
original Fundamental Change Repurchase Notice, which portion must be in principal
amounts of $1,000 or an integral multiple of $1,000;


provided, however, that if the Notes are not in certificated form, the notice must comply with
appropriate procedures of the Depositary.




               (d) On or prior to 11:00 a.m. (local time in The City of New York) on the second Business Day
following the Fundamental Change Repurchase Date, the Company will deposit with the Trustee (or
other Paying Agent appointed by the Company or if the Company is acting as its own Paying Agent,
set aside, segregate and hold in trust in accordance with the Base Indenture as modified by this
Fifth Supplemental Indenture) an amount of money sufficient to repurchase on the Fundamental Change
Repurchase Date all of the Notes to be repurchased on such date at the Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn) prior
to the close of business on the Fundamental Change Repurchase Date will be made promptly after the
later of (x) the
Fundamental Change Repurchase Date with respect to such Note (provided the Holder has
satisfied the conditions to the payment of the Fundamental Change Repurchase Price in
Section 9.02), and (y) the time of book-entry transfer or the delivery of such Note to the Trustee
(or other Paying Agent appointed by the Company) by the Holder thereof in the manner required by
Section 9.02 by mailing checks for the amount payable to the Holders of such Notes entitled



41









 




thereto
as they shall appear in the Security Register, provided, however, that payments to the Depositary
shall be made by wire transfer of immediately available funds to the account of the Depositary or
its nominee. The Trustee shall, promptly after such payment and upon written demand by the Company,
return to the Company any funds in excess of the Fundamental Change Repurchase Price.




               (e) If the Trustee (or other Paying Agent appointed by the Company) holds money or securities
sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or portions
thereof that are to be purchased as of the second Business Day following the Fundamental Change
Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes will cease
to be Outstanding, (ii) interest will cease to accrue on such Notes, and (iii) all other rights of
the Holders of such Notes will terminate, whether or not book-entry transfer of the Notes has been
made or the Notes have been delivered to the Trustee or Paying Agent, other than the right to
receive the Fundamental Change Repurchase Price upon delivery of the Notes.



ARTICLE
X




MISCELLANEOUS PROVISIONS




          Section 10.01 Ratification of Base Indenture. Except as expressly modified or amended hereby,
the Base Indenture continues in full force and effect and is in all respects confirmed, ratified
and preserved and the provisions thereof shall be applicable to the Notes and this Fifth
Supplemental Indenture. Without limiting the generality of the foregoing, the Notes shall have the
benefit of Article Three of the Second Supplemental Indenture to the Base Indenture in accordance
with its terms.




          Section 10.02 Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements of the Company contained in this Fifth Supplemental Indenture shall bind
its successors and assigns whether so expressed or not.




          Section 10.03 Official Acts by Successor Corporation. Any act or proceeding by any provision
of this Fifth Supplemental Indenture authorized or required to be done or performed by any board,
committee or officer of the Company shall and may be done and performed with like force and effect
by the like board, committee or officer of any corporation or entity that shall at the time be the
lawful sole successor of the Company.




          Section 10.04 Addresses for Notices, Etc. Any notice or demand which by any provision of this
Fifth Supplemental Indenture is required or permitted to be given or served by the Trustee or by
the Noteholders on the Company shall be deemed to have been sufficiently given or made, for all
purposes if given or served by being deposited postage prepaid by registered or certified mail in a
post office letter box addressed (until another address is filed by the Company with the Trustee)
to ProLogis, 4545 Airport Way, Denver, Colorado 80239, Attention: General Counsel. Any notice,
direction, request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter





42









 







box addressed to U.S. Bank National
Association, 100 Wall Street, Suite 1600, New York, New York 10005, Attention: Corporate Trust
Services/ProLogis.




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




          Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Security Register and shall be sufficiently
given to him if so mailed within the time prescribed.




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




          Section 10.05 Governing Law. THIS FIFTH SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE
PERFORMED THEREIN.




