Exhibit 4.2E


     

     

     

    
 

    TANGER
      PROPERTIES LIMITED PARTNERSHIP

     

    as
      Issuer

     

    TANGER
      FACTORY OUTLET CENTERS, INC.

     

    as
      Guarantor

     

    and

     

    U.S.
      BANK
      NATIONAL ASSOCIATION

     

    as
      Trustee

     

    FIFTH
      SUPPLEMENTAL INDENTURE

     

    Dated
      as
      of August 16, 2006

     

    3.75%
      Exchangeable Senior Notes Due 2026

     

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    

      
        	 	
                 

                TABLE
                  OF CONTENTS

                 

                 

              	
                 

                 

                Page

                 

              
	
                ARTICLE
                  1

              	
                DEFINITIONS

              	
                1

              
	
                Section
                  1.01

              	
                  
                  Relation to Original Indenture and Fifth Supplemental
                  Indentures

              	
                1

              
	
                Section
                  1.02

              	
                  
                  Definitions

              	
                1

              
	
                ARTICLE
                  2

              	
                ISSUE,
                  DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

              	
                6

              
	
                Section
                  2.01

              	
                  
                  Designation and Amount

              	
                6

              
	
                Section
                  2.02

              	
                  
                  Form of Notes

              	
                6

              
	
                Section
                  2.03

              	
                  
                  Date and Denomination of Notes; Payments of Interest

              	
                7

              
	
                Section
                  2.04

              	
                  
                  Execution, Authentication and Delivery of Notes

              	
                7

              
	
                Section
                  2.05

              	
                  
                  Exchange and Registration of Transfer of Notes; Restrictions on
                  

                  
                  Transfer; Depositary

              	
                 

                8

              
	
                Section
                  2.06

              	
                  
                  Additional Notes; Repurchases

              	
                9

              
	
                Section
                  2.07

              	
                  
                  No Sinking Fund

              	
                9

              
	
                Section
                  2.08

              	
                  
                  Ranking

              	
                9

              
	
                Section
                  2.09

              	
                  
                  Full and Unconditional Guarantee by the Guarantor

              	
                9

              
	
                ARTICLE
                  3

              	
                REDEMPTION

              	
                9

              
	
                Section
                  3.01

              	
                  
                  Right to Redeem

              	
                9

              
	
                Section
                  3.02

              	
                  
                  Selection of Notes to be Redeemed

              	
                9

              
	
                Section
                  3.03

              	
                  
                  Notice of Redemption

              	
                10

              
	
                ARTICLE
                  4

              	
                PARTICULAR
                  COVENANTS OF THE ISSUER

              	
                10

              
	
                Section
                  4.01

              	
                  
                  Payment of Principal and Interest

              	
                10

              
	
                ARTICLE
                  5

              	
                DEFAULTS
                  AND REMEDIES

              	
                11

              
	
                Section
                  5.01

              	
                 
                   Event of Default

              	
                11

              
	
                ARTICLE
                  6

              	
                SUPPLEMENTAL
                  INDENTURES

              	
                11

              
	
                Section
                  6.01

              	
                  
                  Supplemental Indentures Without Consent of Noteholders

              	
                11

              
	
                Section
                  6.02

              	
                  
                  Modification and Amendment with Consent of Noteholders

              	
                12

              
	
                Section
                  6.03

              	
                  
                  Effect of Supplemental Indentures

              	
                12

              
	
                ARTICLE
                  7

              	
                EXCHANGE
                  OF NOTES

              	
                12

              
	
                Section
                  7.01

              	
                  
                  Exchange

              	
                12

              
	
                Section
                  7.02

              	
                  
                  Exchange Procedures

              	
                15

              
	
                Section
                  7.03

              	
                  
                  Adjustment of Exchange Rate

              	
                18

              
	
                Section
                  7.04 

              	
                  
                  Sufficient Shares to be Delivered

              	
                25

              
	
                Section
                  7.05

              	
                  
                  Effect of Reclassification, Consolidation, Merger or Sale

              	
                25

              
	
                Section
                  7.06

              	
                  
                  Certain Covenants

              	
                26

              
	
                Section
                  7.07

              	
                  
                  Responsibility of Trustee

              	
                26

              
	
                Section
                  7.08

              	
                  
                  Notice to Noteholders Prior to Certain Actions

              	
                26

              
	
                Section
                  7.0 

              	
                  
                  Shareholder Rights Plans

              	
                27

              
	
                Section
                  7.10

              	
                  
                  Ownership Limit

              	
                27

              
	
                ARTICLE
                  8

              	
                REPURCHASE
                  OF NOTES AT OPTION OF HOLDERS

              	
                27

              
	
                Section
                  8.01

              	
                  
                  Repurchase of Notes at Option of the Noteholder on Specified
                  Dates

              	
                27

              
	
                Section
                  8.02

              	
                  
                  Repurchase at Option of Noteholders Upon a Fundamental
                  Change

              	
                31

              
	
                ARTICLE
                  9

              	
                MISCELLANEOUS
                  PROVISIONS

              	
                33

              
	
                Section
                  9.01

              	
                  
                  Ratification of Original Indenture

              	
                33

              
	
                Section
                  9.02

              	
                  
                  Provisions Binding on Issuer’s Successors

              	
                34

              
	
                Section
                  9.03

              	
                  
                  Official Acts by Successor Corporation

              	
                34

              
	
                Section
                  9.04

              	
                  
                  Governing Law

              	
                34

              
	
                Section
                  9.05

              	
                  
                  Evidence of Compliance with Conditions Precedent; Certificates
                  and
                  Opinions of Counsel to Truste

              	
                34

              
	
                Section
                  9.06

              	
                  
                  Non-Business Day

              	
                34

              
	
                Section
                  9.07

              	
                  
                  No Security Interest Created

              	
                34

              
	
                Section
                  9.08

              	
                  
                  Benefits of Indenture

              	
                34

              
	
                Section
                  9.09

              	
                  
                  Table of Contents, Headings, Etc. 

              	
                34

              
	
                Section
                  9.10

              	
                   Execution
                  in Counterparts

              	
                35

              
	
                Section
                  9.11

              	
                  
                  Trustee

              	
                35

              
	
                Section
                  9.12

              	
                  
                  Further Instruments and Acts

              	
                35

              
	
                Section
                  9.13

              	
                  
                  Waiver of Jury Trial

              	
                35

              
	
                 Section
                  9.14  

              	
                  
                  Force Majeure

              	
                35

              


      

    


    
      
         

      

      
         

        
          

        

      

      
         

        
        

      

    



    FIFTH
      SUPPLEMENTAL INDENTURE, dated as of August 16, 2006 (the “Fifth
      Supplemental Indenture”),
      by
      and among TANGER PROPERTIES LIMITED PARTNERSHIP, a North Carolina partnership
      (the “Issuer”),
      TANGER FACTORY OUTLET CENTERS INC., a North Carolina corporation (the
“Guarantor”),
      and
      U.S. BANK NATIONAL ASSOCIATION (as successor in interest to State Street Bank
      and Trust Company), a national banking association having a corporate trust
      office at 100 Wall Street, Suite 1600, New York, New York 10005, as successor
      trustee under the Original Indenture (as defined below) (the “Trustee”).

     

    RECITALS

    


    WHEREAS,
      the Issuer executed and delivered the Indenture (the “Original
      Indenture”),
      dated
      as of March 1, 1996, to the Trustee to issue from time to time for its
      lawful purposes debt securities evidencing the Issuer’s senior unsecured
      Indebtedness.

