Exhibit 4.1


    Exhibit
      4.1

     

    EXECUTION
      COPY


    


     

      
        

      

    

     

     

    WEINGARTEN
      REALTY INVESTORS,

     

    and

     

    JPMORGAN
      CHASE BANK, NATIONAL ASSOCIATION

     

    (FORMERLY,
      TEXAS COMMERCE BANK NATIONAL ASSOCIATION),

     

    Trustee

     

    
      
        

      



     

    FIRST
      SUPPLEMENTAL INDENTURE

     

    Dated
      as
      of August 2, 2006

     

    
      
  

    3.95%
      Convertible Senior Notes due 2026

     

     

    
      
        

      



    


    



    
      
        
          


          


        

        
        

      

      
        
        

        
          

        

      

      
        
        

        
        

      

    

     

    EXECUTION
      COPY



    FIRST
      SUPPLEMENTAL INDENTURE 

     

    THIS
      FIRST SUPPLEMENTAL INDENTURE (this “First
      Supplemental Indenture”)
      is
      entered into as of August 2, 2006 between WEINGARTEN REALTY INVESTORS, a
      Texas real estate investment trust (the “Company”),
      having its principal place of business at 2600 Citadel Plaza Drive, Suite 300,
      Houston, Texas 77008, and JPMorgan Chase Bank, National Association (formerly
      Texas Commerce Bank National Association), a national banking association duly
      organized and existing under the laws of the United States, as Trustee hereunder
      (the “Trustee”),
      having its Corporate Trust Office at 600 Travis, Suite 1150, Houston, Texas
      77002.

     

    WHEREAS,
      the Company and the Trustee entered into that certain Indenture dated as of
      May 1, 1995 (the “Original
      Indenture”),
      relating to the Company’s senior debt securities;

     

    WHEREAS,
      pursuant to Section 901 of the Indenture, the Company and the Trustee may
      enter into supplemental indentures to establish the terms and provisions of
      a
      series of Securities issued pursuant to the Indenture;

     

    WHEREAS,
      pursuant to Section 301 of the Indenture, the Company and the Trustee
      desire to establish the terms of a series of Securities entitled the “3.95%
      Convertible Senior Notes due 2026” (the “Notes”);
      and

     

    WHEREAS,
      the Company and the Trustee have duly authorized the execution and delivery
      of
      this instrument to establish the terms of the Notes set forth herein and have
      done all things necessary to make this instrument (together with the Original
      Indenture, the “Indenture”)
      a
      valid agreement of the parties hereto, in accordance with its
      terms;

     

    NOW,
      THEREFORE, in consideration of the premises and the covenants and agreements
      contained herein, and for other good and valuable consideration the receipt
      of
      which is hereby acknowledged, and for the equal and proportionate benefit of
      the
      Holders of the Securities, the Company and the Trustee agree as
      follows:

     

    ARTICLE
      ONE 

    DEFINITIONS
      

     

    Section
      1.01.  Definitions.
      Capitalized terms used in this instrument and not otherwise defined herein
      shall
      have the meanings assigned to such terms in the Original Indenture, as
      supplemented by the First Supplemental Indenture, or in the form of Note
      attached as Exhibit A hereto.

     

    “Additional
      Notes”
has
      the
      meaning provided in Section 2.02 hereof.

     

    “Additional
      Interest”
has
      the
      meaning specified for Liquidated Damages in the Registration Rights
      Agreement.

     

    “Additional
      Interest Notice”
has
      the
      meaning specified in Section 2.27.

     

    “Additional
      Shares”
has
      the
      meaning specified in Section 2.10.

     

     

    
      
        
        

      

      
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    “Applicable
      Conversion Period”
means,
      with respect to a conversion of Notes, the 10 consecutive Trading Day period
      commencing on the third Trading Day following the date the Notes are tendered
      for conversion.

     

    “Average
      Price”
means,
      with respect to a conversion of Notes, an amount equal to the average of the
      Closing Sale Prices of Common Shares for each Trading Day in the Applicable
      Conversion Period.

     

    “Business
      Day”
means,
      with respect to any Note, any day, other than a Saturday, Sunday or any other
      day on which banking institutions in The City of New York are authorized or
      obligated by law or executive order to close.

     

    “Change
      in Control”
means
      the occurrence at any time any of the following events: (1) consummation of
      any transaction or event (whether by means of a share exchange or tender offer
      applicable to Common Shares, a liquidation, consolidation, recapitalization,
      reclassification, combination or merger of the Company or a sale, lease or
      other
      transfer of all or substantially all of the consolidated assets of the Company)
      or a series of related transactions or events pursuant to which all of the
      outstanding Common Shares are exchanged for, converted into or constitute solely
      the right to receive, cash, securities or other property; (2) any “person” or
“group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the
      Exchange Act, whether or not applicable), other than the Company or any
      majority-owned subsidiary of the Company or any employee benefit plan of the
      Company or such subsidiary, is or becomes the “beneficial owner” (as defined in
      Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50%
      of
      the total voting power in the aggregate of all classes of shares of beneficial
      interest of the Company then outstanding entitled to vote generally in elections
      of the Company’s trust managers; or (3) during any period of 12 consecutive
      months after the date of original issuance of the Notes, persons who at the
      beginning of such 12-month period constituted the Board of Trust Managers of
      the
      Company, together with any new persons whose election was approved by a vote
      of
      a majority of the persons then still comprising the Board of Trust Managers
      of
      the Company who were either members of the Board of Trust Managers of the
      Company at the beginning of such period or whose election, designation or
      nomination for election was previously so approved, cease for any reason to
      constitute a majority of the Board of Trust Managers of the Company.
      Notwithstanding the foregoing, even if any of the events specified in the
      preceding clauses (1) through (3) have occurred, except as specified in clause
      (x), a Change in Control will not be deemed to have occurred if either: (x)
      the
      Closing Sale Price per Common Share for any five Trading Days within
      (i) the period of 10 consecutive Trading Days ending immediately after the
      later of the Change in Control or the public announcement of the Change in
      Control, in the case of a Change in Control relating to an acquisition of
      capital shares, or (ii) the period of 10 consecutive Trading Days ending
      immediately after the Change in Control, in the case of a Change in Control
      relating to a merger, consolidation or asset sale, equals or exceeds 105% of
      the
      Conversion Price applicable to the Notes in effect on each of those Trading
      Days; provided,
      however,
      that
      the exception to the definition of “Change in Control” specified in this clause
      (x) shall not apply in the context of a Change in Control for purposes of
      Section 2.10 or Section 2.11(d); or (y) at least 90% of the consideration
      (excluding cash payments for fractional shares and cash payments made pursuant
      to dissenters’ appraisal rights) in a merger, consolidation or other transaction
      otherwise constituting a Change in Control consists of common shares (or
      depositary receipts or other certificates representing common 

     

     

    
      
        
        

      

      
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    equity
      interests) traded on a U.S. national securities exchange or quoted on the Nasdaq
      National Market or another established automated over-the-counter trading market
      in the United States (or will be so traded or quoted immediately following
      such
      merger, consolidation or other transaction) and as a result of the merger,
      consolidation or other transaction the Notes become exchangeable into such
      common shares (or depositary receipts or other certificates representing common
      equity interests). For the purposes of this definition, “person” includes any
      syndicate or group that would be deemed to be a “person” under Section 13(d)(3)
      of the Exchange Act.

     

    “Change
      in Control Purchase Date”
has
      the
      meaning provided in Section 2.09 hereof.

     

    “Change
      in Control Purchase Notice”
has
      the
      meaning provided in Section 2.09 hereof.

     

    “Change
      in Control Purchase Price”
has
      the
      meaning provided in Section 2.09 hereof.

     

    “Closing
      Sale Price”
of
      the
      Common Shares or other capital shares or similar equity interests or other
      publicly traded securities on any date means the closing sale price per share
      (or, if no closing sale price is reported, the average of the closing bid and
      ask prices or, if more than one in either case, the average of the average
      closing bid and the average closing ask prices) on such date as reported on
      the
      principal U.S. securities exchange on which the Common Shares or such other
      capital shares or similar equity interests or other securities are traded or,
      if
      the Common Shares or such other capital shares or similar equity interests
      or
      other securities are not listed on a U.S. national or regional securities
      exchange, as reported by the Nasdaq National Market or by the National Quotation
      Bureau Incorporated or another established over-the-counter trading market
      in
      the United States. The Closing Sale Price shall be determined without regard
      to
      after-hours trading or extended market making. In the absence of the foregoing,
      the Company shall determine the Closing Sale Price on such basis as it considers
      appropriate.

     

    “Common
      Shares”
means
      common shares of beneficial interest, par value $0.03 per share, of the
      Company.

     

    “Company”
has
      the
      meaning provided in the first paragraph of this instrument until a successor
      Person shall have become such pursuant to the applicable provisions of the
      Indenture, and thereafter “Company” shall mean such successor
      Person.

     

    “Company
      Notice”
has
      the
      meaning provided in Section 2.09 hereof.

     

    “Conversion
      Agent”
means
      the
      office or agency designated by the Company where the Notes may be presented
      for
      conversion.

     

    “Conversion
      Price”
means,
      as of any date of determination, for $1,000 principal amount of Notes, the
      quotient of $1,000 divided by the Conversion Rate in effect as of such date,
      rounded to the nearest $0.01, with $0.005 rounded upward. 

     

    “Conversion
      Rate”
means
      the number of Common Shares by reference to which the Conversion Value shall
      be
      determined, which shall be initially 20.3770 Common Shares for each $1,000
      principal amount of Notes and as the same shall be adjusted from time to time
      in
      accordance with the provisions hereof and of the Notes.

     

     

    
      
        
        

      

      
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    “Conversion
      Value”
means,
      for each $1,000 principal amount of Notes, the product of (a) the
      applicable Conversion Rate, multiplied by (b) the Average Price.

     

    “Daily
      Share Amount” has
      the
      meaning provided in Section 2.12 hereof.

     

    “Depositary”
has
      the
      meaning provided in Section 2.03 hereof.

     

    “Effective
      Date”
has
      the
      meaning specified in Section 2.10.

     

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

     

    “Expiration
      Time”
has
      the
      meaning specified in Section 2.14.

     

    “Initial
      Purchasers”
means
      each of Citigroup Global Markets Inc., J.P. Morgan Securities Inc. and Morgan
      Stanley & Co. Incorporated (each, an “Initial Purchaser”).

     

    “interest”
means,
      when used
      with
      reference to the Notes, any interest payable under the terms of the Notes,
      including Additional Interest, if any, payable under the terms of the
      Registration Rights Agreement.

     

    “Indenture”
has
      the
      meaning provided in the preamble of this instrument.

     

    “Interest
      Payment Date”
has
      the
      meaning provided in Section 2.05 hereof.

     

    “Net
      Amount”
      has
      the
      meaning provided in Section 2.12 hereof.

     

    “Net
      Cash Amount”
      has
      the
      meaning provided in Section 2.12 hereof.

     

    “Net
      Shares”
      has
      the
      meaning provided in Section 2.12 hereof.

     

    “Notes”
has
      the
      meaning provided in Section 2.01 hereof which shall be substantially in the
      form
      attached as Exhibit A hereto.

     

    “Optional
      Repurchase Date”
has
      the
      meaning provided in Section 2.08 hereof.

     

    “Optional
      Repurchase Notice”
has
      the
      meaning provided in Section 2.08 hereof.

     

    “Optional
      Repurchase Price”
has
      the
      meaning provided in Section 2.08 hereof.

     

    “PORTALSM
      Market”
means
      The PORTAL Market operated by the Nasdaq Stock Market or any successor
      thereto.

     

    “Principal
      Return”
      has
      the
      meaning provided in Section 2.12 hereof.

     

    “Purchase
      Agreement”
means
      the Purchase Agreement, dated July 28, 2006, between the Company and the
      Initial Purchasers. 

     

    
      
        
        

      

      
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    “Redemption
      Date”
means,
      with respect to any Note or portion thereof to be redeemed in accordance with
      the provisions of Section 2.07 hereof, the date fixed for such redemption in
      accordance with the provisions of Section 2.07 hereof.

     

    “Redemption
      Price”
has
      the
      meaning provided in Section 2.07 hereof.

     

    “Reference
      Dividend”
has
      the
      meaning specified in Section 2.14.

     

    “Registration
      Rights Agreement”
means
      the Registration Rights Agreement, dated as of August 2, 2006, between the
Company
      and the
      Initial Purchasers, as amended from time to time in accordance with its
      terms.

     

    “Regular
      Record Date”
has
      the
      meaning provided in Section 2.05 hereof.

     

    “Restricted
      Securities”
has
      the
      meaning specified in Section 2.24.

     

    “Rule
      144A”
means
      Rule 144A as promulgated under the Securities Act as it may be amended from
      time
      to time hereafter.

     

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

     

    “Share
      Price”
has
      the
      meaning specified in Section 2.10.

     

    “Spin-Off”
has
      the
      meaning specified in Section 2.14.

     

    “Trading
      Day”
      means
      a day
      during which trading in securities generally occurs on the New York Stock
      Exchange or, if the Common Shares are not then listed on the New York Stock
      Exchange, on the principal other U.S. national or regional securities exchange
      on which Common Shares are then listed or, if the Common Shares are not then
      listed on a U.S. national or regional securities exchange, on the Nasdaq
      National Market or, if the Common Shares are not then quoted on the Nasdaq
      National Market, on the principal other market on which Common Shares are then
      traded.

     

    “Trading
      Price”
means,
      with respect to the Notes on any date of determination, the average of the
      secondary market bid quotations per $1,000 principal amount of Notes obtained
      by
      the Trustee for a $5,000,000 principal amount of Notes at approximately 3:30
      p.m., New York City time, on such determination date from two independent
      nationally recognized securities dealers selected by the Company, which may
      include one or more of the Initial Purchasers or any successor to such entities.
      If at least two such bids cannot reasonably be obtained by the Trustee, but
      one
      such bid can reasonably be obtained by the Trustee, then one bid shall be used.
      If the Trustee cannot reasonably obtain at least one bid for a $5,000,000
      principal amount of Notes from a nationally recognized securities dealer or,
      in
      the reasonable judgment of the Company, the bid quotations are not indicative
      of
      the secondary market value of the Notes, then the Trading Price per $1,000
      principal amount of Notes shall be deemed to be less than 98% of the product
      of
      the Closing Sale Price of the Common Shares and the Conversion Rate on such
      determination date.

     

    “Trust
      Indenture Act”
means
      the Trust Indenture Act of 1939, as amended.

     

     

    
      
        
        

      

      
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    ARTICLE
      TWO

    TERMS

     

    Section
      2.01.  Title.
      The
      Notes shall constitute a series of Securities designated as the “3.95%
      Convertible Senior Notes due 2026” of the Company.