          Section 10.06 Non-Business Day. Section 113 of the Base Indenture shall also apply to any
Fundamental Change Purchase Date, Put Right Repurchase Date or Conversion Date in respect of the
Notes.




          Section 10.07 Benefits of Indenture. Nothing in this Fifth Supplemental Indenture or in the
Notes, expressed or implied, shall give to any person, other than the parties hereto, any Paying
Agent, any authenticating agent, any Security Registrar and their successors hereunder, the
Noteholders, any benefit or any legal or equitable right, remedy or claim under this Fifth
Supplemental Indenture.




          Section 10.08 Table of Contents, Headings, Etc.
The table of contents and the titles and headings of the articles and sections of this
Fifth Supplemental Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.




          Section 10.09 Execution in Counterparts. This Fifth Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.




          Section 10.10 Trustee. The Trustee makes no representations as to the validity or sufficiency
of this Fifth Supplemental Indenture. The statements and recitals herein are deemed to be those of
the Company and not of the Trustee.




          Section 10.11 Further Instruments and Acts. Upon request of the Trustee, the Company will
execute and deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this Fifth Supplemental
Indenture.





43









 








          Section 10.12 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN
ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.




          Section 10.13 Force Majeure. In no event shall the Trustee or Conversion Agent be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation,
strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.





44









 








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




	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	PROLOGIS	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 

Name:
	 	 
	 

	 	 	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 	 	 
	[SEAL]	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 

	 	 

Name:
	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 	 	 






[Fifth Supplemental Indenture]




 









 








	 	 	 	 	 	 	 
	 

	 	 	 	U.S. BANK NATIONAL ASSOCIATION,	 	 
	 

	 	 	 	as Trustee	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 






[Fifth Supplemental Indenture]




 









 




SCHEDULE A




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Share Price
	Effective Date
	 	$	68.33	 	 	$	70.00	 	 	$	75.00	 	 	$	80.00	 	 	$	85.00	 	 	$	90.00	 	 	$	95.00	 	 	$	100.00	 	 	$	105.00	 	 	$	110.00	 	 	$	115.00	 	 	$	120.00	 
	 	 	 
	November 1, 2007
	 	 	2.4391	 	 	 	2.3043	 	 	 	1.7376	 	 	 	1.3043	 	 	 	0.8866	 	 	 	0.6265	 	 	 	0.4359	 	 	 	0.2893	 	 	 	0.1852	 	 	 	0.1043	 	 	 	0.0365	 	 	 	0.0071	 
	January 15, 2009
	 	 	2.4391	 	 	 	2.2471	 	 	 	1.6709	 	 	 	1.2418	 	 	 	0.8662	 	 	 	0.6191	 	 	 	0.4278	 	 	 	0.2817	 	 	 	0.1722	 	 	 	0.0921	 	 	 	0.0349	 	 	 	0.0000	 
	January 15, 2010
	 	 	2.4391	 	 	 	2.2043	 	 	 	1.6170	 	 	 	1.1909	 	 	 	0.8600	 	 	 	0.6047	 	 	 	0.4099	 	 	 	0.2634	 	 	 	0.1555	 	 	 	0.0782	 	 	 	0.0242	 	 	 	0.0000	 
	January 15, 2011
	 	 	2.4391	 	 	 	2.1692	 	 	 	1.5840	 	 	 	1.1342	 	 	 	0.7923	 	 	 	0.5354	 	 	 	0.3457	 	 	 	0.2083	 	 	 	0.1114	 	 	 	0.0451	 	 	 	0.0015	 	 	 	0.0000	 
	January 15, 2012
	 	 	2.4391	 	 	 	2.0800	 	 	 	1.4313	 	 	 	0.9500	 	 	 	0.6035	 	 	 	0.3614	 	 	 	0.1980	 	 	 	0.0916	 	 	 	0.0249	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 
	January 15, 2013
	 	 	2.4391	 	 	 	2.0282	 	 	 	1.0799	 	 	 	0.2759	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 