     

    WHEREAS,
      Section 301 of the Original Indenture provides that by means of a
      supplemental indenture the Issuer may create one or more series of its debt
      securities and establish the form, terms and provisions thereof.

     

    WHEREAS,
      the Issuer intends by this Fifth Supplemental Indenture to (i) create a
      series of Issuer’s debt securities, in an initial aggregate principal amount
      equal to $149,500,000, entitled 3.75% Exchangeable Senior Notes due 2026 (the
      “Notes”)
      and
      (ii) establish the form and the terms and provisions of the
      Notes.

     

    WHEREAS,
      the Board of Directors of the Guarantor, the sole owner of Tanger GP Trust
      who
      is the sole general partner of the Issuer, has approved the creation of the
      Notes and the form, terms and provisions thereof.

     

    WHEREAS,
      the consent of Noteholders to the execution and delivery of this Fifth
      Supplemental Indenture is not required, and all other actions required to be
      taken under the Original Indenture with respect to this Fifth Supplemental
      Indenture have been taken.

     

    NOW,
      THEREFORE IT IS AGREED:

     

    


           
      ARTICLE 1  

     

     

    DEFINITIONS

     

    Section
      1.01  Relation
      to Original Indenture and Supplemental Indentures.

     

    (a)  This
      Fifth Supplemental Indenture shall constitute an integral part of the Original
      Indenture.

     

    (b)  Section 402,
      Section 1010, Article 12 and Article 13 of the Original Indenture
      shall not apply to the Notes;

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

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

     

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

     

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

     

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

     

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

     

    “Additional
      Shares”
shall
      have the meaning specified in Section 7.01(g).

     

    “Board
      of Directors”
means
      the board of directors of the Guarantor.

     

    “Board
      of Trustees””
means
      the board of trustees of Tanger GP Trust, the General Partner of the
      Issuer.

     

    “Cash
      Percentage”
shall
      have the meaning specified in Section 7.02(l).

     

    “Cash
      Percentage Notice”
shall
      have the meaning specified in Section 7.02(l).

     

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

     

    “Common
      Shares”
means,
      subject to Section 7.05, the common shares of the Guarantor, par value
      $0.01 per share, at the date of this Fifth Supplemental Indenture or shares
      of
      any class or classes resulting from any reclassification or reclassifications
      thereof and that have no preference in respect of dividends or of amounts
      payable in the event of any voluntary or involuntary liquidation, dissolution
      or
      winding up of the Guarantor and that are not subject to redemption by the
      Guarantor; provided
      that if
      at any time there shall be more than one such resulting class, the shares of
      each such class then so issuable shall be substantially in the proportion which
      the total number of shares of such class resulting from all such
      reclassifications bears to the total number of shares of all such classes
      resulting from all such reclassifications.

     

    “Common
      Units”
means
      the Class A common limited partnership units of the Issuer.

     

    “Daily
      Exchange Value”
means,
      for each of the 20 consecutive Trading Days during the Observation Period,
      0.05
      times the product of (a) the applicable Exchange Rate and (b) the Last
      Reported Sale Price of the Common Shares (or the Reference Property, if
      applicable) on such day.

     

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

     

    (i)  cash
      in
      an amount equal to the lower of $50 and the Daily Exchange Value relating to
      such day); and

     

    (ii)  to
      the
      extent the Daily Exchange Value exceeds $50, a number of Common Shares (which
      may be or include a fraction) equal to the Daily Share Amount for such Trading
      Day, subject to the Issuer’s right to deliver cash in lieu of all or a portion
      of such Common Shares in accordance with Section 7.02(l) and subject to
      7.02(m).

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

    "Daily
      Share Amount"
      shall
      mean, with respect to a Trading Day, an amount equal to the following: (i)
      if
      the Daily Exchange Value for such Trading Day is equal to or less than $50,
      then
      the Daily Share Amount with respect to such Trading Day shall mean an amount
      equal to zero; and (ii) if the Daily Exchange Value for such Trading Day exceeds
      $50, then the Daily Share Amount with respect to such Trading Day shall mean
      a
      fraction (a) whose numerator is the excess of such Daily Exchange Value over
      $50
      and (b) whose denominator is the Last Reported Sale Price per Common Share
      (or
      Reference Property, if applicable) on such Trading Day.

     

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

     

    “Distributed
      Property”
shall
      have the meaning specified in Section 7.03(c).

     

    “Dividend
      Threshold Amount”
shall
      have the meaning specified in Section 7.03(d).

     

    “Effective
      Date”
shall
      have the meaning specified in Section 7.01(g)(ii).

     

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

     

    “Ex-Dividend
      Date”
means,
      (a) with respect to Section 7.01(e), the first date upon which a sale
      of a Common Share does not automatically transfer the right to receive the
      relevant dividend from the seller of the Common Shares to its buyer, and
      (b) in all other cases, with respect to any issuance or distribution on the
      Common Shares or any other equity security, the first date on which the Common
      Shares or such other equity security trade on the applicable exchange or in
      the
      applicable market, regular way, without the right to receive such issuance
      or
      distribution.

     

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

     

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

     

    “Exchange
      Date”
shall
      have the meaning specified in Section 7.02(c).

     

    “Exchange
      Obligation”
shall
      have the meaning specified in Section 7.01(a).

     

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

     

    “Exchange
      Rate”
shall
      have the meaning specified in Section 7.01(a).

     

    “Exchange
      Trigger Price”
shall
      have the meaning specified in Section 7.01(c).

     

    “Fifth
      Supplemental Indenture”
shall
      have the meaning specified in the Recitals.

     

    
      
         

      

      
        3

        
          

        

      

      
         

      

    

    “Fundamental
      Change”
shall
      be deemed to occur upon the consummation of any transaction or event (whether
      by
      means of an exchange offer, liquidation, tender offer, consolidation, merger,
      combination, reclassification, recapitalization or otherwise) in connection
      with
      which more than 50% of the Common Shares are exchanged for, converted into,
      acquired for or constitutes solely the right to receive, consideration which
      is
      not at least 90% common equity (or American Depositary Shares representing
      shares of common equity) that is: (a) listed on, or immediately after the
      consummation of such transaction or event, will be listed on, a United States
      national securities exchange, or (b) approved, or immediately after such
      transaction or event will be approved, for quotation on the Nasdaq Global Market
      or any similar United States system of automated dissemination of quotations
      of
      securities prices.

     

    “Fundamental
      Change Issuer Notice”
shall
      have the meaning specified in Section 8.02(b).

     

    “Fundamental
      Change Repurchase Date”
shall
      have the meaning specified in Section 8.02(a).

     

    “Fundamental
      Change Repurchase Notice”
shall
      have the meaning specified in Section 8.02(a)(i).

     

    “Fundamental
      Change Repurchase Price”
shall
      have the meaning specified in Section 8.02(a).

     

    “Global
      Note”
shall
      have the meaning specified in Section 2.05(b).

     

    “Guarantor”
shall
      have the meaning specified in the Preamble.

     

    “Interest
      Payment Date”
means
      February 15 and August 15 of each year, beginning on February 15,
      2007.

     

    “Issuer”
shall
      have the meaning specified in the Preamble, and subject to the provisions of
      Article 8 of the Original Indenture, shall include its successors and
      assigns.