     

    Section
      2.02.  Aggregate
      Principal Amount.
      The
      aggregate principal amount of Notes which may be authenticated and delivered
      under the Indenture is initially limited in aggregate principal amount to
      $575,000,000, except for Notes authenticated and delivered upon registration
      of
      transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections
      304, 305, 306, 906, 1107 or 1203 of the Indenture and except for any Notes
      which, pursuant to Section 303 of the Indenture, are deemed never to have been
      authenticated and delivered thereunder; provided that the Company may from
      time
      to time, without the consent of the Holders of the Notes, increase the principal
      amount of the Notes by issuing additional Securities in the future (the
“Additional
      Notes”)
      having
      the same terms and ranking equally and ratably with the Notes in all respects
      and with the same CUSIP number as the Notes, except for the difference in the
      issue price and interest accrued prior to the issue date of such Additional
      Notes, provided that such Additional Notes constitute part of the same issue
      as
      the Notes for U.S. federal income tax purposes. Any Additional Notes will be
      treated as a single series with the Notes under the Indenture and shall have
      the
      same terms as to status, redemption, repurchase, conversion and otherwise as
      the
      Notes. 

     

    Section
      2.03.  Registered
      Securities in Book-Entry Form.
      The
      Notes shall be issuable in the form of one or more global Securities registered
      in the name of The Depository Trust Company’s nominee, and shall be deposited
      with, or on behalf of, The Depository Trust Company, New York, New York (the
      “Depositary”).
      The
      Notes may be surrendered for registration of transfer and for conversion at
      the
      office or agency of the Company (including the Trustee) maintained for such
      purpose in the Borough of Manhattan, The City of New York, or at any other
      office or agency maintained by the Company for such purpose.

     

    Section
      2.04.  Stated
      Maturity of Principal.
      The
      Stated Maturity of the principal of the Notes shall be August 1,
      2026.

     

    Section
      2.05.  Interest.
      The
      Notes shall bear interest at the rate of 3.95% per annum from August 2,
      2006, or from the most recent Interest Payment Date to which interest has been
      paid or provided for, as the case may be, and will be payable semi-annually
      in
      arrears on February 1 and August 1 of each year (each, an
“Interest
      Payment Date”),
      commencing on February 1, 2007, until the principal thereof is paid or duly
      made available for payment, to the Persons in whose names such Notes are
      registered at the close of business on the January 15 or July 15
      (whether or not a Business Day) immediately preceding the applicable Interest
      Payment Date (each, a “Regular
      Record Date”).
      Interest payable on each Interest Payment Date shall equal the amount of
      interest accrued for the period commencing on and including the immediately
      preceding Interest Payment Date in respect of which interest has been paid
      (or
      commencing on and including August 2, 2006, if no interest has been paid)
      and ending on and including the day immediately preceding such Interest Payment
      Date. Interest on the Notes will be computed on the basis of a 360-day year
      consisting of twelve 30-day months.

     

     

    
      
        
        

      

      
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    If
      the
      Company shall redeem the Notes in accordance with the provisions of Section
      2.07
      hereof, or if a Holder shall surrender a Note for repurchase by the Company
      in
      accordance with the provisions of 2.08 or 2.09 hereof, subject to the next
      succeeding sentence, accrued and unpaid interest (including Additional Interest,
      if any) shall be payable to each Holder that shall have surrendered such Note
      for redemption or repurchase, as the case may be. However, if an Interest
      Payment Date shall fall on or prior to the Redemption Date or Optional
      Repurchase Date or Change in Control Purchase Date, as the case may be, for
      a
      Note, accrued and unpaid interest (including Additional Interest, if any) due
      on
      such Interest Payment Date shall be payable instead to the Person in whose
      name
      such Note is registered at the close of business on the related Regular Record
      Date.

     

    Section
      2.06.  Place
      of Payment. The
      principal of and the interest on the Notes shall be payable at the office or
      agency of the Company (including the Trustee) maintained for such purpose in
      the
      Borough of Manhattan, The City of New York in the in the manner specified in
      the
      Indenture.

     

    Section
      2.07.  Redemption.
      The
      Company shall not have the right to redeem any Notes prior to August 4,
      2011, except to preserve the Company’s status as a real estate investment trust.
      If, at any time, the Company determines it is necessary to redeem the Notes
      in
      order to preserve the Company’s status as a real estate investment trust, the
      Company may, upon not less than 30 nor more than 60 days’ prior written notice
      by mail to the Holders of the Notes, redeem the Notes in whole or in part,
      for
      cash equal to 100% of the principal amount of the Notes to be redeemed plus
      unpaid interest (including Additional Interest, if any) accrued thereon to
      the
      Redemption Date. In such case, the Company shall provide the Trustee with an
      Officers’ Certificate evidencing that the Board of Trust Managers of the Company
      has, in good faith, made the determination that it is necessary to redeem the
      Notes in order to preserve the Company’s status as a real estate investment
      trust.

     

    The
      Company shall have the right to redeem the Notes, in whole or in part at any
      time or from time to time, on or after August 4, 2011 upon not less than 30
      nor more than 60 days’ prior written notice by mail to the Holders of the Notes,
      at a redemption price (“Redemption
      Price”)
      for
      cash equal to 100% of the principal amount of the Notes to be redeemed plus
      unpaid interest (and Additional Interest, if any) accrued thereon to the
      Redemption Date. If less than all the Notes are to be redeemed, the Trustee
      shall select the Notes to be redeemed (in principal amounts of $1,000 and
      integral multiples thereof) on a pro
      rata basis
      or
      by such other method the Trustee considers fair and appropriate. The Trustee
      shall make the selection at least 30 days but not more than 60 days before
      the
      Redemption Date from Outstanding Notes not previously called for redemption.
      Notes and portions of the principal amount thereof selected for redemption
      shall
      be in integral multiples of $1,000. The Trustee shall notify the Company
      promptly of the Notes or portions of the principal amount thereof to be
      redeemed. If the Trustee selects a portion of a Note for partial redemption
      and
      a Holder converts a portion of the same Note in accordance with the provisions
      of Section 2.11 hereof 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 from the portion selected for redemption. Notes that have been
      converted during a selection of Notes to be redeemed shall be treated by the
      Trustee as Outstanding for the purpose of such selection.

     

     

    
      
        
        

      

      
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    In
      the
      event of any redemption in part, the Company shall not be required to: (i)
      issue
      or register the transfer or exchange of any Note during a period beginning
      at
      the opening of business 15 days before any selection of Notes for redemption
      and
      ending at the close of business on the earliest date on which the relevant
      notice of redemption is deemed to have been given to all Holders of Notes to
      be
      so redeemed, or (ii) register the transfer or exchange of any Note so
      selected for redemption, in whole or in part, except the unredeemed portion
      of
      any Note being redeemed in part.

     

    In
      addition to those matters set forth in Section 1104 of the Indenture, a notice
      of redemption sent to the Holders of Notes to be redeemed in accordance with
      the
      provisions of the two preceding paragraphs shall state:

     

    (a)  the
      name
      of the Paying Agent and Conversion Agent;

     

    (b)  the
      then
      current Conversion Rate;

     

    (c)  that
      Notes called for redemption may be converted at any time prior to the close
      of
      business on the third Business Day immediately preceding the Redemption Date;
      and

     

    (d)  that
      Holders who wish to convert Notes must comply with the procedures relating
      thereto specified in Section 2.13 hereof.

     

    Section
      2.08.  Repurchase
      Rights.
      A Holder
      of Notes shall have the right to require the Company to repurchase such Holder’s
      Notes, in whole or in part (in principal amounts of $1,000 or an integral
      multiple thereof), on each of August 1, 2011, August 1, 2016 and
      August 1, 2021 (each, an “Optional
      Repurchase Date”)
      for
      cash equal to 100% of the principal amount of the Notes to be repurchased plus
      unpaid interest (including Additional Interest, if any) accrued thereon to
      the
      Optional Repurchase Date (such amount, the “Optional
      Repurchase Price”),
      subject to satisfaction by or on behalf of the Holder of the requirements set
      forth below.

     

    On
      or
      before to the 30th day prior to each Optional Repurchase Date, the Company
      shall
      provide a written notice by first-class mail to the Trustee, any Paying Agent
      and all Holders (and to beneficial owners as required by applicable law). The
      notice shall include a form of Optional Repurchase Notice to be completed by
      the
      Holder and shall state:

     

    (a)  the
      date
      by which the Optional Repurchase Notice must be delivered to the Paying
      Agent;

     

    (b)  the
      Optional Repurchase Date;

     

    (c)  the
      Optional Repurchase Price;

     

    (d)  the
      name
      and address of the Trustee, the Paying Agent and the Conversion
      Agent;

     

    (e)  that
      Notes must be surrendered to the Paying Agent to collect payment of the Optional
      Repurchase Price;

     

    
      
        
        

      

      
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    (f)  that
      the
      Optional Repurchase Price for any Note as to which an Optional Repurchase Notice
      has been duly given will be paid within two Business Days after the later of
      the
      Optional Repurchase Date or the time at which such Notes are surrendered for
      repurchase;

     

    (g)  that,
      unless the Company defaults in making payment of the Optional Repurchase Price,
      interest on Notes surrendered for repurchase will cease to accrue on and after
      the Optional Repurchase Date; 

     

    (h)  that
      Notes in respect of which an Optional Repurchase Notice is provided by a Holder
      shall not be convertible in accordance with their terms even if otherwise
      convertible unless such Holder validly withdraws such Optional Repurchase Notice
      in accordance with the provisions of this Section 2.08; and

     

    (i)  the
      CUSIP
      number of the Notes.

     

    The
      Company shall also disseminate a press release through Dow Jones & Company,
      Inc. or Bloomberg Business News containing the information specified in such
      notice or publish such information in a newspaper of general circulation in
      The
      City of New York or on the Company’s website, or through such other public
      medium as the Company shall deem appropriate at such time.

     

    A
      Holder
      may exercise its rights specified in this Section 2.08 upon delivery of a
      written notice of repurchase (an “Optional
      Repurchase Notice”)
      to the
      Paying Agent during the period beginning at any time from the opening of
      business on the date that is 30 days prior to the applicable Optional Repurchase
      Date until the close of business on the third Business Day prior to such
      Optional Repurchase Date, stating:

     

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

     

    (b) the
      portion of the principal amount of the Notes to be repurchased, in integral
      multiples of $1,000, provided that the remaining principal amount of Notes
      is in
      an authorized denomination; and

     

    (c) that
      such
      Notes shall be repurchased pursuant to the applicable provisions hereof and
      the
      Notes.

     

    The
      Paying Agent shall promptly notify the Company in writing of the receipt by
      it
      of any Optional Repurchase Notice.

     

    Book-entry
      transfer of Notes in book-entry form in compliance with appropriate procedures
      of the Depositary or delivery of Notes in certificated form, together with
      all
      necessary endorsements, to the Paying Agent on or after the Optional Repurchase
      Date at the offices of the Paying Agent shall be a condition to the receipt
      by
      the Holder of the Optional Repurchase Price therefor. Holders electing to
      require the Company to repurchase Notes must effect such transfer or delivery
      to
      the Paying Agent prior to the Optional Repurchase Date to receive payment of
      the
      Optional Repurchase Price on or within two Business Days after the 

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    Optional
      Repurchase Date. The Company shall pay the Optional Repurchase Price within
      two
      Business Days after the later of the Optional Repurchase Date or the time of
      such transfer or delivery of the Notes.

     

    An
      Optional Repurchase Notice may be withdrawn in whole or in part by a Holder
      by
      means of a written notice of withdrawal delivered to the office of the Paying
      Agent prior to the close of business on the third Business Day prior to the
      Optional Repurchase Date specifying:

     

    (a) the
      Holder’s name;

     

    (b) the
      principal amount of Notes in respect of which the Optional Repurchase Notice
      is
      being withdrawn, which must be an integral multiple of $1,000;

     

    (c) if
      the
      Notes subject to the notice of withdrawal are in certificated form, the
      certificate number(s) of all Notes subject to the notice of withdrawal;
      and

     

    (d) the
      principal amount of Notes, if any, that remains subject to the Optional
      Repurchase Notice, which must be an integral multiple of $1,000.

     

    If
      Notes
      subject to the notice of withdrawal are in book-entry form, the above notices
      must also comply with the applicable procedures of the Depositary.

     

    On
      or
      before 10:00 a.m. (New York City time) on the Optional Repurchase Date, the
      Company shall deposit with the Paying Agent (or if the Company or an Affiliate
      of the Company is acting as the Paying Agent, shall segregate and hold in trust)
      money sufficient to pay the aggregate Optional Repurchase Price of the Notes
      to
      be repurchased pursuant to this Section 2.08. If the Paying Agent holds, in
      accordance with the terms of the Indenture, money sufficient to pay the Optional
      Repurchase Price of such Notes on the Optional Repurchase Date, then on and
      after such date, such Notes shall cease to be Outstanding and interest on such
      Notes shall cease to accrue, and all rights of the Holder of such Notes shall
      terminate (other than the right to receive the Optional Repurchase Price after
      delivery or transfer of the Notes). Such will be the case whether or not
      book-entry transfer of the Notes in book-entry form is made and whether or
      not
      Notes in certificated form, together with the necessary endorsements, are
      delivered to the Paying Agent.

     

    Notwithstanding
      the foregoing, no Notes may be repurchased by the Company in accordance with
      the
      provisions of this Section 2.08 if there has occurred and is continuing an
      Event
      of Default with respect to the Notes (other than a default in the payment of
      the
      Optional Repurchase Price).

     

    To
      the
      extent legally required in connection with a repurchase of Notes, the Company
      shall comply with the provisions of Rule 13e-4 and other tender offer rules
      under the Exchange Act then applicable, if any, and will file a Schedule TO
      or
      any other schedule required under the Exchange Act.

     

    The
      Company may arrange for a third party to purchase Notes for which the Company
      has received a valid Optional Repurchase Notice that has not been properly
      withdrawn, in the manner and otherwise in compliance with the requirements
      set
      forth herein and in the Notes. If a 

     

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

     

    third
      party purchases any Notes under such circumstances, then interest will continue
      to accrue on the Notes and such Notes will continue to be Outstanding after
      the
      Optional Repurchase Date for all purposes of the Indenture and will be fungible
      with all other Notes then Outstanding.