Sch. A-1











 





EXHIBIT A




[FORM OF FACE OF NOTE]




[Include only for Global Notes]




          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




[Include for all Notes]




          THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT
(“OID”) FOR U.S. FEDERAL INCOME TAX PURPOSES. HOLDERS OF SECURITIES MAY CONTACT GENE MCCLUSKY,
SENIOR VICE PRESIDENT, AT (303) 567-5198 TO REQUEST INFORMATION REGARDING THE ISSUE PRICE, THE
AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY OF THE SECURITIES FOR U.S. FEDERAL INCOME
TAX PURPOSES.




Exh. A-1









 





PROLOGIS




1.875% Convertible Senior Notes due 2037




			
	 	 	 
	No.                      
	 	$                                         
	 	 	 
	CUSIP No. 743410 AR3	 	 






          PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to [CEDE &
CO.], or registered assigns, the principal sum of [                    ] ($[                    ]) or such other principal amount
as shall be set forth on the Schedule I hereto on November 15, 2037.




          This Security shall bear interest at the rate of 1.875% per year from November 8, 2007, or
from the most recent date to which interest had been paid or provided. Interest is payable
semi-annually in arrears on each May 15 and November 15, commencing May 15, 2008, to Holders of
record at the close of business on the preceding May 1 and November 1, respectively. Interest
payable on each Interest Payment Date shall equal the amount of interest accrued from, and
including the immediately preceding Interest Payment Date (or from and including November 8, 2007,
if no interest has been paid hereon) to but excluding such Interest Payment Date.




          Payment of the principal and interest, on this Security will be made at the office or agency
of the Company maintained for that purpose in the Borough of Manhattan, City of New York or the
City of Boston, or elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company, payment of interest, may be made by
(i) check mailed to the address of the Person entitled thereto as such address shall appear in the
Security Register or (ii) transfer to an account of the Person entitled thereto located inside the
United States; provided further, however, that, with respect to any Holder of Securities with an
aggregate principal amount in excess of $1,000,000, at the application of such Holder in writing to
the Company, interest on such Holder’s Securities shall be paid by wire transfer in immediately
available funds to such Holder’s account in the United States supplied by such Holder from time to
time to the Trustee and Paying Agent (if different from the Trustee) not later than the applicable
record date.




          Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash, Common Shares of the Company or a combination of cash and Common Shares on
the terms and subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.




Exh. A-3









 





          This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.




          This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.




[Remainder of page intentionally left blank]




Exh. A-4









 





     Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.



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



PROLOGIS




	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: [                    ]	 	 
	 

	 	 	 	Title: [                    ]	 	 






	 	 	 	 	 
	Attest	 	 
	 
	 	 	 	 
	By:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Name: [                    ]	 	 
	 

	 	Title: [                    ]	 	 
	 
	 	 	 	 
	Dated: [                    ], 20[                    ]	 	 






TRUSTEE’S CERTIFICATE OF AUTHENTICATION:




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



U.S. BANK NATIONAL ASSOCIATION,





as successor trustee



	 	 	 	 	 
	BY:

	 	 	 	 
	 

	 	 	 	 
	 

	 	Authorized Officer	 	 






Exh. A-5









 





[FORM OF REVERSE OF NOTE]




PROLOGIS

1.875% Convertible Senior Notes due 2037




          This Security is one of a duly authorized issue of Securities of the Company, designated as
its 1.875% Convertible Senior Notes due 2037 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005 and the Fifth Supplemental
Indenture, dated as of November 8, 2007 (as so supplemented, herein called the “Indenture”),
between the Company and U.S. Bank National Association (herein called the “Trustee”), to which
Indenture and all indentures supplemental thereto reference is hereby made for a description of the
rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities. Additional Securities may be issued in an unlimited
aggregate principal amount, subject to certain conditions specified in the Indenture. Capitalized
terms used but not defined herein shall have the meanings ascribed to them in the Indenture.