     

    “Issuer
      Put Right Notice”
shall
      have the meaning specified in Section 8.01(c).

     

    “Issuer
      Put Right Notice Date”
shall
      have the meaning specified in Section 8.01(c).

     

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

     

    
      
         

      

      
        4

        
          

        

      

      
         

      

    

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

     

    “Maturity
      Date”
means
      August 15, 2026, unless the Notes are earlier repurchased, exchanged or
      redeemed.

     

    “Measurement
      Period”
shall
      have the meaning specified in Section 7.01(b).

     

    “Merger
      Event”
shall
      have the meaning specified in Section 7.05.

     

    “Notes”
shall
      have the meaning specified in the Recitals.

     

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

     

    “Notice
      of Exchange”
shall
      have the meaning specified in Section 7.02(c).

     

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

     

    “Original
      Indenture”
shall
      have the meaning specified in the Recitals.

     

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

     

    “Put
      Right Repurchase Date”
shall
      have the meaning assigned to it in Section 8.01(b).

     

    “Put
      Right Repurchase Notice”
shall
      have the meaning assigned to it in Section 8.01(b)(i).

     

    “Put
      Right Repurchase Price”
shall
      have the meaning assigned to it in Section 8.01(b).

     

    “Record
      Date,”
with
      respect to the payment of interest on any Interest Payment Date, shall have
      the
      meaning specified in Section 2.03, and with respect to Section 7.04,
      shall have the meaning specified in Section 7.04(f).

     

    “Redemption
      Price”
shall
      have the meaning specified in Section 3.01(c).

     

    “Reference
      Property”
shall
      have the meaning specified in Section 7.05(b).

     

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

     

    “Spin-Off”
shall
      have the meaning specified in Section 7.03(c).

     

    “Share
      Price”
means
      the price paid per Common Share in connection with a Fundamental Change pursuant
      to which Additional Shares shall be added to the Exchange Rate as set forth
      in
      Section 7.01(e)(ii), which shall be equal to (i) if holders of Common
      Shares receive only cash in such Fundamental Change, the cash amount paid per
      Common Share and (ii) in all other cases, the average of the Last Reported
      Sale Prices of the Common Shares over the five consecutive Trading Day period
      ending on the Trading Day preceding the Effective Date of the Fundamental
      Change.

     

    
      
         

      

      
        5

        
          

        

      

      
         

      

    

    “Third-Party
      Financial Institution”
shall
      have the meaning specified in Section 7.01(b).

     

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

     

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

     

    “Trigger
      Event”
shall
      have the meaning specified in Section 7.03(c).

     

    “Trustee”
shall
      have the meaning specified in the Preamble until a successor trustee shall
      have
      become such pursuant to the applicable provisions of the Original Indenture.
      The
      Trustee shall initially serve as the Security Registrar and Paying Agent for
      the
      Notes.

     

    “Trust
      Indenture Act”
refers
      to the Trust Indenture Act of 1939, as amended, and the rules and regulations
      promulgated thereunder.

     

    ARTICLE
      2  

     

     

    ISSUE,
      DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES

     

    Section
      2.01  Designation
      and Amount.
      The
      Notes shall be designated as the “3.75 Exchangeable Senior Notes Due 2026.” The
      aggregate principal amount of Notes that may be authenticated and delivered
      under this Fifth Supplemental Indenture is initially limited to $149,500,000,
      subject to Section 2.06 and except for Notes authenticated and delivered
      upon registration or transfer of, or in exchange for, or in lieu of other Notes
      pursuant Section 2.05, Section 7.02 and Section 8.02 of this
      Fifth Supplemental Indenture and Sections 303, 304, 305, 306, 906 and 1107
      of the Original Indenture.

     

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

     

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

     

    
      
         

      

      
        6

        
          

        

      

      
         

      

    

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

     

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

     

    Section
      2.03  Date
      and Denomination of Notes; Payments of Interest.
      The
      Notes shall be issuable in registered form without coupons in denominations
      of
      $1,000 principal amount and integral multiples thereof. Each Note shall be
      dated
      the date of its authentication and shall bear interest from the date specified
      on the face of the form of Note attached as Exhibit A hereto. Interest on
      the Notes shall be computed on the basis of a 360-day year comprised of twelve
      30-day months.

     

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

     

    Section
      2.04  Execution,
      Authentication and Delivery of Notes.
      The
      Notes shall be signed in the name and on behalf of the Guarantor and the Issuer
      by the manual or facsimile signature of (i) the Chairman or Vice-Chairman of
      the
      Board of Directors, Chief Executive Officer, President, any Executive or Senior
      Vice Presidents, Managing Director, or any Vice President (whether or not
      designated by a number or numbers or word or words added before or after the
      title “Vice President”) of the Guarantor and (ii) the Chairman or Vice-Chairman
      of the Board of Trustees, Chief Executive Officer, President, any Executive
      or
      Senior Vice Presidents, Managing Director, or any Vice Presidents (whether
      or
      not designated by a number or numbers or word or words added before or after
      the
      title “Vice President”) of Tanger GP Trust, the General Partner of the Issuer,
      on behalf of the Issuer.

     

    
      
         

      

      
        7

        
          

        

      

      
         

      

    

    At
      any
      time and from time to time after the execution and delivery of this Fifth
      Supplemental Indenture, the Issuer may deliver Notes executed by the Issuer
      to
      the Trustee for authentication, together with a Issuer Order for the
      authentication and delivery of such Notes, and the Trustee in accordance with
      such Issuer Order shall authenticate and deliver such Notes, without any further
      action by the Issuer hereunder.

     

    Only
      such
      Notes as shall bear thereon a certificate of authentication substantially in
      the
      form set forth on the form of Note attached as Exhibit A hereto, manually
      executed by the Trustee (or an Authenticating Agent appointed by the Trustee
      as
      provided by Section 611 of the Original Indenture), shall be entitled to
      the benefits of this Fifth Supplemental Indenture or be valid or obligatory
      for
      any purpose. Such certificate by the Trustee (or such an Authenticating Agent)
      upon any Note executed by the Issuer shall be conclusive evidence that the
      Note
      so authenticated has been duly authenticated and delivered hereunder and that
      the Noteholder is entitled to the benefits of this Fifth Supplemental
      Indenture.

     

    In
      case
      any officer of the Issuer who shall have signed any of the Notes shall cease
      to
      be such officer before the Notes so signed shall have been authenticated and
      delivered by the Trustee, or disposed of by the Issuer, such Notes nevertheless
      may be authenticated and delivered or disposed of as though the person who
      signed such Notes had not ceased to be such officer of the Issuer; and any
      Note
      may be signed on behalf of the Issuer by such persons as, at the actual date
      of
      the execution of such Note, shall be the proper officers of the Issuer, although
      at the date of the execution of this Fifth Supplemental Indenture any such
      person was not such an officer.

     

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

     

    (a)  The
      Issuer shall provide for the registration of transfers or exchange of the Notes
      in the Security Register. Upon surrender for registration of transfer of any
      Note to the Security Registrar or any co-registrar, and satisfaction of the
      requirements for such transfer set forth in this Section 2.05, the Issuer
      shall execute, and the Trustee shall authenticate and deliver, in the name
      of
      the designated transferee or transferees, one or more new Notes of any
      authorized denominations and of a like aggregate principal amount and bearing
      such restrictive legends as may be required by this Fifth Supplemental Indenture
      (if any).