     

    Section
      2.09.  Repurchase
      at Option of Holders upon a Change in Control.
      If a
      Change in Control occurs at any time on or prior to August 4, 2011, a
      Holder of Notes shall have the right to require the Company to repurchase such
      Holder’s Notes, in whole or in part (in principal amounts of $1,000 or an
      integral multiple thereof) for cash equal to 100% of the principal amount of
      the
      Notes to be repurchased, plus unpaid interest (including Additional Interest,
      if
      any) accrued thereon to the Change in Control Purchase Date (such amount, the
      “Change
      in Control Purchase Price”),
      subject to satisfaction by or on behalf of the Holder of the requirements set
      forth below. If a Change in Control occurs after August 4, 2011, Holders of
      Notes will not have any right to require the Company to repurchase its Notes,
      except in accordance with Section 2.08.

     

    Within
      20
      days after the occurrence of a Change in Control, the Company shall mail a
      written notice of the particular Change in Control and of the repurchase right
      arising as a result of such Change in Control (the “Company
      Notice”)
      by
      first-class mail to the Trustee, any Paying Agent and to each Holder (and to
      beneficial owners as required by applicable law). The notice shall include
      a
      form of Change in Control Purchase Notice to be completed by the Holder and
      shall state:

     

    (a)  briefly,
      the events causing a Change in Control and the date of such Change in
      Control;

     

    (b)  the
      date
      by which the Change in Control Purchase Notice must be delivered to the Paying
      Agent;

     

    (c)  the
      date
      on which the Company will repurchase Notes upon a Change in Control, which
      must
      be not less than 15 days nor more than 30 days after the date of the Company
      Notice (such date, the “Change
      in Control Purchase Date”);

     

    (d)  the
      Change in Control Purchase Price;

     

    (e)  the
      name
      and address of the Trustee, the Paying Agent and the Conversion
      Agent;

     

    (f)  that
      Notes in respect of which a Change in Control Purchase Notice is provided by
      a
      Holder shall not be convertible unless such Holder validly withdraws such Change
      in Control Purchase Notice in accordance with the provisions of this Section
      2.09;

     

    (g)  that
      Notes must be surrendered to the Paying Agent to collect payment of the Change
      in Control Purchase Price;

     

    (h)  that
      the
      Change in Control Purchase Price for any Note as to which a Change in Control
      Purchase Notice has been duly given will be paid within two Business Days after
      the later of the Change in Control Purchase Date or the time at which such
      Notes
      are surrendered for repurchase;

     

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    (i)  that,
      unless the Company defaults in making payment of the Change in Control Purchase
      Price, interest on Notes surrendered for repurchase will cease to accrue on
      and
      after the Change in Control Purchase Date; and

     

    (j)  the
      CUSIP
      number of the Notes.

     

    The
      Company shall also disseminate a press release through Dow Jones & Company,
      Inc. or Bloomberg Business News announcing the occurrence of such Change in
      Control or publish such information in a newspaper of general circulation in
      The
      City of New York or on the Company’s website, or through such other public
      medium as the Company shall deem appropriate at such time.

     

    A
      Holder
      may exercise its rights specified in this Section 2.09 upon delivery of a
      written notice of such Holder’s exercise of its repurchase right (a
“Change
      in Control Purchase Notice”)
      to the
      Paying Agent at any time prior to the close of business on the third Business
      Day prior to the Change in Control Purchase Date, stating:

     

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

     

    (b) the
      portion of the principal amount of the Notes to be repurchased, in multiples
      of
      $1,000, provided that the remaining principal amount of Notes is in an
      authorized denomination; and

     

    (c) that
      such
      Note shall be repurchased pursuant to the applicable provisions hereof and
      of
      the Notes.

     

    The
      Paying Agent shall promptly notify the Company in writing of the receipt by
      it
      of any Change in Control Purchase Notice.

     

    Book-entry
      transfer of Notes in book-entry form in compliance with appropriate procedures
      of the Depositary or delivery of Notes in certificated form (together with
      all
      necessary endorsements) to the Paying Agent on or after the Change in Control
      Purchase Date at the offices of the Paying Agent shall be a condition to the
      receipt by the Holder of the Change in Control Purchase Price therefor. Holders
      electing to require the Company to repurchase Notes must effect such transfer
      or
      delivery to the Paying Agent prior to the Change in Control Purchase Date to
      receive payment of the Change in Control Purchase Price on or within two
      Business Days after the Change in Control Purchase Date. The Company shall
      pay
      the Change in Control Purchase Price within two Business Days after the later
      of
      the Change in Control Purchase Date or the time of such transfer or delivery
      of
      the Notes.

     

    A
      Change
      in Control Purchase Notice may be withdrawn in whole or in part by a Holder
      by
      means of a written notice of withdrawal delivered to the office of the Paying
      Agent prior to the close of business on the third Business Day prior to the
      Change in Control Purchase Date specifying:

     

    (a) the
      Holder’s name;

     

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

     

    (b) the
      principal amount of Notes in respect of which the Change in Control Purchase
      Notice is being withdrawn, which must be an integral multiple of
      $1,000;

     

    (c) if
      the
      Notes subject to the notice of withdrawal are in certificated form, the
      certificate number(s) of all Notes subject to the notice of withdrawal;
      and

     

    (d) the
      principal amount of Notes, if any, that remains subject to the Change in Control
      Purchase Notice, which must be an integral multiple of $1,000.

     

    If
      Notes
      subject to the notice of withdrawal are in book-entry form, the above notices
      must also comply with the applicable procedures of the Depositary.

     

    On
      or
      before 10:00 a.m. (New York City time) on the Change in Control Purchase Date,
      the Company shall deposit with the Paying Agent (or if the Company or an
      Affiliate of the Company is acting as the Paying Agent, shall segregate and
      hold
      in trust) money sufficient to pay the aggregate Change in Control Purchase
      Price
      of the Notes to be repurchased pursuant to this Section 2.09. If the Paying
      Agent holds, in accordance with the terms of the Indenture, money sufficient
      to
      pay the Change in Control Purchase Price of such Notes on the Change in Control
      Purchase Date, then, on and after such date, such Notes shall cease to be
      Outstanding and interest on such Notes shall cease to accrue and all rights
      of
      the Holders of such Notes shall terminate (other than the right to receive
      the
      Change in Control Purchase Price after delivery or transfer of the Notes).
      Such
      will be the case whether or not book-entry transfer of the Notes in book-entry
      form is made and whether or not Notes in certificated form, together with the
      necessary endorsements, are delivered to the Paying Agent.

     

    Notwithstanding
      the foregoing, no Notes may be repurchased by the Company in accordance with
      the
      provisions of this Section 2.09 if there has occurred and is continuing an
      Event
      of Default with respect to the Notes (other than a default in the payment of
      the
      Change in Control Purchase Price).

     

    To
      the
      extent legally required in connection with a repurchase of Notes, the Company
      shall comply with the provisions of Rule 13e-4 and other tender offer rules
      under the Exchange Act then applicable, if any, and will file a Schedule TO
      or
      any other schedule required under the Exchange Act.

     

    The
      Company may arrange for a third party to purchase Notes for which the Company
      has received a valid Change in Control Purchase Notice that has not been
      properly withdrawn, in the manner and otherwise in compliance with the
      requirements set forth herein and in the Notes. If a third party purchases
      any
      Notes under such circumstances, then interest will continue to accrue on the
      Notes and such Notes will continue to be Outstanding after the Change in Control
      Purchase Date for all purposes of the Indenture and will be fungible with all
      other Notes then Outstanding.

     

    Section
      2.10.  Make
      Whole Amount.
      If
      a
      Change in Control occurs on or prior to August 4, 2011 as a result of a
      transaction or event described in clauses (1) or (2) of the definition of Change
      in Control and a Holder elects to convert its Notes in connection with such
      Change in Control pursuant to Section 2.11(d) hereof, the Company shall increase
      the applicable Conversion Rate for such Notes surrendered for conversion by
      a
      number of additional Common Shares (the 

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    “Additional
      Shares”)
      as
      specified below. A conversion of Notes shall be deemed for these purposes to
      be
“in connection with” such a Change in Control if the notice of conversion of the
      Notes is received by the Conversion Agent on any date from and including the
      date that is the Effective Date (as defined below) of such Change in Control
      up
      to and including the 30th Business Day following the Effective Date of such
      Change in Control.

     

    The
      number of Additional Shares will be determined by reference to the table below
      and is based on the date on which such Change in Control transaction becomes
      effective (the “Effective
      Date”)
      and
      the price (the “Share
      Price”)
      paid
      per Common Share in such Change in Control transaction. If holders of Common
      Shares receive only cash in a Change in Control transaction, the Share Price
      shall be the cash amount paid per Common Share. In all other cases, the Share
      Price shall be the average of the Closing Sale Prices of the Common Shares
      on
      the 10 consecutive Trading Days up to but excluding the Effective
      Date.

     

    The
      Share
      Prices set forth in the first row of the table (i.e., the column headers) will
      be adjusted as of any date on which the Conversion Rate of the Notes is
      adjusted. The adjusted Share Prices will equal the Share Prices applicable
      immediately prior to such adjustment multiplied by a fraction, the numerator
      of
      which is the Conversion Rate immediately prior to the adjustment giving rise
      to
      the Share Price adjustment and the denominator of which is the Conversion Rate
      as so adjusted. In addition, the number of Additional Shares will be subject
      to
      adjustment in the same manner as the Conversion Rate in accordance with the
      provisions of Section 2.14 hereof.

     

    The
      following table sets forth the Share Price and number of Additional Shares
      to be
      received per $1,000 principal amount of Notes:

     

    
      	
              Effective

              Date

            	
              Share
                Price

            
	
              $39.26

            	
              $42.50

            	
              $45.00

            	
              $47.50

            	
              $50.00

            	
              $55.00

            	
              $60.00

            	
              $65.00

            	
              $70.00

            	
              $75.00

            	
              $80.00

            	
              $85.00

            
	
              August
                2, 2006    

            	
              5.0942

            	
              3.8996

            	
              3.1466

            	
              2.5348

            	
              2.0376

            	
              1.3060

            	
              0.8240

            	
              0.5074

            	
              0.3003

            	
              0.1659

            	
              0.0797

            	
              0.0256

            
	
              August
                1, 2007     

            	
              5.0942

            	
              3.8135

            	
              3.0371

            	
              2.4108

            	
              1.9067

            	
              1.1774

            	
              0.7106

            	
              0.4145

            	
              0.2284

            	
              0.1131

            	
              0.0433

            	
              0.0022

            
	
              August
                1, 2008

            	
              5.0942

            	
              3.6925

            	
              2.8847

            	
              2.2400

            	
              1.7283

            	
              1.0075

            	
              0.5671

            	
              0.3029

            	
              0.1477

            	
              0.0586

            	
              0.0089

            	
              0.0000

            
	
              August
                1, 2009

            	
              5.0942

            	
              3.5117

            	
              2.6552

            	
              1.9830

            	
              1.4623

            	
              0.7630

            	
              0.3718

            	
              0.1620

            	
              0.0541

            	
              0.0008

            	
              0.0000

            	
              0.0000

            
	
              August
                1, 2010

            	
              5.0942

            	
              3.2525

            	
              2.2928

            	
              1.5603

            	
              1.0222

            	
              0.3860

            	
              0.1147

            	
              0.0152

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            
	
              August
                4, 2011

            	
              5.0942

            	
              3.1686

            	
              1.8605

            	
              0.6901

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            	
              0.0000

            


    

    


    The
      exact
      Share Prices and Effective Dates may not be set forth in the table, in which
      case:

     

    (a)  if
      the
      Share Price is between two Share Price amounts in the table or the Effective
      Date is between two dates in the table, the Additional Shares will be determined
      by straight-line interpolation between the number of Additional Shares set
      forth
      for the higher and lower Share Price amounts and the two dates, as applicable,
      based on a 365-day year;

     

    (b)  if
      the
      Share Price is in excess of $85.00 per Common Share (subject to adjustment
      as
      specified in the second preceding paragraph), no Additional Shares will be
      issued upon a conversion of Notes; and

     

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    (c)  if
      the
      Share Price is less than $39.26 per Common Share (subject to adjustment as
      specified in the second preceding paragraph), no Additional Shares will be
      issued upon a conversion of Notes.

     

    Notwithstanding
      the foregoing, in no event shall the total number of Common Shares issuable
      upon
      a conversion of Notes exceed 25.4712 shares per $1,000 principal amount of
      Notes, subject to adjustment in the same manner as the Conversion Rate pursuant
      to Section 2.14 hereof.

     

    Section
      2.11.  Conversion
      Rights.

     

    Subject
      to the restrictions on ownership of the Common Shares as set forth in Section
      2.15 hereof and to the conditions set forth herein, Holders may surrender their
      Notes for conversion for cash, Common Shares or a combination of cash and Common
      Shares, at the Company’s option, at the applicable Conversion Rate prior to the
      close of business on the second Business Day immediately preceding the Stated
      Maturity of the Notes at any time on or after August 1, 2025 and also under
      any of the circumstances set forth in this Section 2.11.

     

    (a)
      Conversion Upon Satisfaction of Market Price Condition.
      A
      Holder may surrender any of its Notes for conversion during any calendar quarter
      beginning after December 31, 2006 (and only during such calendar quarter)
      if, and only if, the Closing Sale Price of the Common Shares for at least 20
      Trading Days (whether or not consecutive) in the period of 30 consecutive
      Trading Days ending on the last Trading Day of the preceding calendar quarter
      is
      more than 130% of the Conversion Price per Common Share in effect on the
      applicable Trading Day. The Board of Trust Managers of the Company shall make
      appropriate adjustments, in its good faith determination, to account for any
      adjustment to the Conversion Rate that becomes effective, or any event requiring
      an adjustment to the Conversion Rate where the ex-dividend date of the event
      occurs, during that 30 consecutive Trading-Day period.

     

    (b)
      Conversion Upon Satisfaction of Trading Price Condition.
      A
      Holder may surrender any of its Notes for conversion during the five consecutive
      Trading Day period following any five consecutive Trading Days in which the
      Trading Price per $1,000 principal amount of Notes (as determined following
      a
      reasonable request by a Holder of the Notes) was less than 98% of the product
      of
      the Closing Sale Price of the Common Shares multiplied by the Conversion Rate.
      

     

    The
      Trustee shall have no obligation to determine the Trading Price of the Notes
      unless the Company shall have requested such determination, and the Company
      shall have no obligation to make such request unless a Holder provides the
      Company with written reasonable evidence that the Trading Price per $1,000
      principal amount of the Notes would be less than 98% of the product of the
      Closing Sale Price of the Common Shares and the Conversion Rate, whereupon
      the
      Company shall instruct the Trustee to determine the Trading Price of the Notes
      beginning on the next Trading Day and on each successive Trading Day until
      the
      Trading Price is greater than or equal to 98% of the product of the Closing
      Sale
      Price of the Common Shares and the Conversion Rate.