          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.




          Prior to January 15, 2013, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Fifth
Supplemental Indenture. Subject to the terms and conditions of the Indenture, on or after January
15, 2013, the Company shall have the right to redeem the Securities, in whole or from time to time
in part, at a price equal to 100% of the principal amount of the Securities being redeemed, plus
accrued and unpaid interest. Any such redemption shall be upon at least 30 days’ and no more than
60 days’ notice to Holders of the Securities.




          Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase Price,
the Redemption Price and the principal amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in respect of the
Security. The Company will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts.




          The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental


Exh. A-6









 







indenture shall make any of the changes set forth in Section 6.02 of the Fifth Supplemental
Indenture, without the consent of each Holder of an Outstanding Security affected thereby. It is
also provided in the Indenture that, prior to any declaration accelerating the maturity of the
Securities, the Holders of a majority in principal amount of the Securities at the time Outstanding
may on behalf of the Holders of all of the Securities waive any past default or Event of Default
under the Indenture and its consequences except as provided in the Indenture. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners of this Security and
any Securities which may be issued in exchange or substitution hereof, irrespective of whether or
not any notation thereof is made upon this Security or such other Securities.




          No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.




          The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred
to on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.




          The Securities are not subject to redemption through the operation of any sinking fund.




          Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.




          On January 15, 2013, November 15, 2017, November 15, 2022, November 15, 2027 and November 15,
2032, the Holder has the right, at such Holder’s option, to require the Company to repurchase all
of such Holder’s Securities or any portion thereof (in principal amounts of $1,000 or integral
multiples thereof) at a price equal to 100% of the principal amount of the Securities such Holder
elects to require the Company to repurchase, together with accrued and unpaid interest to but
excluding the Put Right Repurchase Date. Holders shall submit their Securities for repurchase to
the Paying Agent at any time from the opening of business on the date that is 25 Business Days
prior to the applicable Put Right Repurchase Date until the close of business on the fifth Business
Day prior to the Put Right Repurchase Date.




Exh. A-7









 








          Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, on
and after October 15, 2012, or earlier upon the occurrence of certain conditions specified in the
Indenture and prior to the close of business on the Trading Day immediately preceding the Maturity
Date, to convert any Securities or portion thereof which is $1,000 or an integral multiple thereof,
into cash, Common Shares or a combination of cash and Common Shares, at the option of the Company
as provided in the Fifth Supplemental Indenture, in each case at the Conversion Rate specified in
the Indenture, as adjusted from time to time as provided in the Indenture, upon surrender of this
Security, together with a Notice of Conversion, a form of which is attached to this Security, as
provided in the Indenture and this Security, to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, City of New York or the City of Boston or
elsewhere as provided in the Indenture, and, unless the shares issuable on conversion are to be
issued in the same name as this Security, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the Holder or by his duly authorized
attorney. The initial Conversion Rate is 12.1957 shares for each $1,000 principal amount of
Securities. No fractional Common Shares will be issued upon any conversion, but an adjustment in
cash will be paid to the Holder, as provided in the Indenture, in respect of any fraction of a
share which would otherwise be issuable upon the surrender of any Security or Securities for
conversion. No adjustment shall be made for dividends or any shares issued upon conversion of such
Security except as provided in the Indenture.




          Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York or the City of Boston, a new Security or
Securities of authorized denominations for an equal aggregate principal amount will be issued to
the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessments or other governmental charge imposed in connection
therewith.




          The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.




          No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any


Exh. A-8









 







assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.




          Terms used in this Security and defined in the Indenture are used herein as therein defined.




          Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=tenants by the entireties), JT TEN (joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform gift to Minors
Act).