     

    Notes
      may
      be exchanged for other Notes of any authorized denominations and of a like
      aggregate principal amount, upon surrender of the Notes to be exchanged at
      any
      such office or agency maintained by the Issuer pursuant to Section 1002 of
      the Original Indenture. Whenever any Notes are so surrendered for exchange,
      the
      Issuer shall execute, and the Trustee shall authenticate and deliver, the Notes
      which the Noteholder making the exchange is entitled to receive, bearing
      registration numbers not contemporaneously outstanding.

     

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

     

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

     

    
      
         

      

      
        8

        
          

        

      

      
         

      

    

    None
      of
      the Issuer, the Trustee, the Security Registrar or any co-registrar shall be
      required to exchange or register a transfer of (a) any Notes surrendered
      for exchange or, if a portion of any Note is surrendered for exchange, such
      portion thereof surrendered for exchange or (b) any Notes, or a portion of
      any Note, surrendered for repurchase (and not withdrawn), in accordance with
      Article 8.

     

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

     

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

     

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

     

    Section
      2.07  No
      Sinking Fund.
      The
      provisions of Article 12 of the Original Indenture shall not be applicable
      to
      the Notes. No sinking fund is provided for the Notes.

     

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

     

    Section
      2.09  Full
      and Unconditional Guarantee by the Guarantor.
      The
      provisions of Article 16 of the Original Indenture shall be applicable to the
      Notes.

     

    ARTICLE
      3

     

     

    REDEMPTION

     

    Section
      3.01  Right
      to Redeem.

     

    (a)  Notwithstanding
      any provision of the Original Indenture, as modified by this Fifth Supplemental
      Indenture, to the contrary, the Issuer may redeem the Notes at any time, in
      whole but not in part, if it determines that such redemption is necessary to
      preserve the status of the Guarantor as a real estate investment trust under
      the
      Code.

     

    (b)  The
      Issuer, at its option, may redeem the Notes from time to time in whole or in
      part on or after August 18, 2011; provided
      that,
      prior to any redemption, the Issuer shall have paid in full the aggregate amount
      of all interest due on Interest Payment Dates occurring before August 18,
      2011.

     

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

     

    
      
         

      

      
        9

        
          

        

      

      
         

      

    

    Section
      3.02  Selection
      of Notes to be Redeemed.

     

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

     

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

     

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

     

    (a)  the
      then-current Exchange Price;

     

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

     

    (c)  that
      Noteholders who wish to exchange Notes must surrender such Notes for exchange
      no
      later than the Close of Business on the second Business Day immediately
      preceding the Redemption Date and must satisfy the other requirements set forth
      herein.

     

    ARTICLE
      4

     

     

    PARTICULAR
      COVENANTS OF THE ISSUER

     

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

     

    
      
         

      

      
        10

        
          

        

      

      
         

      

    

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

     

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

     

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

     

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

     

    ARTICLE
      5

     

     

    DEFAULTS
      AND REMEDIES

     

    Section
      5.01  Events
      of Default.
      The
      provisions of Sections 501(3), (5) and (6) of the Original Indenture shall
      not be applicable to the Notes. As contemplated under Section 501(9) of the
      Original Indenture, the following events, in addition to the events described
      in
      Sections 501(7) and (8) of the Original Indenture, shall be Events of
      Default with respect to the Notes:

     

    (a)  default
      in any payment of interest on any Note when due and payable and such default
      continues for a period of 30 days;

     

    (b)  default
      in the payment of principal of any Note when due and payable at its Maturity
      Date, upon redemption, repurchase, declaration or otherwise;

     

    (c)  failure
      by the Issuer to comply with its obligation to exchange the Notes into cash,
      Common Shares or a combination of cash and Common Shares, as applicable, upon
      exercise of a Noteholder’s exchange right, and such failure continues for a
      period of 10 days;

     

    (d)  failure
      by the Issuer to issue a Fundamental Change Issuer Notice in accordance with
      Section 9.02(b) when due, and such failure continues for a period of five
      days;

     

    (e)  failure
      by the Issuer for 60 days after written notice from the Trustee or the Holders
      of at least 25% in principal amount of the Notes then Outstanding has been
      received to comply with any of its other agreements contained in the Notes
      or
      the Original Indenture or this Fifth Supplemental Indenture;

     

    (f)  default
      under any evidence of recourse Indebtedness of the Issuer or Guarantor, or
      under
      any mortgage, indenture or other instrument of the Issuer or the Guarantor
      (including a default with respect to Notes of any series other than that series)
      under which there may be issued or by which there may be secured any recourse
      Indebtedness of the Issuer or the Guarantor (or by any Subsidiary, the repayment
      of which the Issuer has guaranteed or for which the Issuer is directly
      responsible or liable as obligor or guarantor), whether such Indebtedness now
      exists or shall hereafter be created, which default shall constitute a failure
      to pay an aggregate principal amount exceeding $15,000,000 of such Indebtedness
      when due and payable after the expiration of any applicable grace period with
      respect thereto and shall have result in such Indebtedness in an aggregate
      principal amount exceeding $15,000,000 becoming or being declared due and
      payable prior to the date on which it would otherwise have become due and
      payable, without such Indebtedness having been discharged, or such acceleration
      having been rescinded or annulled, within a period of 10 days after there shall
      have been given, by registered or certified mail, to the Issuer or the
      Guarantor, as the case may be, by the Trustee or to the Issuer or the Guarantor,
      as the case may be, and the Trustee by the Holders of at least 10% in principal
      amount of the outstanding Notes of that series a written notice specifying
      such
      default and requiring the Issuer or the Guarantor, as the case may be, to cause
      such indebtedness to be discharged or cause such acceleration to be rescinded
      or
      annulled and stating that such notice is a “Notice
      of Default”
      hereunder; and

     

    
      
         

      

      
        11

        
          

        

      

      
         

      

    

    (g)  the
      Issuer or the Guarantor shall fail within 60 days to pay, bond or otherwise
      discharge any uninsured judgment or court order for the payment of money in
      excess of $15,000,000, which is not stayed on appeal or is not otherwise being
      appropriately contested in good faith.

     

    ARTICLE
      6  

    


     

    SUPPLEMENTAL
      INDENTURES

     

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

     

    Section
      6.02  Modification
      and Amendment with Consent of Noteholders.
      The
      provisions of Section 902 of the Original Indenture shall be applicable to
      the Notes. With the consent of the Holders of not less than a majority in
      aggregate principal amount of the Notes at the time Outstanding, by Act of
      said
      Holders delivered to the Issuer and the Trustee, the Issuer (including without
      limitation, consents obtained in connection with a purchase of, or tender offer
      or exchange offer for, Notes), when authorized by or pursuant to a Resolution
      of
      the Board of Directors and Board of Trustees, and the Trustee may enter into
      an
      indenture or indentures supplemental to this Fifth Supplemental Indenture,
      for
      the purpose of adding any provisions to or changing in any manner or eliminating
      any of the provisions of this Fifth Supplemental Indenture, or of modifying
      in
      any manner the rights of the Noteholders and any related coupons under this
      Fifth Supplemental Indenture; provided,
      however,
      that no
      such supplemental indenture shall, without the consent of the Holder of each
      Note affected thereby, modify this Fifth Supplemental Indenture in any manner
      specified in Section 902 of the Original Indenture or, in addition thereto,
      either of the following:

     

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

     

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

     

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

     

    
      
         

      

      
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    ARTICLE
      7

     

     

    EXCHANGE
      OF NOTES

     

    Section
      7.01  Exchange.