     

    (c)
      Conversion Upon Notice of Redemption.
      A
      Holder may surrender for conversion any of the Notes called for redemption
      at
      any time prior to the close of business on the third Business 

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    Day
      prior
      to the Redemption Date, even if the Notes are not otherwise convertible at
      such
      time. The right to convert Notes pursuant to this clause (c) will expire after
      the close of business on the third Business Day prior to the Redemption Date
      unless the Company defaults in making the payment due upon redemption. A Holder
      may convert fewer than all of its Notes so long as the Notes converted are
      an
      integral multiple of $1,000 principal amount and the remaining principal amount
      of Notes is in an authorized denomination. However, if a Holder has already
      delivered an Optional Repurchase Notice or a Change in Control Purchase Notice
      with respect to a Note, such Holder may not surrender such Note for conversion
      until it has withdrawn such notice in accordance with the applicable provisions
      of Section 2.08 or 2.09 hereof, as the case may be.

     

    (d)
      Conversion Upon Specified Transactions.
      If the
      Company elects to:

     

    (i)  distribute
      to all holders of Common Shares rights entitling them to purchase, for a period
      expiring within 45 days, Common Shares at less than the Closing Sale Price
      of
      the Common Shares on the Trading Day immediately preceding the declaration
      date
      of the distribution; or

     

    (ii)  distribute
      to all holders of Common Shares assets, debt securities or certain rights to
      purchase securities of the Company, which distribution has a per share value
      exceeding 10% of the Closing Sale Price of the Common Shares on the Trading
      Day
      immediately preceding the declaration date of such distribution,

     

    the
      Company shall notify the Holders of the Notes in writing at least 20 days prior
      to the ex-dividend date for such distribution. Following the giving of such
      notice, Holders may surrender their Notes for conversion at any time until
      the
      earlier of the close of business on the Business Day immediately prior to the
      ex-dividend date or an announcement that such distribution will not take place;
      provided,
      however,
      that a
      Holder may not exercise this right to convert if the Holder may participate,
      on
      an as-converted basis, in the distribution without a conversion of Notes. The
      ex-dividend date is the first date upon which a sale of the Common Shares does
      not automatically transfer the right to receive the relevant distribution from
      the seller of Common Shares to its buyer.

     

    In
      addition, if the Company is party to a consolidation, merger or binding share
      exchange pursuant to which all of the Common Shares would be exchanged for
      cash,
      securities or other property that is not otherwise a Change in Control, a Holder
      may surrender Notes for conversion at any time from and including the date
      that
      is 15 Business Days prior to the Effective Date of the transaction up to and
      including five Business Days after the actual date of such transaction. The
      Company shall notify Holders as promptly as practicable following the date
      it
      publicly announces such transaction (but in no event less than 15 Business
      Days
      prior to the anticipated effective time of such transaction).

     

    If
      a
      Change in Control occurs as a result of a transaction described in clauses
      (1)
      or (2) of the definition of “Change in Control”, a Holder will have the right to
      convert its Notes at any time from and including the Effective Date of such
      transaction up to and including the 30th Business Day following the Effective
      Date of the transaction, provided that, if a Holder has already delivered an
      Optional Repurchase Notice or a Change in Control Purchase Notice with


     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    respect
      to a Note, such Holder may not surrender such Note for conversion until it
      has
      withdrawn such notice in accordance with the applicable provisions of Section
      2.08 or 2.09 hereof, as the case may be. The Company will notify Holders as
      promptly as practicable following the date that it publicly announces such
      Change in Control (but in no event later than five Business Days prior to the
      Effective Date of such Change in Control).

     

    If
      the
      Company is a party to a consolidation, merger or binding share exchange pursuant
      to which all of the Common Shares are exchanged for cash, securities or other
      property, then at the Effective Date of the transaction any conversion of Notes
      and the Conversion Value will be based on the kind and amount of cash,
      securities or other property that the Holder would have received if such Holder
      had converted its Notes for Common Shares immediately prior to the Effective
      Date of the transaction. For purposes of the foregoing, where a consolidation,
      merger or binding share exchange involves a transaction that causes Common
      Shares to be exchanged into the right to receive more than a single type of
      consideration based upon any form of shareholder election, such consideration
      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. If a Change of Control occurs on or prior to August 4,
      2011 as a result of a transaction described in clauses (1) or (2) of the
      definition thereof, the Company will adjust the Conversion Rate for Notes
      surrendered for conversion in connection with such a Change in Control
      transaction, as described in Section 2.10 hereof. 

     

    (e)
      Conversion
      Upon Delisting of the Common Shares.
      A
      Holder of Notes may surrender any of its Notes for conversion at any time
      beginning on the first Business Day after the Common Shares have ceased to
      be
      listed on a U.S. national or regional securities exchange or quoted on the
      Nasdaq National Market for a 30 consecutive Trading Day period.

     

    Section
      2.12.  Conversion
      Settlement.
      Upon a
      conversion of Notes, the Company shall deliver, in respect of each $1,000
      principal amount of Notes surrendered for conversion in accordance with their
      terms:

     

    (a)  cash
      in
      an amount (the “Principal
      Return”)
      equal
      to the lesser of (1) the principal amount of the Notes surrendered for
      conversion and (2) the Conversion Value, and 

     

    (b)  if
      the
      Conversion Value is greater than the Principal Return, an amount (the
“Net
      Amount”)
      in
      cash or Common Shares with an aggregate value equal to the difference between
      the Conversion Value and the Principal Return.

     

    The
      Company may elect to deliver any portion of the Net Amount in cash (the
“Net
      Cash Amount”)
      or
      Common Shares, and any portion of the Net Amount the Company elects to deliver
      in Common Shares (the “Net
      Shares”)
      will
      be the sum of the Daily Share Amounts for each Trading Day during the Applicable
      Conversion Period. Prior to the close of business on the second Trading Day
      following the date on which Notes are surrendered for conversion, the Company
      shall inform Holders of such Notes of its election to pay cash for all or a
      portion of the Net Amount and, if applicable, the portion of the Net Amount
      that
      will be paid in cash and the portion that will be delivered in the form of
      Net
      Shares.

     

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    The
      Company shall deliver cash in lieu of any fractional Common Shares issuable
      in
      connection with payment of the Net Shares based upon the Average
      Price.

     

    The
      “Daily
      Share Amount”
for
      each $1,000 principal amount of Notes and each Trading Day in the Applicable
      Conversion Period is equal to the greater of:

     

    (a) zero;
      and

     

    (b) a
      number
      of Common Shares determined by the following formula:

     

    where

     

    (CSP
      x CR) - ($1,000 + Net Cash Amount, if any)

    ______________________________________

                                   
        10 x CSP


     

    CSP
      means
      the Closing Sale Price of the Common Shares on such Trading Day,
      and

    


    CR
      means
      the applicable Conversion Rate

     

    The
      Company will determine the Conversion Value, Principal Return, Net Amount,
      Net
      Cash Amount and the number of Net Shares, as applicable, promptly after the
      end
      of the Applicable Conversion Period. The Company shall pay the Principal Return
      and cash in lieu of fractional shares, and deliver Net Shares or pay the Net
      Cash Amount, as applicable, no later than the third Business Day following
      the
      last Trading Day of the Applicable Conversion Period.

     

    Section
      2.13.  Conversion
      Procedures.
      To
      convert Notes, a Holder must satisfy the requirements set forth in this Section
      2.13.

     

    To
      convert the Notes, a Holder must (a) complete and manually sign the
      irrevocable conversion notice on the reverse of the Note (or complete and
      manually sign a facsimile of such notice) and deliver such notice to the
      Conversion Agent at the office maintained by the Conversion Agent for such
      purpose, (b) with respect to Notes which are in certificated form,
      surrender the Notes to the Conversion Agent, or, if the Notes are in book-entry
      form, comply with the appropriate procedures of the Depositary, (c) furnish
      appropriate endorsements and transfer documents if required by the Conversion
      Agent, the Company or the Trustee and (d) pay any transfer or similar tax,
      if required. The date on which the Holder satisfies all such requirements shall
      be deemed to be the date on which the applicable Notes shall have been tendered
      for conversion. 

     

    Notes
      in
      respect of which a Holder has delivered an Optional Repurchase Notice or Change
      in Control Purchase Notice may be converted only if such notice is withdrawn
      in
      accordance with the terms of Section 2.08 or Section 2.09, as the case may
      be.

     

    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 

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    denominations
      in an aggregate principal amount equal to the portion of the surrendered Notes
      not surrendered for conversion. A Holder may convert fewer than all of such
      Holder’s Notes so long as the Notes converted are an integral multiple of $1,000
      principal amount.

     

    Upon
      surrender of a Note for conversion by a Holder, such Holder shall deliver to
      the
      Company cash equal to the amount that the Company is required to deduct and
      withhold under applicable law in connection with the conversion; provided,
      however,
      if the
      Holder does not deliver such cash, the Company may deduct and withhold from
      the
      amount of consideration otherwise deliverable to such Holder the amount required
      to be deducted and withheld under applicable law.

     

    Upon
      conversion of a Note, a Holder will not receive any cash payment representing
      accrued and unpaid interest on such Note, except as specified in the immediately
      preceding paragraph. Instead, upon a conversion of Notes, the Company will
      deliver to surrendering Holder only the consideration specified in Section
      2.12.
      Delivery of cash and Common Shares, if any, upon a conversion of Notes will
      be
      deemed to satisfy the Company’s obligation to pay the principal of the Notes and
      any accrued and unpaid interest thereon. Accordingly, upon a conversion of
      Notes, any accrued and unpaid interest will be deemed paid in full rather than
      cancelled, extinguished or forfeited. In no event will the Conversion Rate
      be
      adjusted to account for accrued and unpaid interest on the Notes.

     

    Holders
      of Notes at the close of business on a Regular Record Date for an interest
      payment will receive payment of interest payable on the corresponding Interest
      Payment Date notwithstanding the conversion of such Notes at any time after
      the
      close of business on the applicable Regular Record Date. Notes surrendered
      for
      conversion by a Holder after the close of business on any Regular Record Date
      for an interest payment and on or prior to the corresponding Interest Payment
      Date must be accompanied by payment of an amount equal to the interest that
      such
      Holder is to receive on such Notes on such Interest Payment Date; provided,
      however,
      that no
      such payment shall be required to be made (1) if such Notes have been called
      for
      redemption on a Redemption Date that is after such Regular Record Date and
      on or
      prior to such Interest Payment Date or (2) with respect to overdue interest
      (including Additional Interest), if any overdue interest exists at the time
      of
      conversion with respect to such Notes. 

     

    Upon
      conversion of a Note, the Company, if it elects to deliver Net Shares, will
      pay
      any documentary, stamp or similar issue or transfer tax due on the issue of
      the
      Net Shares upon such conversion unless the tax is due because the Holder
      requests the Net Shares to be issued or delivered to a Person other than the
      Holder, in which case the Holder must pay the tax due prior to the delivery
      of
      such Net Shares. Certificates representing Common Shares will not be issued
      or
      delivered unless all taxes and duties, if any, payable by the Holder have been
      paid.

     

    A
      Holder
      of Notes, as such, shall not be entitled to any rights of a holder of Common
      Shares. Such Holder shall only acquire such rights upon the delivery by the
      Company, at its option, of Net Shares in accordance with the provisions of
      Section 2.12 upon a conversion of Notes by a Holder.

     

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

     

    If
      a
      Holder converts more than one Note at the same time, the number of Net Shares,
      if any, issuable upon the conversion shall be based on the total principal
      amount of the Notes surrendered for conversion.

     

    The
      Company shall, prior to issuance of any Notes hereunder, and from time to time
      as may be necessary, reserve out of its authorized but unissued Common Shares
      a
      sufficient number of Common Shares to permit the conversion of the Notes at
      the
      applicable Conversion Rate. Any Common Shares delivered upon a conversion of
      Notes shall be newly issued shares or treasury shares, shall be duly and validly
      issued and fully paid and nonassessable and shall be free from preemptive rights
      and free of any lien or adverse claim.

     

    The
      Company shall endeavor promptly to comply with all federal and state securities
      laws regulating the issuance and delivery of Common Shares, if any, upon a
      conversion of Notes and shall cause to have listed or quoted all such Common
      Shares on each U.S. national securities exchange or over-the-counter or other
      domestic market on which the Common Shares are then listed or
      quoted.

     

    Except
      as
      set forth herein, no other payment or adjustment for interest shall be made
      upon
      conversion of Notes. 

     

    Section
      2.14.  Conversion
      Rate Adjustments.
      The
      Conversion Rate shall be adjusted from time to time as follows:

     

    (a)  If
      the
      Company issues Common Shares as a dividend or distribution on Common Shares
      to
      all holders of Common Shares, or if the Company effects a share split or share
      combination, the Conversion Rate will be adjusted based on the following
      formula:

     

    

      
        	
                CR1
                  = 

                 

              	
                CR0
                  x OS1/OS0

                 

              
	
                where

                 

              	
                 

              
	
                CR0
                  = 

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event 

                 

              
	
                CR1
                  = 

                 

              	
                the
                  new Conversion Rate in effect taking such event into account

                 

              
	
                OS0
                  = 

                 

              	
                the
                  number of Common Shares outstanding immediately prior to such
                  event

                 

              
	
                OS1
                  = 

                 

              	
                the
                  number of Common Shares outstanding immediately after such
                  event.

                 

              


      

    

     

    Any
      adjustment made pursuant to this clause (a) shall become effective on the date
      that is immediately after (x) the date fixed for the determination of
      shareholders entitled to receive such dividend or other distribution or
      (y) the date on which such split or combination becomes effective, as
      applicable. If any dividend or distribution described in this clause (a) is
      declared but not so paid or made, the new Conversion Rate shall be 

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    readjusted
      to the Conversion Rate that would then be in effect if such dividend or
      distribution had not been declared.