Exh. A-9









 





Schedule I




PROLOGIS




1.875% Convertible Senior Notes due 2037




     No.                                         



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Notation Explaining	 	 
	 	 	 	 	 	 	Principal Amount	 	Authorized Signature of
	Date	 	Principal Amount	 	Recorded	 	Trustee or Custodian
	 
	 	 	 	 	 	 	 	 	 	 	 	 





Exh. A-10









 





Schedule I




FORM OF CONVERSION NOTICE




To: PROLOGIS




          The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into cash, Common Shares, or a combination of cash and shares of Common Shares,
in accordance with the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon such conversion, if any, together with any check in payment of
the cash in respect of the remaining Conversion Obligation (as defined in the Indenture) and for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Security not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Security.




	 	 	 	 	 	 	 
	Dated:

	 	 
 

	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	Signature(s)

	 
	 	 	 	 	 	 
	Signature Guarantee
	 	 	 	 





Signature(s) must be guaranteed by an eligible

Guarantor Institution (banks, stock brokers,

savings and loan associations and credit unions)

with membership in an approved signature guarantee

medallion program pursuant to Rule 17Ad-15 under

the Securities Exchange Act of 1934, as amended,

if Common Shares are to be issued, or Securities

to be delivered, other than to and in the name of

the registered holder.




Exh. A-11









 




Fill in for registration of shares if to be issued, and

Securities if to be delivered, other than to and in

the name of the registered holder:




(Name)




(Street Address)




(City, State and Zip Code)




Please print name and address




	 	 	 
	 

	 	Principal amount to be converted (if less

than all): $___,000
	 
	 	 
	 

	 	Social Security or Other Taxpayer Identification Number






Exh. A-12









 





FORM OF PUT RIGHT REPURCHASE NOTICE




          To: PROLOGIS




          The undersigned hereby requests and instructs the Company to repay the entire principal amount
of this Security, or a portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, on ___in accordance with the terms of the Indenture referred to in
this Security at the Put Right Repurchase Price, to the registered holder hereof.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	Signature(s)
	 
	 	 	 	 
	 

	 	 	 	Social Security or Other Taxpayer
Identification Number Principal amount 

to be repaid (if less than all): $___,000 NOTICE:

The above signatures of the holder(s) hereof

must correspond with the name as written

upon the face of the Security in every

particular

without alteration or enlargement or any

change whatever.






Exh. A-13









 





FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE




          To: PROLOGIS




          The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company
and requests and instructs the Company to repay the entire principal amount of this Security, or
the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this Security, to the
registered holder hereof.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 	 	Signature(s)
	 
	 	 	 	 
	 

	 	 	 	Social Security or Other Taxpayer

Identification Number Principal amount to

be repaid (if less than all): $___,000 NOTICE:

The above signatures of the holder(s) hereof

must correspond with the name as written

upon the face of the Security in every

particular

without alteration or enlargement or any

change whatever.






Exh. A-14









 





FORM OF ASSIGNMENT AND TRANSFER




          For value received                      hereby sell(s), assign(s) and transfer(s) unto                     
(Please insert social security or Taxpayer Identification Number of assignee) the within Security,
and hereby irrevocably constitutes and appoints                      attorney to transfer the said Security
on the books of the Company, with full power of substitution in the premises.




	 	 	 	 	 
	Dated:
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Signature(s)
	 	 
	 
	 	 	 	 
	Signature Guarantee
	 	 





Signature(s) must be guaranteed by an eligible

Guarantor Institution (banks, stock brokers,

savings and loan associations and credit

unions) with membership in an approved

signature guarantee medallion program pursuant

to Rule 17Ad-15 under the Securities Exchange

Act of 1934, as amended, if Common Shares are

to be issued, or Securities to be delivered,

other than to and in the name of the

registered holder.



NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change, the Put Right Notice, or the assignment must correspond with the name as written upon the
face of the Security in every particular without alteration or enlargement or any change whatever.





Exh. A-15