     

    (a)  Subject
      to the conditions described in clauses (b) through (f) below and to
      Section 7.10, and upon compliance with the provisions of this
      Article 7, a Noteholder shall have the right, at such Noteholder’s option,
      to exchange all or any portion (if the portion to be exchanged is $1,000
      principal amount or an integral multiple thereof) of such Notes at any time
      prior to the Close of Business on the scheduled Trading Day immediately
      preceding August 18, 2011 at a rate (the “Exchange
      Rate”)
      of
      27.6856 Common Shares (subject to adjustment by the Issuer as provided in
      Section 7.03) per $1,000 principal amount Note (the “Exchange
      Obligation”)
      under
      the circumstances and during the periods set forth below. On and after
      August 18, 2011, regardless of the conditions described in clause (b)
      through (f) below, upon compliance with the provisions of this Article 7
      and subject to Section 7.10, a Noteholder shall have the right, at such
      Noteholder’s option, to exchange all or any portion (if the portion to be
      exchanged is $1,000 principal amount or an integral multiple thereof) of such
      Note at any time prior to the Close of Business on the scheduled Trading Day
      immediately preceding the Maturity Date.

     

    (b)  A
      Noteholder shall have the right, at such Noteholder’s option, to exchange its
      Notes prior to August 18, 2011, during the five Business Day period
      immediately after any 10 consecutive Trading Day period (the “Measurement
      Period”)
      in
      which the Trading Price per $1,000 principal amount of Notes for each day of
      such Measurement Period was less than 98% of the product of the Last Reported
      Sale Price of the Common Shares on such date and the Exchange Rate on such
      date,
      all as determined by the Trustee (except the Trading Price). The Trustee shall
      have no obligation to determine the Trading Price of the Notes. The Issuer
      shall
      request that a third-party nationally recognized financial institution
      authorized to do business in the United States of America other than the Trustee
      (the “Third-Party
      Financial Institution”),
      determine the Trading Price of the Notes and provide such determination to
      both
      the Issuer and the Trustee in writing; provided
      that the
      Issuer shall have no obligation to make such request unless a Noteholder or
      group of Noteholders representing at least $1,000,000 aggregate principal amount
      of Notes provides the Issuer with reasonable evidence that the Trading Price
      per
      $1,000 principal amount of the Notes would be less than 98% of the product
      of
      the Last Reported Sale Price at such time and the then-applicable Exchange
      Rate,
      at which time the Issuer shall instruct the Third-Party Financial Institution
      to
      determine the Trading Price of the Notes beginning on the next Trading Day
      and
      on each successive Trading Day until the Trading Price per $1,000 principal
      amount of the Notes is greater than or equal to 98% of the product of the Last
      Reported Sale Price on such date and the then-applicable Exchange Rate. If
      the
      Trading Price condition set forth above has been met, the Issuer shall so notify
      the Noteholders. If at any time after the Trading Price condition set forth
      above has been met, the Trading Price per $1,000 principal amount of Notes
      is
      greater than 98% of the product of the Last Reported Sale Price on such date
      and
      the then-applicable Exchange Rate, the Issuer shall so notify the
      Noteholders.

     

    (c)  A
      Noteholder shall have the right, at such Noteholder’s option, to exchange Notes
      during any calendar quarter after the quarter ended September 30, 2006, and
      only during such calendar quarter, if the Last Reported Sale Price for the
      Common Shares for at least 20 Trading Days during the period of 30 consecutive
      Trading Days ending on the last Trading Day of the previous calendar quarter
      exceeds 130% of the Exchange Price (the “Exchange
      Trigger Price”)
      on
      such last Trading Day, which Exchange Price shall be subject to adjustment
      in
      accordance with this Article 7. The Issuer shall employ a Third-Party
      Financial Institution to determine at the beginning of each calendar quarter
      whether the Notes are exchangeable as a result of the price of Common Shares,
      and such Third-Party Financial Institution shall notify the Issuer and Trustee
      of its determination.

     

    
      
         

      

      
        13

        
          

        

      

      
         

      

    

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

     

            
      (e)     (i)  In
      the event that the Issuer or the Guarantor elects to:

     

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

     

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

     

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

     

    (ii)  If
      the
      Issuer is a party to any transaction or event that constitutes a Fundamental
      Change, a Noteholder may surrender Notes for exchange at any time from and
      after
      the 30th scheduled Trading Day prior to the anticipated Effective Date of such
      transaction or event until the related Fundamental Change Repurchase Date and,
      upon such surrender in connection with a Fundamental Change occurring prior
      to
      August 18, 2011, the Noteholder shall be entitled to the increase in the
      Exchange Rate, if any, specified in Section 7.01(g). The Issuer shall give
      notice to all record Noteholders and the Trustee no later than 30 scheduled
      Trading Days prior to the anticipated Effective Date of such transaction and
      issue a press release of the Fundamental Change no later than 45 scheduled
      Trading Days prior to the anticipated effective date of the Fundamental
      Change.

     

    (iii)  If
      the
      Guarantor is a party to a consolidation, merger, binding share exchange or
      sale
      or conveyance of all or substantially all of its properties and assets, in
      each
      case pursuant to which the Common Shares would be converted into cash,
      securities and/or other property, then the Noteholders shall have the right
      to
      exchange Notes at any time beginning 15 calendar days prior to the date
      announced by the Issuer as the anticipated effective date of the transaction
      and
      until and including the date that is 15 calendar days after the date that is
      the
      effective date of such transaction; provided
      such
      transaction does not otherwise constitute a Fundamental Change to which the
      provisions of Section 7.01(e)(ii) shall apply. The Issuer will notify
      Noteholders at least 20 calendar days prior to the anticipated effective date
      of
      such transaction. If the Board of Directors determines the anticipated effective
      date of the transaction, such determination shall be conclusive and binding
      on
      the Noteholders.

       

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

         

        (g)  (i)  If
          a Noteholder elects to exchange Notes in connection with a Fundamental
          Change
          that occurs prior to August 18, 2011, the Exchange Rate applicable to each
          $1,000 principal amount of Notes so exchanged shall be increased by an
          additional number of Common Shares (the “Additional
          Shares”)
          as
          described below. Settlement of Notes tendered for exchange to which Additional
          Shares shall be added to the Exchange Rate as provided in this subsection
          shall
          be settled pursuant to Section 7.02 below, as applicable. For purposes of
          this Section 7.01(g), an exchange shall be deemed to be “in connection
          with” a Fundamental Change to the extent that the related exchange notice is
          delivered during the time period beginning on the 30th Trading Day prior
          to the
          anticipated Effective Date of such Fundamental Change and ending on the
          related
          Fundamental Change Repurchase Date, inclusive (regardless of whether the
          provisions of clauses (b), (c), (d), (e) or (f) of this Section 7.01
          shall apply to such exchange). Such exchange notice shall indicate that
          the
          Noteholder has elected to exchange Notes in connection with a Fundamental
          Change; provided,
          however,
          that
          the failure to so indicate shall not in any way affect the Exchange Obligation
          or the right of such Noteholder to receive Additional Shares in connection
          with
          such exchange.