     

    (b)  If
      the
      Company issues to all holders of Common Shares any rights, warrants, options
      or
      other securities entitling them for a period of not more than 45 days after
      the
      date of issuance thereof to subscribe for or purchase Common Shares, or if
      the
      Company issues to all holders of Common Shares securities convertible into
      Common Shares for a period of not more than 45 days after the date of issuance
      thereof, in either case at an exercise price per Common Share or a conversion
      price per Common Share less than the Closing Sale Price of the Common Shares
      on
      the Business Day immediately preceding the time of announcement of such
      issuance, the Conversion Rate will be adjusted based on the following
      formula:

     

    

      
        	
                CR1
                  =

                 

              	
                CR0
                  x (OS0+X)/(OS0+Y)

                 

              
	
                where

                 

              	 
	
                CR0
                  = 

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event

                 

              
	
                CR1
                  = 

                 

              	
                the
                  new Conversion Rate taking such event into account

                 

              
	
                OS0
                  = 

                 

              	
                the
                  number of Common Shares outstanding immediately prior to such
                  event

                 

              
	
                X
                  =

                 

              	
                the
                  total number of Common Shares issuable pursuant to such rights,
                  warrants,
                  options, other securities or convertible securities

                 

              
	
                Y
                  =
                  

                 

              	
                the
                  number of Common Shares equal to the quotient of (A) the aggregate
                  price payable to exercise such rights, warrants, options, other
                  securities
                  or convertible securities and (B) the average of the Closing Sale
                  Prices of the Common Shares for the 10 consecutive Trading Days
                  prior to
                  the Business Day immediately preceding the date of announcement
                  for the
                  issuance of such rights, warrants, options, other securities or
                  convertible securities.

                 

              


      

    

     

    For
      purposes of this clause (b), in determining whether any rights, warrants,
      options, other securities or convertible securities entitle the holders to
      subscribe for or purchase, or exercise a conversion right for, Common Shares
      at
      less than the applicable Closing Sale Price of the Common Shares, and in
      determining the aggregate exercise or conversion price payable for such Common
      Shares, there shall be taken into account any consideration received by the
      Company for such rights, warrants, options, other securities or convertible
      securities and any amount payable on exercise or conversion thereof, with the
      value of such consideration, if other than cash, to be determined by the Board
      of Trust Managers of the Company. If any right, warrant, option, other security
      or convertible security described in this clause (b) is not exercised or
      converted prior to the expiration of the exercisability or convertibility
      thereof, the new Conversion Rate shall be readjusted to 

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    the
      Conversion Rate that would then be in effect if such right, warrant, option,
      other security or convertible security had not been so issued.

     

    (c)  If
      the
      Company distributes capital shares, evidences of indebtedness or other assets
      or
      property of the Company to all holders of Common Shares, excluding:

     

    (i)  dividends,
      distributions, rights, warrants, options, other securities or convertible
      securities referred to in clause (a) or (b) above,

     

    (ii)  dividends
      or distributions paid exclusively in cash, and

     

    (iii)  Spin-Offs
      described below in this clause (c),

     

    then
      the
      Conversion Rate will be adjusted based on the following formula:

     

    
      
        	
                CR1
                  =

                 

              	
                CR0
                  x SP0/(SP0-FMV)

                 

              
	
                where

                 

              	 
	
                CR0
                  = 

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event

                 

              
	
                CR1
                  = 

                 

              	
                the
                  new Conversion Rate taking such event into account

                 

              
	
                SP0
                  = 

                 

              	
                the
                  average of the Closing Sale Prices of the Common Shares for the
                  10
                  consecutive Trading Days prior to the Business Day immediately
                  preceding
                  the earlier of the record date or the ex-dividend date for such
                  distribution

                 

              
	
                FMV=

                 

              	
                the
                  fair market value (as determined in good faith by the Board of
                  Trust
                  Managers of the Company) of the capital shares, evidences of indebtedness,
                  assets or property distributed with respect to each outstanding
                  Common
                  Share on the earlier of the record date or the ex-dividend date
                  for such
                  distribution.

                 

              


      

    

    An
      adjustment to the Conversion Rate made pursuant to the immediately preceding
      clause shall be made successively whenever any such distribution is made and
      shall become effective on the day immediately after the date fixed for the
      determination of holders of Common Shares entitled to receive such
      distribution.

     

    If
      the
      Company distributes to all holders of Common Shares capital shares of any class
      or series, or similar equity interest, of or relating to a subsidiary or other
      business unit of the Company (a “Spin-Off”),
      the
      Conversion Rate in effect immediately before the close of business on the date
      fixed for determination of holders of Common Shares entitled to receive such
      distribution will be adjusted based on the following formula:

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    

      
        	
                CR1
                  =

                 

              	
                CR0
                  x (FMV0+MP0)/MP0

                 

              
	
                where

                 

              	 
	
                CR0
                  =

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event

                 

              
	
                CR1
                  =

                 

              	
                the
                  new Conversion Rate taking such event into account

                 

              
	
                FMV0
                  =

                 

              	
                the
                  average of the Closing Sale Prices of the capital shares or similar
                  equity
                  interest distributed to holders of Common Shares applicable to
                  one Common
                  Share over the first 10 consecutive Trading Days after the effective
                  date
                  of the Spin-Off

                 

              
	
                MP0
                  = 

                 

              	
                the
                  average of the Closing Sale Prices of the Common Shares over the
                  first 10
                  consecutive Trading Days after the effective date of the
                  Spin-Off.

                 

              


      

    

     

    An
      adjustment to the Conversion Rate made pursuant to the immediately preceding
      clause will occur on the 10th Trading Day from and including the effective
      date
      of the Spin-Off.

     

    If
      any
      such dividend or distribution described in this clause (c) is declared but
      not
      paid or made, the new Conversion Rate shall be readjusted to be the Conversion
      Rate that would then be in effect if such dividend or distribution had not
      been
      declared.

     

    (d)  If
      the
      Company pays or makes any cash dividend or distribution in respect of any of
      its
      quarterly fiscal periods (without regard to when paid) to all holders of Common
      Shares in an aggregate amount that, together with other cash dividends or
      distributions made in respect of such quarterly fiscal period, exceeds the
      product of $0.465 (the “Reference
      Dividend”)
      multiplied by the number of Common Shares outstanding on the record date for
      such distribution, the Conversion Rate will be adjusted based on the following
      formula:

     

    

      
        	
                CR1
                  =

                 

              	
                CR0
                  x SP0/(SP0-C)

                 

              
	
                where

                 

              	 
	
                CR0
                  =

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event

                 

              
	
                CR1
                  =

                 

              	
                the
                  new Conversion Rate taking such event into account

                 

              
	
                SP0
                  =

                 

              	
                the
                  average of the Closing Sale Prices of Common Shares for the 10
                  consecutive
                  Trading Days prior to the Business Day immediately preceding the
                  earlier
                  of the record date or the day prior to the ex-dividend date for
                  such
                  distribution

                 

              


      

    

     

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    

      
        	
                C
                  =

                 

              	
                the
                  amount in cash per Common Share that the Company distributes to
                  holders of
                  Common Shares in respect of such quarterly fiscal period that exceeds
                  the
                  Reference Dividend.

                 

              


      

    

    An
      adjustment to the Conversion Rate made pursuant to this clause (d) shall become
      effective on the date immediately after the date fixed for the determination
      of
      holders of Common Shares entitled to receive such dividend or distribution.
      If
      any dividend or distribution described in this clause (d) is declared but not
      so
      paid or made, the new Conversion Rate shall be readjusted to the Conversion
      Rate
      that would then be in effect if such dividend or distribution had not been
      declared.

     

    The
      Reference Dividend shall be subject to adjustment on account of any of the
      events set forth in clauses (a), (b) and (c) above and clause (e) below.
      Any such adjustment will be effected by multiplying the Reference Dividend
      by a
      fraction, the numerator of which will equal the Conversion Rate in effect
      immediately prior to the adjustment on account of such event and the denominator
      of which will equal the Conversion Rate as adjusted.

     

    (e)  If
      the
      Company or any of its subsidiaries makes a payment in respect of a tender offer
      or exchange offer for Common Shares to the extent that the cash and value of
      any
      other consideration included in the payment per Common Share exceeds the Closing
      Sale Price of a Common Share on the Trading Day next succeeding the last date
      on
      which tenders or exchanges may be made pursuant to such tender or exchange
      offer
      (the “Expiration
      Time”),
      the
      Conversion Rate will be adjusted based on the following formula:

    

      
        	
                CR1
                  = 

                 

              	
                CR0
                  x (AC + (SP1 x OS1))/(SP1 x OS0)

                 

              
	
                where

                 

              	 
	
                CR0
                  =

                 

              	
                the
                  Conversion Rate in effect immediately prior to the adjustment relating
                  to
                  such event

                 

              
	
                CR1
                  =

                 

              	
                the
                  new Conversion Rate taking such event into account

                 

              
	
                AC
                  =

                 

              	
                the
                  aggregate value of all cash and any other consideration (as determined
                  by
                  the Board of Trust Managers of the Company) paid or payable for
                  Common
                  Shares purchased in such tender or exchange offer

                 

              
	
                OS0
                  =

                 

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

                 

              
	
                OS1
                  =

                 

              	
                the
                  number of Common Shares outstanding immediately after such tender
                  or
                  exchange offer expires (after giving effect to the purchase or
                  exchange of
                  shares pursuant to such tender or exchange offer)

                 

              


      

    

     

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    

      
        	
                SP1
                  =

                 

              	
                the
                  average of the Closing Sale Prices of Common Shares for the 10
                  consecutive
                  Trading Days commencing on the Trading Day next succeeding the
                  date such
                  tender or exchange offer expires.

                 

              


      

    

    If
      the
      application of the foregoing formula would result in a decrease in the
      Conversion Rate, no adjustment to the Conversion Rate will be made.

     

    Any
      adjustment to the Conversion Rate made pursuant to this clause (e) shall become
      effective on the date immediately following the Expiration Time. If the Company
      or one of its subsidiaries is obligated to purchase Common Shares pursuant
      to
      any such tender or exchange offer but is permanently prevented by applicable
      law
      from effecting any such purchase or all such purchases are rescinded, the new
      Conversion Rate shall be readjusted to be the Conversion Rate that would be
      in
      effect if such tender or exchange offer had not been made.

     

    (f)  Notwithstanding
      the foregoing, in the event of an adjustment to the Conversion Rate pursuant
      to
      clause (d) or (e) above, in no event will the Conversion Rate exceed 25.4712
      per
      $1,000 principal amount of Notes, subject to adjustment pursuant to clauses
      (a),
      (b) and (c) above.

     

    (g)  If
      the
      Company has in effect a rights plan while any Notes remain Outstanding, Holders
      of Notes will receive, upon a conversion of Notes in respect of which the
      Company has elected to deliver Net Shares, in addition to such Net Shares,
      rights under the Company’s shareholder rights agreement unless, prior to
      conversion, the rights have expired, terminated or been redeemed or unless
      the
      rights have separated from the Common Shares. If the rights provided for in
      the
      rights plan adopted by the Company have separated from the Common Shares in
      accordance with the provisions of the applicable shareholder rights agreement
      so
      that Holders of Notes would not be entitled to receive any rights in respect
      of
      Common Shares that the Company elects to deliver as Net Shares upon conversion
      of Notes, the Conversion Rate will be adjusted at the time of separation as
      if
      the Company had distributed to all holders of Common Shares capital shares,
      evidences of indebtedness or other assets or property pursuant to clause (c)
      above, subject to readjustment upon the subsequent expiration, termination
      or
      redemption of the rights. In lieu of any such adjustment, the Company may amend
      such applicable shareholder rights agreement to provide that upon a conversion
      of Notes the Holders will receive, in addition to Common Shares that the Company
      elects to deliver as Net Shares upon such conversion, the rights which would
      have attached to such Common Shares if the rights had not become separated
      from
      the Common Shares under such applicable shareholder rights agreement. To the
      extent that the Company adopts any future shareholder rights agreement, upon
      a
      conversion of Notes in respect of which the Company elects to deliver Common
      Shares as Net Shares, a Holder of Notes shall receive, in addition to such
      Common Shares, the rights under the future shareholder rights agreement whether
      or not the rights have separated from Common Shares at the time of conversion
      and no adjustment will be made in accordance with clause (c) or
      otherwise.

     

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    In
      addition to the adjustments pursuant to clauses (a) through (g) above, the
      Company may increase the Conversion Rate in order to avoid or diminish any
      income tax to holders of Common Shares resulting from any dividend or
      distribution of capital shares (or rights to acquire Common Shares) or from
      any
      event treated as such for income tax purposes. The Company may also, from time
      to time, to the extent permitted by applicable law, increase the Conversion
      Rate
      by any amount for any period if the Company has determined that such increase
      would be in the best interests of the Company. If the Company makes such
      determination, it will be conclusive and the Company will mail to Holders of
      the
      Notes a notice of the increased Conversion Rate and the period during which
      it
      will be in effect at least fifteen (15) days prior to the date the increased
      Conversion Rate takes effect in accordance with applicable law.

     

    If,
      in
      connection with any adjustment to the Conversion Rate as set forth in this
      Section 2.14 a Holder shall be deemed for U.S. federal tax purposes to have
      received a distribution, the Company may set off any withholding tax it
      reasonably believes it is required to collect with respect to any such deemed
      distribution against cash payments of interest in accordance with the provisions
      of Section 2.05 hereof or from cash and Common Shares, if any, otherwise
      deliverable to a Holder upon a conversion of Notes in accordance with the
      provisions of Section 2.12 hereof or a redemption or repurchase of a Note in
      accordance with the provisions of Section 2.07, 2.08 or 2.09
      hereof.

     

    The
      Company will not make any adjustment to the Conversion Rate if Holders of the
      Notes are permitted to participate, on an as-converted basis, in the
      transactions described above.

     

    Notwithstanding
      anything to the contrary contained herein, in addition to the other events
      set
      forth herein on account of which no adjustment to the Conversion Rate shall
      be
      made, the applicable Conversion Rate shall not be adjusted for:

     

    (i)  the
      issuance of any Common Shares pursuant to any present or future plan providing
      for the reinvestment of dividends or interest payable on securities
      of the Company and the investment of additional optional amounts in Common
      Shares under any plan;

     

    (ii)  the
      issuance of any Common Shares or options or rights to purchase those shares
      pursuant to any present or future employee, trust manager or consultant benefit
      plan, employee agreement or arrangement or program of the Company;

     

    (iii)  the
      issuance of any Common Shares pursuant to any option, warrant, right, or
      exercisable, exchangeable or convertible security outstanding as of the date
      the
      Notes were first issued;

     

    (iv)  a
      change
      in the par value of the Common Shares;

     

    (v)  accumulated
      and unpaid dividends or distributions; and

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

     

    (vi)  as
      a
      result of a tender offer solely to holders of fewer than 100 Common
      Shares.

     

    No
      adjustment in the Conversion Rate will be required unless the adjustment would
      require an increase or decrease of at least 1% of the Conversion Price. If
      the
      adjustment is not made because the adjustment does not change the Conversion
      Price by at least 1%, then the adjustment that is not made will be carried
      forward and taken into account in any future adjustment. All required
      calculations will be made to the nearest cent or 1/1000th of a share, as the
      case may be. Notwithstanding the foregoing, if the Notes are called for
      redemption, all adjustments not previously made will be made on the applicable
      Redemption Date.