         
(ii)  The
        number of Additional Shares by which the Exchange Rate will be increased
        shall
        be determined by reference to the table attached as Schedule A hereto,
        based on the date on which the Fundamental Change occurs or becomes effective
        (the “Effective
        Date”),
        and
        the Share Price; provided,
        that if
        the Share Price is between two Share Price amounts in the table or the Effective
        Date is between two Effective Dates in the table, the number of Additional
        Shares shall be determined by a straight-line interpolation between the number
        of Additional Shares set forth for the next higher and next lower Share Price
        amounts and the two nearest Effective Dates, as applicable, based on a 365-day
        year; provided
        further
        that if
        (1) the Share Price is greater than $60.00 per Common Share (subject to
        adjustment in the same manner as set forth in Section 7.03), no Additional
        Shares will be added to the Exchange Rate, and (2) the Share Price is less
        than $30.61 per share (subject to adjustment in the same manner as set forth
        in
        Section 7.03), no Additional Shares will be added to the Exchange Rate.
        Notwithstanding the foregoing, in no event will the total number of Common
        Shares issuable upon exchange exceed 32.6691 per $1,000 principal amount
        of
        Notes (subject to adjustment in the same manner as set forth in
        Section 7.03).

    

     

    (iii)  The
      Share
      Prices set forth in the first row of the table in Schedule A hereto shall
      be adjusted as of any date on which the Exchange Rate of the Notes is adjusted.
      The adjusted Share Prices shall equal the Share Prices applicable immediately
      prior to such adjustment, multiplied by a fraction, the numerator of which
      is
      the Exchange Rate in effect immediately prior to the adjustment giving rise
      to
      the Share Price adjustment and the denominator of which is the Exchange Rate
      as
      so adjusted. The number of Additional Shares within the table shall be adjusted
      in the same manner as the Exchange Rate as set forth in Section 7.03 (other
      than by operation of an adjustment to the Exchange Rate by adding Additional
      Shares).

     

    
      
         

      

      
        14

        
          

        

      

      
         

      

    

    Section
      7.02  Exchange
      Procedures.

     

    (a)  Subject
      to Section 7.02(b) and Section 7.11, the Issuer will satisfy the
      Exchange Obligation with respect to each $1,000 principal amount of Notes
      validly tendered for exchange in cash, fully paid Common Shares or a combination
      thereof, as applicable, by delivering, on the third Trading Day immediately
      following the last day of the related Observation Period, cash, Common Shares
      or
      a combination thereof, as applicable, equal to the sum of the Daily Settlement
      Amounts for each of the 20 Trading Days during the related Observation Period;
      provided
      that
      (i) the Issuer will deliver cash in lieu of fractional Common Shares as set
      forth pursuant to clause (m) below; (ii) if the Issuer elects to
      settle an exchange of notes only in Common Shares, such settlement will occur
      as
      soon as practicable after the Issuer notifies the Noteholders that it has chosen
      such method of settlement, but in any event within three Business Days of the
      relevant Exchange Date; and (iii) the Issuer will inform exchanging
      Noteholders by notice to the Trustee no later than two Trading Days beginning
      on
      and including the Exchange Date if the Issuer elects to pay cash upon exchange
      of the Notes and will specify in such notice the amount or percentage of Notes
      for which cash will be paid; provided
      that the
      Issuer may provide that the Specified Amount or Specified Percentage for any
      Trading Day will not be in excess of the Daily Exchange Value. The Daily
      Settlement Amounts shall be determined by the Issuer promptly following the
      last
      day of the Observation Period.

     

    (b)  Notwithstanding
      Section 7.02(a), the Issuer shall satisfy the Exchange Obligation with
      respect to each $1,000 principal amount of Notes tendered for exchange to which
      Additional Shares shall be added to the Exchange Rate as set forth in
      Section 7.01(g) pursuant to this clause (b).

     

    (i)  If
      the
      last day of the applicable Observation Period related to Notes surrendered
      for
      exchange is prior to the third Trading Day preceding the Effective Date of
      the
      Fundamental Change, the Issuer will satisfy the related Exchange Obligation
      with
      respect to each $1,000 principal amount of Notes tendered for exchange as
      described in Section 7.02(b)(ii) by delivering the amount of cash, Common
      Shares or a combination thereof, as applicable (based on the Exchange Rate,
      but
      without regard to the number of Additional Shares to be added to the Exchange
      Rate pursuant to Section 7.01(g)) on the third Trading Day immediately
      following the last day of the applicable Observation Period. As soon as
      practicable following the Effective Date of the Fundamental Change, the Issuer
      will deliver the increase in such amount of cash and Reference Property
      deliverable in lieu of Common Shares, if any, as if the Exchange Rate had been
      increased by such number of Additional Shares during the related Observation
      Period (and based upon the related Last Reported Sale Prices during such
      Observation Period). If such increased amount of cash and shares, if any,
      results in an increase to the amount of cash to be paid to Noteholders, the
      Issuer will pay such increase in cash, and if such increased amount results
      in
      an increase to the number of Common Shares, the Issuer will deliver such
      increase by delivering Reference Property based on such increased number of
      shares.

     

    (ii)  If
      the
      last day of the applicable Observation Period related to Notes surrendered
      for
      exchange is on or following the third scheduled Trading Day preceding the
      Effective Date of such Fundamental Change, the Issuer will satisfy the Exchange
      Obligation with respect to each $1,000 principal amount of Notes tendered for
      exchange as described in Section 7.01(e)(i) (based on the Exchange Rate as
      increased by the Additional Shares pursuant to Section 7.01(g) above) on
      the later to occur of (x) the Effective Date of the Fundamental Change and
      (y) the third Trading Day immediately following the last day of the
      applicable Observation Period.

     

    
      
         

      

      
        15

        
          

        

      

      
         

      

    

    (c)  Before
      any holder of a Note shall be entitled to exchange the same as set forth above,
      such holder shall (1) in the case of a Global Note, comply with the
      procedures of the Depositary in effect at that time and, if required, pay funds
      equal to interest payable on the next Interest Payment Date to which such holder
      is not entitled as set forth in Section 7.02(i) and, if required, pay all
      taxes or duties, if any, and (2) in the case of a Note issued in
      certificated form, (a) complete and manually sign and deliver an
      irrevocable written notice to the Exchange Agent in the form on the reverse
      of
      such certificated Note (or a facsimile thereof) (a “Notice
      of Exchange”)
      at the
      office of the Exchange Agent and shall state in writing therein the principal
      amount of Notes to be exchanged and the name or names (with addresses) in which
      such holder wishes the certificate or certificates for any Common Shares, if
      any, to be delivered upon settlement of the Exchange Obligation to be
      registered, (b) surrender such Notes, duly endorsed to the Issuer or in
      blank (and accompanied by appropriate endorsement and transfer documents),
      at
      the office of the Exchange Agent, (c) if required, pay funds equal to
      interest payable on the next Interest Payment Date to which such holder is
      not
      entitled as set forth in Section 7.02(i), and (d) if required, pay all
      taxes or duties, if any. A Note shall be deemed to have been exchanged
      immediately prior to the Close of Business on the Trading Day (the “Exchange
      Date”)
      that
      the Noteholder has complied with the requirements set forth in this
      Section 7.02(c).

     

    No
      Notice
      of Exchange with respect to any Notes may be tendered by a holder thereof if
      such holder has also tendered a Put Right Repurchase Notice or a Fundamental
      Change Repurchase Notice and not validly withdrawn such Put Right Repurchase
      Notice or Fundamental Change Repurchase Notice in accordance with the applicable
      provisions of Section 8.01 or 8.02, as the case may be.

     

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

     

    (d)  Delivery
      of the amounts owing in satisfaction of the Exchange Obligation shall be made
      by
      the Issuer in no event later than the date specified in Section 7.02(a),
      except to the extent specified in Section 7.02(b). The Issuer shall make
      such delivery by paying the cash amount owed to the Exchange Agent or to the
      Holder of the Note surrendered for exchange, or such Holder’s nominee or
      nominees, and by issuing, or causing to be issued, and delivering to the
      Exchange Agent or to such Holder, or such Holder’s nominee or nominees,
      certificates or a book-entry transfer through the Depositary for the number
      of
      full Common Shares to which such Holder shall be entitled as part of such
      Exchange Obligation (together with any cash in lieu of fractional
      shares).

     

    (e)  In
      case
      any Note shall be surrendered to the Trustee for partial exchange (along with,
      if the Issuer or the Trustee so requires, due endorsements from such Holder,
      or
      written instruments of transfer in form satisfactory to the Issuer and the
      Trustee duly executed by the Holder thereof or his attorney-in-fact), the Issuer
      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 containing identical terms and conditions to the
      Outstanding Notes in authorized denominations in an aggregate principal amount
      equal to the unexchanged portion of the surrendered Note.

     

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

     

    
      
         

      

      
        16

        
          

        

      

      
         

      

    

    (g)  Except
      as
      provided in Section 7.03, no adjustment shall be made for dividends on any
      shares issued upon the exchange of any Note as provided in this
      Article.

     

    (h)  Upon
      the
      exchange of an interest in a Global Note, the Trustee shall make a notation
      on
      such Global Note as to the reduction in the principal amount represented
      thereby. The Issuer shall notify the Trustee in writing of any exchange of
      Notes
      effected through any Exchange Agent other than the Trustee.

     

    (i)  Upon
      exchange, a Noteholder will not receive any separate cash payment for accrued
      and unpaid interest, except as set forth below. The Issuer’s settlement of its
      Exchange Obligation as described above shall be deemed to satisfy its obligation
      to pay the principal amount of the Note and accrued and unpaid interest to,
      but
      not including, the Exchange Date. As a result, accrued and unpaid interest
      to,
      but not including, the Exchange Date shall be deemed to be paid in full rather
      than cancelled, extinguished or forfeited. Notwithstanding the preceding
      sentence, if Notes are exchanged after the Close of Business on a Record Date,
      Holders of such Notes as of the Close of Business on the Record Date will
      receive the interest payable on such Notes on the corresponding Interest Payment
      Date notwithstanding the exchange. Notes surrendered for exchange during the
      period from the Close of Business on any regular Record Date to the opening
      of
      business on the corresponding Interest Payment Date must be accompanied by
      payment of an amount equal to the interest payable on the Notes so exchanged;
      provided,
      however,
      that no
      such payment need be made (1) if the Issuer has called the Notes for
      redemption or (2) to the extent of any overdue interest existing at the
      time of exchange with respect to such Note. Except as described above, no
      payment or adjustment will be made for accrued interest on exchanged
      Notes.

     

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

     

    (k)  Notwithstanding
      any other provision of the Notes, no Noteholder shall be entitled to exchange
      such Notes for Common Shares if and to the extent that the Issuer has not
      received such Common Shares from the Guarantor. If the Issuer is unable to
      deliver shares to any Noteholder as described above, the Issuer will at the
      Issuer’s option either pay cash to such Noteholder in lieu of the Common Shares
      otherwise deliverable, or issue to such Noteholder a number of the Issuer’s
      Common Units equal to the shortfall in the number of Common Shares otherwise
      deliverable, with such Common Units having all the rights and privileges
      provided in the Issuer’s declaration of trust as in effect on the date of
      issuance of such Common Units including the right by, and at the Guarantor’
election, to have such units redeemed for cash in an amount equal to the fair
      market value of an equal number of Common Shares or for an equal number of
      Common Shares.

     

    
      
         

      

      
        17

        
          

        

      

      
         

      

    

    (l)  The
      Issuer may elect to pay cash to the Noteholders in lieu of all or a portion
      of
      the Common Shares otherwise issuable pursuant to this Article 7. In such event,
      on any day prior to the first Trading Day of the applicable Observation Period,
      the Issuer shall specify a percentage of the Daily Share Amount that shall
      be
      settled in cash (the "Cash
      Percentage")
      and
      the amount of cash that the Issuer shall pay in respect of each Trading Day
      in
      the applicable Observation Period will equal the product of: (1) the Cash
      Percentage, (2) the Daily Share Amount for such Trading Day and (3) the Last
      Reported Sale Price for Common Shares for such Trading Day (provided that after
      the consummation of a Fundamental Change in which the consideration is comprised
      entirely of cash, the amount used in this clause (3) shall be the cash price
      per
      share received by holders of the Common Shares in such Fundamental Change).
      The
      number of Common Shares that the Issuer shall deliver in respect of each Trading
      Day in the applicable Observation Period will be a percentage of the Daily
      Share
      Amount equal to 100% minus the Cash Percentage. Upon making a determination
      that
      a percentage of the Daily Share Amount will be settled in cash, the Issuer
      shall
      promptly notify Noteholders of such Cash Percentage by notifying the Trustee
      (the "Cash
      Percentage Notice").
      If
      the Issuer does not specify a Cash Percentage by the close of business on the
      Trading Day prior to the scheduled first Trading Day of the applicable
      Observation Period, the Issuer shall settle 100% of the Daily Share Amount
      for
      each Trading Day in the applicable Observation Period with Common Shares;
provided,
      however,
      that
      the Issuer shall pay cash in lieu of fractional shares otherwise issuable upon
      exchange of Notes. The Issuer at its option, may revoke any Cash Percentage
      Notice by notifying the Trustee; provided,
      that
      the Issuer shall revoke such notice by the close of business on the Trading
      Day
      prior to the scheduled first Trading Day of the applicable Observation
      Period.

     

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

     

    Section
      7.03  Adjustment
      of Exchange Rate.
      The
      Exchange Rate shall be adjusted from time to time by the Issuer as
      follows:

     

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

     

    
      	
              ER’  
                

            	
              = 
                ER0 
                x 
                OS’

               

            
	 	      
                    OS0


    

    


    Where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately prior to such event;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately after such event;

               

            
	
              OS0

               

            	
              =

               

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

               

            
	
              OS’

            	
              =

            	
              the
                number of Common Shares outstanding immediately after such
                event.

            


    

    


    Such
      adjustment shall become effective immediately after 9:00 a.m., New York
      City time, on the Business Day following the Record Date fixed for such
      determination. If any dividend or distribution of the type described in this
      Section 7.03(a) is declared but not so paid or made, or the outstanding
      Common Shares are not subdivided or combined, as the case may be, the Exchange
      Rate shall be immediately readjusted, effective as of the date the Board of
      Directors determines not to pay such dividend or distribution, or subdivide
      or
      combine the outstanding Common Shares, as the case may be, to the Exchange
      Rate
      that would then be in effect if such dividend, distribution, subdivision or
      combination had not been declared.