     

    Whenever
      the Conversion Rate is adjusted as herein provided, the Company shall, as
      promptly as reasonably practicable, 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. 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 Holders of the Notes within 20 Business Days of the
      effective date of such adjustment. Failure to deliver such notice shall not
      affect the legality or validity of any such adjustment.

     

    For
      purposes of this Section 2.14, 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
      anything in this Section 2.14 to the contrary, in no event shall the Conversion
      Rate be adjusted so that the Conversion Rate would be less than
      $0.01.

     

    Section
      2.15.  Ownership
      Limit; Withholding.
      Notwithstanding any other provision of the Notes or the instructions contained
      herein, no Holder of Notes shall be entitled to convert such Notes for Common
      Shares to the extent that receipt of such shares would cause such Holder
      (together with such Holder’s affiliates) to exceed the ownership limit contained
      in the Declaration of Trust of the Company as in effect from time to
      time.

     

    At
      the
      Maturity of the principal of the Notes, whether at Stated Maturity or upon
      earlier redemption or repurchase of Notes or otherwise, and as otherwise
      required by law, the Company may deduct and withhold from the amount of
      consideration otherwise deliverable to such Holder the amount required to be
      deducted and withheld under applicable law.

     

    Section
      2.16.  Merger,
      Consolidation or Sale.

     

    Section
      801 of the Indenture, for purposes of the Notes, is hereby modified and amended
      to include the following additional proviso:

     

    “(3)
      if
      as a result of such transaction the Notes become exchangeable into common stock
      or other securities issued by a third party, such third party shall assume
      or
      fully and unconditionally guarantee all obligations under the Notes and the
      Indenture.”

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    Section
      2.17.  Satisfaction
      and Discharge.
      The
      provisions of ARTICLE FOURTEEN of the Indenture shall not be applicable to
      the
      Notes. The Company may satisfy and discharge its obligations under the Indenture
      by delivering to the Trustee for cancellation all Outstanding Notes or by
      depositing with the Trustee, the Paying Agent or the Conversion Agent, if
      applicable, after the Notes have become due and payable, whether on the date
      of
      the Stated Maturity of the principal amount of the Notes, any Redemption Date,
      Optional Repurchase Date or Change in Control Purchase Date or upon conversion
      or otherwise, cash or Common Shares in accordance with the terms hereof
      sufficient to pay all of the Outstanding Notes and paying all other sums payable
      under the Notes and the Indenture in respect of the Notes.

     

    Section
      2.18.  Events
      of Default; Waiver of Past Defaults.

     

    (a)  Section
      501 of the Indenture is modified and amended for purposes of the Notes to add
      the following Events of Default as clauses (9) and (10):

     

    “default
      in the delivery when due of the Conversion Value, on the terms set forth herein
      and in the Notes, upon exercise of a Holder’s conversion right in accordance
      with the terms hereof and of the Notes and the continuation of such default
      for
      10 days;”

     

    -
      and
      -

     

    “failure
      of the Company to provide a Company Notice within 20 days after the occurrence
      of a Change in Control as provided in Section 2.09 of the First Supplemental
      Indenture.”

     

    (b)  Section
      508 of the Indenture is modified and amended for purposes of the Notes to read
      as follows: 

     

    “Notwithstanding
      any other provision in this Indenture, the Holder of any Note shall have the
      right which is absolute and unconditional to receive payment of the principal
      of
      (and premium, if any), Conversion Value and (subject to Sections 305 and 307)
      interest on, and any Additional Amounts in respect of, such Note on the
      respective due dates expressed in such Note (or, in the case of redemption
      on
      the Redemption Date) and to institute suit for the enforcement of any such
      payment, and such rights shall not be impaired without the consent of such
      Holder.”

     

    (c)  Section
      513 of the Indenture is modified and amended for purposes of the Notes to add
      the following as clause (3):

     

    (3)
“in
      respect of the failure to convert any Notes in accordance with the provisions
      of
      this Indenture.”

     

    Section
      2.19.  Modification.
      Section
      902 of the Indenture is modified for purposes of the Notes to read as
      follows:

     

    “With
      the
      consent of the Holders of a majority in principal amount of all Outstanding
      Securities affected by such supplemental indenture (voting together as a single
      class), by Act of said Holders delivered to the Company and the Trustee, the
      Company, when authorized by or 

     

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    pursuant
      to a Board Resolution and the Trustee may enter into an indenture or indentures
      supplemental hereto for the purpose of adding any provisions to or changing
      in
      any manner or eliminating any of the provisions of this Indenture or of
      modifying in any manner the rights of the Holders of Securities under this
      Indenture; provided, however, that no such supplemental indenture shall, without
      the consent of the Holder of each Outstanding Note affected thereby:


     

    (1)  change
      the Stated Maturity of the principal of, or any installment of interest
      (including Additional Interest, if any) on, the Notes; 

     

    (2)  reduce
      the principal amount of, the rate of interest (including Additional Interest,
      if
      any) on, or change the timing or reduce the amount payable on the redemption
      of,
      the Notes; 

     

    (3)  make
      any
      change that impairs or adversely affects the rights of a Holder to convert
      Notes
      in accordance herewith; 

     

    (4)  change
      the Place of Payment, or the coin or currency, for payment of principal of,
      or
      interest (including Additional Interest, if any) on, the Notes; 

     

    (5)  impair
      the right to institute suit for the enforcement of any payment on or with
      respect to Notes or the delivery of the Conversion Value as required by the
      Indenture upon a conversion of Notes; 

     

    (6)  reduce
      the percentage in principal amount of the Outstanding Notes, the consent of
      whose Holders is required for any such supplemental indenture, or the consent
      of
      whose Holders is required for any waiver with respect to the Outstanding Notes
      (or compliance with specified provisions of the Indenture or specified defaults
      and consequences thereunder) or to reduce the quorum or voting requirements
      set
      forth in the Indenture; or

     

    (7)  modify
      any of the provisions of this Section 902 or Section 513 of the Indenture,
      except to increase the required percentage to effect such action or to provide
      that specified other provisions of the Indenture may not be modified or waived
      without the consent of the Holders of each Outstanding Note affected
      thereby.

     

    It
      shall
      not be necessary for any Act of Holders under this Section 2.19 to approve
      the
      particular form of any proposed supplemental indenture, but it shall be
      sufficient if such Act shall approve the substance thereof. 

     

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

     

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

     

    Section
      2.20.  Certain
      Covenants Not Applicable to the Notes.
      The
      Notes shall not be entitled to the benefits of the covenants set forth in
      Section 1004 and Section 1013 of the Indenture.

     

    Section
      2.21.  Calculations
      in Respect of the Notes. Except
      as
      otherwise specifically stated herein or in the Notes, all calculations to be
      made in respect of the Notes shall be the obligation of the Company. All
      calculations made by the Company or its agent as contemplated pursuant to the
      terms hereof and of the Notes shall be made in good faith and be final and
      binding on the Company and the Holders absent manifest error. The Company shall
      provide a schedule of calculations to the Trustee, and the Trustee shall be
      entitled to rely upon the accuracy of the calculations by the Company without
      independent verification. The Trustee shall forward calculations made by the
      Company to any Holder of Notes upon written request within 20 Business Days
      after the effective date of any adjustment.

     

    Section
      2.22.  Authorized
      Denominations. The
      Notes
      shall be issued in denominations of $1,000 and integral multiples thereof and
      payments of principal, interest (including Additional Interest) and Additional
      Amounts, if any, on the Notes shall be made in U.S. dollars.

     

    Section
      2.23.  Conversion
      Agent, Paying Agent and Securities Registrar. JPMorgan
      Chase Bank, National Association, is hereby appointed as Conversion Agent,
      Paying Agent and the Security Registrar for the Notes. The Security Register
      for
      the Notes will be maintained by the Security Registrar at the Trustee’s
      Corporate Trust Office. The rights, privileges, protections, immunities and
      benefits given to the Trustee pursuant to the Indenture, including, without
      limitation, its right to be indemnified, are extended to, and shall be
      enforceable by, the Trustee in each of its capacities with respect to the
      Notes.

     

    Section
      2.24.  Restrictions
      on Transfer.
      (a)
Every
      Note (and all Notes issued in exchange therefor or in substitution thereof)
      that
      bears or is required under this Section 2.24(a) to bear the legend set forth
      in
      this Section 2.24(a) (together with any Common Shares issued upon conversion
      of
      the Notes, collectively, the “Restricted
      Securities”)
      shall
      be subject to the restrictions on transfer set forth in this Section 2.24(a)
      (including those set forth in the legend below) unless such restrictions on
      transfer shall be waived by written consent of the Company, and the Holder
      of
      each such Restricted Security, by such Holder’s acceptance thereof, agrees to be
      bound by all such restrictions on transfer. As used in this Section 2.24(a),
      the
      term “transfer” means any sale, pledge, loan, transfer or other disposition
      whatsoever of any Restricted Security or any interest therein.

     

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

     

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    THIS
      SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
      (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR
      SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
      THE HOLDER:

     

    (1) REPRESENTS
      THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
      THE SECURITIES ACT) IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
      RULE
      144A UNDER THE SECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE
      WITH
      RULE 144A UNDER THE SECURITIES ACT;

     

    (2) AGREES
      THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
      OF
      THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR AN AFFILIATE THEREOF
      WAS
      THE OWNER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY OR THE
      COMMON SHARES ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE
      COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A QUALIFIED INSTITUTIONAL BUYER
      IN
      COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE
      EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
      (IF AVAILABLE), OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
      DECLARED EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE
      AT THE TIME OF SUCH TRANSFER; AND

     

    (3) AGREES
      THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHER
      THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
      SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
      OF
      THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF
      THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR AN AFFILIATE THEREOF
      WAS
      THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
      ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
      SECURITY TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE
      PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR
      TO
      SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE),
      SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR
      THE
      TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
      PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
      UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(C) OR
      2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL ISSUE
      DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR AN AFFILIATE
      THEREOF WAS THE OWNER OF THIS SECURITY.

     

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    PURSUANT
      TO SECTIONS 1271 THROUGH 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
      THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT. TO OBTAIN
      (I) THE ISSUE PRICE OF THIS SECURITY, (II) THE AMOUNT OF ORIGINAL
      ISSUE DISCOUNT, (III) THE ISSUE DATE, AND (IV) THE YIELD TO MATURITY;
      CONTACT INVESTOR RELATIONS AT 2600 CITADEL PLAZA DRIVE SUITE 300, HOUSTON,
      TEXAS
      77008 OR BY PHONE AT (713) 866-6000.

     

    THE
      HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS
      AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE
      HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY
      WITH
      THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.

     

    Any
      Notes
      that are Restricted Securities and as to which such restrictions on transfer
      shall have expired in accordance with their terms or as to conditions for
      removal of the foregoing legend set forth therein have been satisfied may,
      upon
      surrender of such Note for exchange to the Securities Registrar in accordance
      with the provisions of this Section 2.24, be exchanged for a new Note or Notes,
      of like tenor and aggregate principal amount, which shall not bear the
      restrictive legend required by this Section 2.24(a). If such Restricted Security
      surrendered for exchange is represented by a global Note bearing the legend
      set
      forth in this Section 2.24(a), the principal amount of the legended global
      Note
      shall be reduced by the appropriate principal amount and the principal amount
      of
      a global Note without the legend set forth in this Section 2.24(a) shall be
      increased by an equal principal amount. If a global Note without the legend
      set
      forth in this Section 2.24(a) is not then Outstanding, the Issuer shall execute
      and the Trustee shall authenticate and deliver an unlegended global Note to
      the
      Depositary.

     

    In
      the
      event Rule 144(k) under the Securities Act (or any successor provision) is
      amended to shorten the two-year period under Rule 144(k), then, the references
      in the restrictive legends set forth above to “TWO YEARS,” and in the
      corresponding transfer restrictions described above, and in the Notes and the
      Common Shares will be deemed to refer to such shorter period, from and after
      receipt by the Trustee of an Officers’ Certificate and an Opinion of Counsel to
      that effect. As soon as reasonably practicable after the Company knows of the
      effectiveness of any such amendment to shorten the two-year period under Rule
      144(k), unless such changes would otherwise be prohibited by, or would cause
      a
      violation of, the federal securities laws applicable at the time, the Company
      will provide to the Trustee an Officers’ Certificate and an Opinion of Counsel
      as to the effectiveness of such amendment and the effectiveness of such change
      to the restrictive legends and transfer restrictions.

     

    (b)
      Any
      Restricted Securities, prior to the expiration of the holding period applicable
      to sales thereof under Rule 144(k) under the Securities Act (or any successor
      provision), purchased or owned by the Company or any Affiliate thereof may
      not
      be resold by the Company or such Affiliate and will be surrendered to the
      Trustee for cancellation. Upon expiration of the holding period applicable
      to
      Restricted Securities under Rule 144(k) under the Securities Act (or any
      successor provision), the Notes may, to the extent permitted by applicable
      law,
      be reissued or sold or may be surrendered to the Trustee for cancellation.
      Any
      Notes surrendered for cancellation may not be reissued or resold and will be
      canceled promptly by the Trustee.

     

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    (c)
      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.

     

    Section
      2.25.  Rule
      144A Information Requirement.
      Within
      the period prior to the expiration of the holding period applicable to sales
      thereof under Rule 144(k) under the Securities Act (or any successor provision),
      the Company covenants and agrees that it shall, during any period in which
      it is
      not subject to Section 13 or 15(d) under the Exchange Act, make available to
      any
      Holder or beneficial owner of Notes or any Common Shares issued upon conversion
      thereof which continue to be Restricted Securities in connection with any sale
      thereof and any prospective purchaser of Notes or such Common Shares designated
      by such Holder or beneficial owner, the information required pursuant to Rule
      144A(d)(4) under the Securities Act upon the request of any Holder or beneficial
      owner of the Notes or such Common Shares, all to the extent required to enable
      such Holder or beneficial owner to sell its Notes or Common Shares without
      registration under the Securities Act within the limitation of the exemption
      provided by Rule 144A.

     

    Section
      2.26.  Provision
      of Financial Information.
      The
      Company, for so long as any Notes are Outstanding, within 15 days after it
      is
      required to file the same with the Commission, will furnish to the Holders
      of
      the Notes, or cause the Trustee to furnish to the Holders of the Notes, all
      annual, quarterly and other reports that it may be required to file with the
      Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery
      of such reports, information and documents to the Trustee is for informational
      purposes only and the Trustee’s receipt of such shall not constitute
      constructive notice of any information contained therein or determinable from
      information contained therein, including the Company’s compliance with any of
      its covenants hereunder (as to which the Trustee is entitled to rely exclusively
      on an Officers’ Certificate). If the Company is not required to file the
      foregoing forms or reports with the Commission, then it will file with the
      Trustee and the Commission such reports as may be prescribed by the Commission
      at such time.

     

    Section
      2.27.  Additional
      Interest Notice.
      In the
      event that the Company is required to pay Additional Interest to Holders of
      Notes pursuant to the Registration Rights Agreement, the Company will provide
      written notice (“Additional
      Interest Notice”)
      to the
      Trustee of its obligation to pay Additional Interest no later than fifteen
      (15)
      calendar days prior to the proposed payment date for Additional Interest, and
      the Additional Interest Notice shall set forth the amount of Additional Interest
      to be paid by the Company on such payment date. The Trustee shall not at any
      time be under any duty or responsibility to any Holder of Notes to determine
      the
      Additional Interest, or with respect to the nature, extent or calculation of
      the
      amount of Additional Interest when made, or with respect to the method employed
      in such calculation of the Additional Interest.

     

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      THREE 

    FORM
      OF
      NOTES

     

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

     

    ARTICLE
      FOUR

    MISCELLANEOUS

     

    Section
      4.01.  Relation
      to Original Indenture.
      This
      First Supplemental Indenture supplements the Original Indenture and shall be
      a
      part of and subject to all the terms thereof. Except as supplemented hereby,
      all
      of the terms, provisions and conditions of the Original Indenture and the
      Securities issued thereunder shall continue in full force and effect.


     

    Section
      4.02.  Concerning
      the Trustee.
      The
      Trustee shall not be responsible for any recital herein, as such recitals shall
      be taken as statements of the Company, or the validity of the execution by
      the
      Company of this First Supplemental Indenture. The Trustee makes no
      representations as to the validity or sufficiency of this instrument.


     

    Section
      4.03.  Effect
      of Headings.
      The
      Article and Section headings herein are for convenience of reference only and
      shall not affect the construction hereof. 

     

    Section
      4.04.  Counterparts.
      This
      instrument may be executed in counterparts, each of which shall be deemed an
      original, but all of which shall together constitute one and the same
      instrument.

     

    Section
      4.05.  Governing
      Law.
      This
      instrument shall be governed by and construed in accordance with the laws of
      the
      State of New York. 

     

    [signature
      page follows]

     

    


     


    
      
        
        

      

      
        35

        
          

        

      

      
        
        

        
        

      

    

    
EXECUTION
      COPY

     

    
 

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

     

     

    
      	
              WEINGARTEN
                REALTY INVESTORS

            
	 	 
	 	 
	
              By:

            	
              /s/
                Stephen C. Richter

            
	 	
              Stephen
                C. Richter

            
	 	
              Executive
                Vice President and Chief Financial Officer

            
	 	 
	 	 
	 	 
	
              JPMORGAN
                CHASE BANK, NATIONAL ASSOCIATION

            
	 	 
	 	 
	
              By:

            	
              /s/
                Mauri J. Cowen

            
	 	
              Mauri
                J. Cowen

            
	 	
              Vice
                President and Trust Officer

            


    

    


    



    
      
        
        

      

      
        36

        
          

        

      

      
        
        

        
        

      

    



    Exhibit
      A

    


    


    [FORM
      OF
      NOTE]

     

    [Include
      only for Global Notes]

     

    UNLESS
      THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
      COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR
      REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE 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.

     

    UNLESS
      AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
      FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE
      THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
      OR
      ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
      SUCCESSOR.

     

    [Include
      only for Notes that are Restricted Securities]

     

    THIS
      SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
      (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR
      SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF,
      THE HOLDER:

     

    (1) REPRESENTS
      THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER
      THE SECURITIES ACT), IS AWARE THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
      RULE 144A UNDER THE SECURITIES ACT AND IS PURCHASING THIS SECURITY IN COMPLIANCE
      WITH RULE 144A UNDER THE SECURITIES ACT;

     

    (2) AGREES
      THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
      OF
      THIS SECURITY AND THE LAST DATE ON WHICH WEINGARTEN REALTY INVESTORS (THE
“COMPANY”) OR AN AFFILIATE THEREOF WAS THE OWNER OF THIS SECURITY, RESELL OR
      OTHERWISE TRANSFER THIS SECURITY OR THE COMMON SHARES ISSUABLE UPON CONVERSION
      OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B)
      TO A
      QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
      SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
      RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (D) PURSUANT TO A
      REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
      ACT AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;
      AND

     

     

    
      
        
        

      

      
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    (3) AGREES
      THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED (OTHER
      THAN A TRANSFER PURSUANT TO CLAUSE 2(C) OR 2(D) ABOVE) A NOTICE
      SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER
      OF
      THIS SECURITY WITHIN TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE OF
      THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR AN AFFILIATE THEREOF
      WAS
      THE OWNER OF THIS SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
      ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
      SECURITY TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE
      PROPOSED TRANSFER IS PURSUANT TO CLAUSE 2(C) ABOVE, THE HOLDER MUST, PRIOR
      TO
      SUCH TRANSFER, FURNISH TO THE TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE),
      SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR
      THE
      TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
      PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED
      UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(C) OR
      2(D) ABOVE OR THE EXPIRATION OF TWO YEARS FROM THE LATER OF THE ORIGINAL ISSUE
      DATE OF THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR AN AFFILIATE
      THEREOF WAS THE OWNER OF THIS SECURITY.

     

    [Include
      for all Notes]

     

    PURSUANT
      TO SECTIONS 1271 THROUGH 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
      THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT. TO OBTAIN
      (I) THE ISSUE PRICE OF THIS SECURITY, (II) THE AMOUNT OF ORIGINAL
      ISSUE DISCOUNT, (III) THE ISSUE DATE, AND (IV) THE YIELD TO MATURITY;
      CONTACT INVESTOR RELATIONS AT 2600 CITADEL PLAZA DRIVE SUITE 300, HOUSTON,
      TEXAS
      77008 OR BY PHONE AT (713) 866-6000.

     

    [Include
      only for Notes that are Restricted Securities]

     

    THE
      HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A REGISTRATION RIGHTS
      AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED TO ON THE REVERSE
      HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY AND TO COMPLY
      WITH
      THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.

     


    
      
        
        

      

      
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                NO.
                  _____

                 

              	
                PRINCIPAL
                  AMOUNT

                 

              
	
                CUSIP
                  NO. 948741 AE 3

                 

              	
                $____________________

                 

              


      

    

     

    


     

    WEINGARTEN
      REALTY INVESTORS

     

    3.95%
      Convertible Senior Note due 2026

     

    WEINGARTEN
      REALTY INVESTORS, a Texas real estate investment trust (the “Company”, which
      term shall include any successor under the Indenture hereinafter referred to),
      for value received, hereby promises to pay to Cede & Co., or its registered
      assigns, the principal sum of _________________ Dollars ($____________) on
      August 1, 2026 unless redeemed, repurchased or converted prior to such date
      in accordance with the terms hereof and of the Indenture.

     

    This
      Note
      shall bear interest as specified on the reverse hereof. This Note is convertible
      for the consideration specified on the reverse hereof. This Note is subject
      to
      redemption by the Company at its option and to repurchase by the Company at
      the
      option of the Holder as specified on the reverse hereof. 

     

    Reference
      is hereby made to the further provisions of this Note set forth on the reverse
      hereof, which further provisions shall for all purposes have the same effect
      as
      if set forth at this place.

     

    This
      Note
      shall not be entitled to the benefits of the Indenture or be valid or become
      obligatory for any purpose until the certificate of authentication hereon shall
      have been signed by the Trustee.

     

    


     


    
      
        
        

      

      
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    IN
      WITNESS WHEREOF, the Company has caused this Note to be signed manually or
      by
      facsimile by an authorized signatory.

     

    Dated:
      August 2, 2006

     

    

      
        	
                WEINGARTEN
                  REALTY INVESTORS

                 

              
	
                By:
                  

              	 
	 	
                Name:
                  

              
	 	
                Title:

              
	 	 
	 	 
	
                By:
                  

              	 
	 	
                Name:
                  

              
	 	
                Title:
                  

              


      

    

     

    

      
        	
                Attest:

                 

              
	
                Name:
                  

              
	
                Title:
                  

                 

              


      

    

     

     

    


     

    TRUSTEE’S
      CERTIFICATE OF AUTHENTICATION

     

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

     

    

      
        	
                JPMORGAN
                  CHASE BANK, NATIONAL ASSOCIATION

                as
                  Trustee

              
	 	 
	
                By:

              	 
	 	
                Authorized
                  Signatory

              


      

    

     

    
      
        
        

      

      
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    [REVERSE
      OF NOTE] 

     

    WEINGARTEN
      REALTY INVESTORS

     

    3.95%
      Convertible Senior Note due 2026

     

    This
      Note
      is one of a duly authorized issue of notes, debentures, bonds, or other
      evidences of indebtedness of the Company (hereinafter called the “Securities”)
      of the series hereinafter specified, all issued or to be issued under and
      pursuant to an Indenture, dated as of May 1, 1995 (as amended and
      supplemented by the First Supplemental Indenture, dated as of August 2,
      2006, and as further amended or supplemented from time to time, the
“Indenture”), duly executed and delivered by Weingarten Realty Investors, a
      Texas real estate investment trust (“Weingarten” or the “Company”), to JPMorgan
      Chase Bank, National Association, as trustee (the “Trustee,” which term includes
      any successor trustee under the Indenture with respect to the series of
      Securities of which this Note is a part), and reference is hereby made to the
      Indenture, and all modifications and amendments and indentures supplemental
      thereto relating to the Notes, for a description of the rights, limitations
      of
      rights, obligations, duties, and immunities thereunder of the Trustee, the
      Company, and the Holders of the Notes and the terms upon which the Notes are
      authenticated and delivered. The Securities may be issued in one or more series,
      which different series may be issued in various aggregate principal amounts,
      may
      mature at different times, may accrue interest (if any) at different rates
      or
      formulas and may otherwise vary as provided in the Indenture. This Note is
      one
      of a series of Securities designated as the “3.95% Convertible Senior Notes due
      2026” of the Company, initially limited (except as permitted under the
      Indenture) in aggregate principal amount to $575,000,000. Terms used herein
      without definition and which are defined in the Indenture have the meanings
      assigned to them in the Indenture.

     

    
      	1.  	
              INTEREST
                

            


    

     

    The
      Notes
      shall bear interest at the rate of 3.95% per annum from August 2, 2006 or
      from the most recent Interest Payment Date (as defined below) to which interest
      has been paid or duly provided for, as the case may be, payable semi-annually
      in
      arrears on February 1 and August 1 of each year (each, an “Interest
      Payment Date”), commencing on February 1, 2007, until the principal hereof
      is paid or duly made available for payment. Interest payable on each Interest
      Payment Date shall equal the amount of interest accrued for the period
      commencing on and including the immediately preceding Interest Payment Date
      in
      respect of which interest has been paid or duly provided for (or commencing
      on
      and including August 2, 2006, if no interest has been paid or duly provided
      for) and ending on and including the day immediately preceding such Interest
      Payment Date. Interest on the Notes will be computed on the basis of a 360-day
      year consisting of twelve 30-day months.

     

    
      	2.  	
              METHOD
                OF PAYMENT 

            


    

     

    Except
      as
      provided in the Indenture, the Company shall pay interest on the Notes to the
      Persons who are Holders of record of Notes at the close of business (whether
      or
      not a Business Day) on the January 15 and July 15 immediately
      preceding the applicable Interest Payment Date (each, a “Regular Record Date”).
      Holders must surrender Notes to a Paying Agent and comply 

     

    
      
        
        

      

      
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    with
      the
      other terms of the Indenture to collect the principal amount, Redemption Price,
      Optional Repurchase Price or Change in Control Purchase Price of the Notes,
      plus, if applicable, accrued and unpaid interest (including Additional Interest,
      if any) payable as herein provided at maturity, upon redemption at the Company’s
      option or repurchase at the Holder’s option. The Company shall pay, in money of
      the United States that at the time of payment is legal tender for payment of
      public and private debts, all amounts due in cash with respect to the Notes
      on
      the dates and in the manner provided in this Note and the
      Indenture.

     

    
      	3.  	
              PAYING
                AGENT, CONVERSION AGENT AND SECURITY REGISTRAR
                

            


    

     

    Initially,
      the Trustee shall act as Paying Agent, Conversion Agent and Security Registrar.
      The Company hereby initially designates the Corporate Trust Office of the
      Trustee in New York, New York as the office to be maintained by it where this
      Note may be presented for payment, registration of transfer or exchange, where
      notices or demands to or upon the Company in respect of this Note or the
      Indenture may be served and where the Notes may be surrendered for conversion
      in
      accordance with the provisions of paragraph 6 hereof and the Indenture. The
      Company may appoint and change any Paying Agent, Conversion Agent, Security
      Registrar or co-registrar or approve a change in the office through which any
      Paying Agent acts without notice, other than notice to the Trustee.


     

    
      	4.  	
              REDEMPTION
                BY THE COMPANY

            


    

     

    The
      Company shall not have the right to redeem any Notes prior to August 4,
      2011, except to preserve the status of the Company as a real estate investment
      trust. If the Company determines it is necessary to redeem the Notes in order
      to
      preserve the status of the Company as a real estate investment trust, the
      Company may redeem the Notes then Outstanding, in whole or in part, at 100%
      of
      the principal amount of the Notes to be redeemed plus unpaid interest (including
      Additional Interest, if any) accrued thereon to the Redemption
      Date.

     

    The
      Company shall have the right to redeem the Notes for cash, in whole or in part
      at any time or from time to time, on or after August 4, 2011 at 100% of the
      principal amount of the Notes to be redeemed plus unpaid interest (including
      Additional Interest, if any) accrued thereon to the Redemption Date (the
“Redemption Price”).

     

    Notice
      of
      redemption at the option of the Company shall be mailed at least 30 days but
      not
      more than 60 days before the Redemption Date to each Holder of Notes to be
      redeemed at the Holder’s registered address. Notes in denominations larger than
      $1,000 principal amount may be redeemed in part but only in integral multiples
      of $1,000 principal amount.

     

    
      	5.  	
              OPTIONAL
                REPURCHASE RIGHTS;

              REPURCHASE
                AT OPTION OF HOLDER UPON A CHANGE IN
                CONTROL

            


    

     

    (a) Subject
      to the terms and conditions of the Indenture, a Holder shall have the right
      to
      require the Company to repurchase all of its Notes, or any portion of the
      principal amount thereof that is equal to $1,000 or an integral multiple
      thereof, on each of August 1, 2011, August 1, 2016 and August 1,
      2021 (each, an “Optional Repurchase Date”) for cash equal to 100% of the
      principal amount of the Notes to be repurchased plus unpaid interest (including
      Additional Interest, if any) accrued thereon to such Optional Repurchase Date
      (the “Optional 

     

    
      
        
        

      

      
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    Repurchase
      Price”), upon delivery to the Paying Agent of an Optional Repurchase Notice
      containing the information set forth in the Indenture, from the opening of
      business on the date that is 30 days prior to such Optional Repurchase Date
      until the close of business on the third Business Day prior to such Optional
      Repurchase Date and upon compliance with the other terms of the Indenture.
      

     

    (b) If
      a
      Change in Control occurs at any time on or prior to August 4, 2011, a
      Holder shall have the right, at such Holder’s option and subject to the terms
      and conditions of the Indenture, to require the Company to repurchase all or
      any
      of such Holder’s Notes having a principal amount equal to $1,000 or an integral
      multiple thereof on the date (the “Change in Control Purchase Date”) specified
      by the Company in the Company Notice (which date shall be no earlier than 15
      days and no later than 30 days after the date of such Company Notice) for cash
      equal to the 100% of the principal amount of the Notes to be repurchased plus
      unpaid interest (including Additional Interest, if any) accrued thereon to
      the
      Change in Control Purchase Date (the “Change in Control Purchase Price”).


     

    (c) Holders
      have the right to withdraw any Optional Repurchase Notice or Change in Control
      Purchase Notice, as the case may be, by delivery to the Paying Agent of a
      written notice of withdrawal in accordance with the provisions of the Indenture.
      

     

    (d) If
      the
      Paying Agent holds, in accordance with the terms of the Indenture, money
      sufficient to pay the Optional Repurchase Price or Change in Control Purchase
      Price of such Notes on the Optional Repurchase Date or Change in Control
      Purchase Date, as the case may be, then, on and after such date, such Notes
      shall cease to be Outstanding and interest on such Notes shall cease to accrue,
      and all other rights of the Holder shall terminate (other than the right to
      receive the Optional Repurchase Price or Change in Control Purchase Price upon
      delivery or transfer of the Notes). 

     

    
      	6.  	
              CONVERSION

            


    

     

    The
      Notes
      shall be convertible into the consideration specified in the Indenture at such
      times, upon compliance with such conditions and upon the terms set forth in
      the
      Indenture.

     

    The
      initial Conversion Rate shall be 20.3770 Common Shares per $1,000 principal
      amount of Notes, subject to adjustment in certain circumstances as specified
      in
      the Indenture. Notes tendered for conversion by a Holder after the close of
      business on any Regular Record Date for an interest payment and on or prior
      to
      the corresponding Interest Payment Date must be accompanied by payment of an
      amount equal to the interest that such Holder is to receive on such Notes on
      such Interest Payment Date; provided,
      however,
      that no
      such payment shall be required (1) if such Notes have been called for redemption
      on a Redemption Date that is after such Regular Record Date and on or prior
      to
      such Interest Payment Date or (2) with respect to overdue interest, if any
      overdue interest exists at the time of conversion with respect to such
      Notes.

     

    The
      Conversion Rate applicable to each Note a notice of conversion in respect of
      which is received by the Conversion Agent from and including the Effective
      Date
      of a Change in Control resulting from a transaction described in clauses (1)
      or
      (2) of the definition of Change in 

     

    
      
        
        

      

      
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    Control
      up to and including the 30th Business Day following the Effective Date of such
      Change in Control shall be increased by the number of Additional Shares
      specified in the Indenture.

     

    To
      convert this Note, the Holder must (a) complete and manually sign the
      irrevocable conversion notice set forth below (or complete and manually sign
      a
      facsimile of such notice) and deliver such notice to the Conversion Agent at
      the
      office maintained by the Conversion Agent for such purpose, (b) if this Note
      is
      in certificated form, surrender such Note to the Conversion Agent,
      (c) furnish appropriate endorsements and transfer documents if required by
      the Conversion Agent, the Company or the Trustee and (d) pay any transfer
      or similar tax, if required. The date on which the Holder satisfies all such
      requirements shall be deemed to be the date on which this Note shall have been
      surrendered for conversion.

     

    If
      the
      Holder has delivered an Optional Repurchase Notice or a Change in Control
      Purchase Notice requiring the Company to repurchase all or a portion of this
      Note pursuant to paragraph 5 hereof, then this Note (or portion hereof subject
      to such Optional Repurchase Notice or Change in Control Purchase Notice) may
      be
      converted only if the Optional Repurchase Notice or Change in Control Purchase
      Notice is withdrawn in accordance with the terms of the Indenture.

     

    
      	7.  	
              RANKING

            


    

     

    The
      Notes
      are senior unsecured obligations of the Company and shall rank pari passu in
      right of payment with all other senior unsecured senior indebtedness of the
      Company from time to time outstanding.

     

    
      	8.  	
              DEFAULTED
                INTEREST 

            


    

     

    Except
      as
      otherwise specified herein or in the Indenture, any Defaulted Interest on this
      Note shall forthwith cease to be payable to the Holder hereof on the relevant
      Regular Record Date by virtue of having been such Holder, and such Defaulted
      Interest may be paid by the Company as provided for in Section 307 of the
      Indenture. 

     

    
      	9.  	
              DENOMINATIONS;
                TRANSFER; CONVERSION

            


    

     

    This
      Note
      is issuable only in fully registered form, without coupons, in denominations
      of
      $1,000 and integral multiples thereof. This Note may be exchanged for a like
      aggregate principal amount of Notes of other authorized denominations at the
      office or agency of the Company in The City of New York, in the manner and
      subject to the limitations provided herein and in the Indenture, but without
      the
      payment of any charge except for any tax or other governmental charge imposed
      in
      connection therewith. Upon due presentment for registration of transfer of
      this
      Note at the office or agency of the Company in The City of New York, one or
      more
      new Notes of authorized denominations in an equal aggregate principal amount
      will be issued to the transferee in exchange therefor, and bearing such
      restrictive legends as may be required by the Indenture, but without payment
      of
      any charge except for any tax or other governmental charge imposed in connection
      therewith. In the event of any redemption in part, the Company shall not be
      required to: (i) issue or register the transfer or exchange of any Note during
      a
      period beginning at the opening of business 15 days before any selection of
      Notes for redemption and ending at the close of business on the earliest date
      on
      which the relevant notice 

     

    
      
        
        

      

      
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    of
      redemption is deemed to have been given to all Holders of Notes to be so
      redeemed, or (ii) register the transfer or exchange of any Note so selected
      for redemption, in whole or in part, except the unredeemed portion of any Note
      being redeemed in part. 

     

    
      	10.  	
              PERSONS
                DEEMED OWNERS 

            


    

     

    The
      Holder of this Note may be treated as the owner of this Note for all purposes,
      and neither the Company or the Trustee nor any authorized agent of the Company
      or the Trustee shall be affected by any notice to the contrary, except as
      required by law.

     

    
      	11.  	
              ADDITIONAL
                RIGHTS OF HOLDERS

            


    

     

    In
      addition to the rights provided to Holders of Notes under the Indenture, Holders
      shall have all the rights set forth in the Registration Rights Agreement, dated
      as of August 2, 2006, among the Company and the Initial Purchasers named
      therein.

     

    
      	12.  	
              MODIFICATION
                AND AMENDMENT; WAIVER 

            


    

     

    The
      Indenture permits, with certain exceptions as therein provided, the amendment
      thereof and the modification of the rights and obligations of the Company and
      the rights of the Holders of the Securities under the Indenture at any time
      by
      the Company and the Trustee with the consent of the Holders of a majority in
      the
      aggregate principal amount of all Outstanding Securities affected thereby
      (voting together as a single class). The Indenture also provides that certain
      amendments or modifications may not be made without the consent of each Holder
      to be affected thereby. Furthermore, provisions in the Indenture permit the
      Holders of a majority in the aggregate principal amount of the Outstanding
      Securities of any series, in certain instances, to waive, on behalf of all
      of
      the Holders of Securities of such series, certain past defaults under the
      Indenture and their consequences. Any such waiver by the Holder of this Note
      shall be conclusive and binding upon such Holder and upon all future Holders
      of
      this Note and other Notes issued upon the registration of transfer hereof or
      in
      exchange hereof, or in lieu hereof, whether or not notation of such consent
      or
      waiver is made upon this Note.

     

    
      	13.  	
              DEFAULTS
                AND REMEDIES 

            


    

     

    If
      an
      Event of Default occurs and is continuing, the Trustee, or the Holders of not
      less than 25% in aggregate principal amount of the Notes at the time
      Outstanding, may declare the principal amount and any accrued and unpaid
      interest, of all the Notes to be due and payable in the manner and with the
      effect provided in the Indenture. For Events of Default due to bankruptcy,
      insolvency, reorganization or the appointment of a receiver or liquidator,
      acceleration of maturity of the Notes is automatic.

     

    Events
      of
      Default in respect of the Notes are set forth in Section 501 of the Indenture.
      Holders may not enforce the Indenture or the Notes except as provided in the
      Indenture. 

     

    
      	14.  	
              CONSOLIDATION,
                MERGER, AND SALE OF ASSETS 

            


    

     

    In
      the
      event of a consolidation or merger of the Company or a sale, lease or conveyance
      of all or substantially all of the assets of the Company, or if the Notes are
      exchangeable into the 

     

    
      
        
        

      

      
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    common
      stock or other securities of a third party, as described in ARTICLE EIGHT of
      the
      Indenture, the successor entity to the Company shall succeed to and be
      substituted for the Company and may exercise the rights and powers of the
      Company under the Indenture, and thereafter, except in the case of a lease,
      the
      Company shall be relieved of all obligations and covenants under the Indenture
      and the Notes. 

     

    
      	15.  	
              CERTAIN
                COVENANTS NOT TO APPLY

            


    

     

    The
      Notes
      shall not be entitled to the benefits of the covenants set forth in Section
      1004
      and Section 1013 of the Indenture.

     

    
      	16.  	
              TRUSTEE
                AND AGENT DEALINGS WITH THE COMPANY


            


    

     

    The
      Trustee, Paying Agent, Conversion Agent and Securities Registrar under the
      Indenture, each in its individual or any other capacity, may become the owner
      or
      pledgee of Notes and may otherwise deal with and collect obligations owed to
      it
      by the Company or its Affiliates and may otherwise deal with the Company or
      its
      Affiliates with the same rights it would have if it were not Trustee, Paying
      Agent, Conversion Agent or Registrar. 

     

    
      	17.  	
              CALCULATIONS
                IN RESPECT OF THE NOTES 

            


    

     

    Except
      as
      otherwise specifically stated herein or in the Indenture, all calculations
      to be
      made in respect of the Notes shall be the obligation of the Company. All
      calculations made by the Company or its agent as contemplated pursuant to the
      terms hereof and of the Indenture shall be final and binding on the Company
      and
      the Holders absent manifest error. The Company shall provide a schedule of
      calculations to the Trustee, and the Trustee shall be entitled to rely upon
      the
      accuracy of the calculations by the Company without independent verification.
      The Trustee shall forward calculations made by the Company to any Holder of
      Notes upon written request.

     

    
      	18.  	
              GOVERNING
                LAW 

            


    

     

    The
      Indenture and this Note shall be governed by and construed in accordance with
      the laws of the State of New York.

     

    


     


    
      
        
        

      

      
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    ASSIGNMENT

     

    FOR
      VALUE
      RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
      unto_________________________________________________________________________.

     

    PLEASE
      INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

     

    


    
      	 


    

    


    
      
        

      

    

    (Please
      print or Typewrite Name and Address

    Including
      Postal Zip Code of Assignee)

    
      
        

      

    

     

     

    the
      within Note and all rights thereunder, and hereby irrevocably constitutes and
      appoints 

     

      
        

      

    

    to
      transfer said Note on the books of the Company, with full power of substitution
      in the premises.

     

    In
      connection with any transfer of the Note prior to the expiration of the holding
      period applicable to sales thereof under Rule 144(k) under the Securities Act
      (or any successor provision) (other than any transfer pursuant to a registration
      statement that has been declared effective under the Securities Act), the
      undersigned confirms that such Note is being transferred:

     

    
      	 	 o	
              To
                Weingarten Realty Investors or any of its subsidiaries;
                or

            


    

     

    
      	 	 o	
              To
                a “qualified institutional buyer” in compliance with Rule 144A under the
                Securities Act of 1933, as amended;
                or

            


    

     

    
      	 	 o	
              Pursuant
                to and in compliance with Rule 144 under the Securities Act of 1933,
                as
                amended; or

            


    

     

    
      	 	 o	
              Pursuant
                to a registration statement which has been declared effective under
                the
                Securities Act of 1933, as amended, and which continues to be effective
                at
                the time of transfer.

            


    

     

    Unless
      one of the boxes is checked, the Trustee will refuse to register any of the
      Notes evidenced by this certificate in the name of any person other than the
      registered holder thereof.

     

    


    
      
        
        

      

      
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    Dated:__________________________

     

    
      	
              Signature
                Guaranteed

            	 	 
	
              NOTICE:
                Signature must be guaranteed by an eligible Guarantor Institution
                (banks,
                stockbrokers, savings and loan associations and credit unions) with
                membership in an approved signature guarantee medallion program pursuant
                to Securities and Exchange Commission Rule 17Ad-15.

            	 	
              NOTICE:
                The signature to this Assignment must correspond with the name as
                written
                upon the face of the within Note in every particular, without alteration
                or enlargement or any change whatever.

               

            


    

    


     


    
      
        
        

      

      
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    CONVERSION
      NOTICE 

     

    To
      convert this Note as provided in the Indenture, check the box: ‮ڤo

     

    To
      convert only part of this Note, state the principal amount to be converted
      (must
      be $1,000 or an integral multiple of $1,000): $____________.

     

    If,
      in
      the event the Company delivers Net Shares and you want the stock certificate
      made out in another Person’s name, fill in the form below:

     

      
        

      

    

     

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

     

     

      
        

      

    

     

      
        

      

    

     

      
        

      

    

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

     

    
      

        
          	 	 	
                  Your
                    Signature:

                   

                
	
                  Date:

                   

                	 	 	 
	 	 	
                  (Sign
                    exactly as your name appears on the other side of this Note)

                   

                
	 	 	 
	
                  1 Signature
                    guaranteed by:

                   

                	 	 
	
                  By:

                	 	 	 


        

         

        

          
            
              
                

              

            

            1 Signature
              must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers,
              savings and loan associations and credit unions) with membership in
              an approved
              signature guarantee medallion program pursuant to Securities and Exchange
              Commission Rule 17Ad-15. 

             

             

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