     

    
      
         

      

      
        18

        
          

        

      

      
         

      

    

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

     

    
      	
              ER’

            	
               
                =  ER0 
                x 
                OS0
                +  X

               

            
	 	            
               OS0
              +  Y


    

    


    where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately prior to such event;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately after such event;

               

            
	
              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
                or convertible securities; and

               

            
	
              Y

            	
              =

            	
              the
                number of Common Shares equal to the aggregate price payable to exercise
                such rights, warrants or convertible securities divided by the average
                of
                the Last Reported Sale Prices of Common Shares over the 10 consecutive
                Trading Day period ending on the Business Day immediately preceding
                the
                Record Date (or, if later, the Ex-Dividend Date) for the issuance
                of such
                rights, warrants or convertible
                securities.

            


    

    


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

     

    In
      determining whether any rights, warrants or convertible securities entitle
      the
      holders to subscribe for or purchase Common Shares at less than such Last
      Reported Sale Price, and in determining the aggregate offering price of such
      Common Shares, there shall be taken into account any consideration received
      by
      the Guarantor for such rights, warrants or convertible securities and any amount
      payable on exercise or exchange thereof, the value of such consideration, if
      other than cash, to be determined by the Board of Directors.

     

    (c)  In
      case
      the Guarantor shall, by dividend or otherwise, distribute to all or
      substantially all holders of its Common Shares any class of beneficial interest
      of the Guarantor (other than Common Shares as covered by Section 7.03(a)),
      evidences of its indebtedness or other assets or property of the Guarantor
      (including securities, but excluding dividends, distributions, rights and
      warrants covered by Section 7.03(a), Section 7.03(b) or
      Section 7.03(d) and distributions described below in this
      paragraph (c) with respect to Spin-Offs) (any of such shares of beneficial
      interest, indebtedness, or other asset or property hereinafter in this
      Section 7.03(c) called the “Distributed
      Property”),
      then,
      in each such case the Exchange Rate shall be adjusted based on the following
      formula:

     

    
      
         

      

      
        19

        
          

        

      

      
         

      

    

    
      	
              ER’

            	
               
                =  ER0 
                x 
                SP0

               

            
	 	            
               SP0
              -
              FMV


    

    


    Where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately prior to such
                distribution;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately after such distribution;

               

            
	
              SP0

               

            	
              =

               

            	
              the
                average of the Last Reported Sale Prices of the Common Shares over
                the 10
                consecutive Trading Day period ending on the Business Day immediately
                preceding the Record Date for such distribution (or, if earlier,
                the
                Ex-Dividend Date); and

               

            
	
              FMV

            	
              =

            	
              the
                fair market value (as determined by the Board of Directors) of the
                shares
                of beneficial interest, evidences of indebtedness, assets or property
                distributed with respect to each outstanding Common Share on the
                Record
                Date for such distribution (or, if earlier, the Ex-Dividend
                Date).

            


    

    


    Such
      adjustment shall become effective immediately prior to 9:00 a.m., New York
      City time, on the Business Day following the date fixed for the determination
      of
      shareholders entitled to receive such distribution; provided
      that if
      the then fair market value (as so determined) of the portion of the Distributed
      Property so distributed applicable to one Common Share is equal to or greater
      than SP0
      as set
      forth above, in lieu of the foregoing adjustment, adequate provision shall
      be
      made so that each Noteholder shall have the right to receive, for each $1,000
      principal amount of Notes upon exchange, the amount of Distributed Property
      such
      Noteholder would have received had such Noteholder owned a number of Common
      Shares equal to the Exchange Rate on the Record Date. If such dividend or
      distribution is not so paid or made, the Exchange Rate shall again be adjusted
      to be the Exchange Rate that would then be in effect if such dividend or
      distribution had not been declared. If the Board of Directors determines the
      fair market value of any distribution for purposes of this Section 7.03(c)
      by reference to the actual or when issued trading market for any securities,
      it
      must in doing so consider the prices in such market over the same period used
      in
      determining SP0
      above.

     

    With
      respect to an adjustment pursuant to this Section 7.03(c) where there has
      been a payment of a dividend or other distribution on the Common Shares of
      or
      other beneficial interests in the Guarantor, or on any class or series of stock
      of or similar beneficial interest in or relating to a Subsidiary or other
      business unit thereof (a “Spin-Off”),
      the
      Exchange Rate in effect immediately before 5:00 p.m., New York City time,
      on the Record Date fixed for determination of shareholders entitled to receive
      the distribution will be increased based on the following formula:

     

    
      	
              ER’

            	
                = 
                ER0 
                x 
                FMV0
                +
                 MP0

               

            
	 	                      
                 MP0


    

    


    Where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately prior to such
                distribution;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately after such distribution;

               

            
	
              FMV0

               

            	
              =

               

            	
              the
                average of the Last Reported Sale Prices of the beneficial interests
                distributed to holders of Common Shares applicable to one Common
                Share
                

              over
                the first 10 consecutive Trading Day period after the effective date
                of
                the Spin-Off; and

               

            
	
              MP0

            	
              =

            	
              the
                average of the Last Reported Sale Prices of Common Shares over
                the
                first 10 consecutive Trading Day period after the effective date
                

              of
                the Spin-Off.

            


    

    


    
      
         

      

      
        20

        
          

        

      

      
         

      

    

    Such
      adjustment shall occur on the tenth Trading Day from, and including, the
      effective date of the Spin-Off; provided
      that in
      respect of any exchange within the 10 Trading Days following any Spin-Off,
      references within this paragraph (c) to 10 days shall be deemed replaced
      with such lower number of Trading Days as have elapsed between such Spin-Off
      and
      the Exchange Date in determining the applicable Exchange Rate.

     

    Rights
      or
      warrants distributed by the Guarantor to all holders of Common Shares, entitling
      the holders thereof to subscribe for or purchase shares of the Guarantor’s
      beneficial interests, including Common Shares (either initially or under certain
      circumstances), which rights or warrants, until the occurrence of a specified
      event or events (“Trigger
      Event”):
      (i) are deemed to be transferred with such Common Shares; (ii) are not
      exercisable; and (iii) are also issued in respect of future issuances of
      Common Shares, shall be deemed not to have been distributed for purposes of
      this
      Section 7.03(c) (and no adjustment to the Exchange Rate under this
      Section 7.03(c) will be required) until the occurrence of the earliest
      Trigger Event, whereupon such rights and warrants shall be deemed to have been
      distributed and an appropriate adjustment (if any is required) to the Exchange
      Rate shall be made under this Section 7.03(c). If any such right or
      warrant, including any such existing rights or warrants distributed prior to
      the
      date of this Fifth Supplemental Indenture, are subject to events, upon the
      occurrence of which such rights or warrants become exercisable to purchase
      different securities, evidences of indebtedness or other assets, then the date
      of the occurrence of any and each such event shall be deemed to be the date
      of
      distribution and Record Date with respect to new rights or warrants with such
      rights (and a termination or expiration of the existing rights or warrants
      without exercise by any of the holders thereof). In addition, in the event
      of
      any distribution (or deemed distribution) of rights or warrants, or any Trigger
      Event or other event (of the type described in the preceding sentence) with
      respect thereto that was counted for purposes of calculating a distribution
      amount for which an adjustment to the Exchange Rate under this Section 7.03
      was made, (1) in the case of any such rights or warrants that shall all
      have been redeemed or repurchased without exercise by any holders thereof,
      the
      Exchange Rate shall be readjusted upon such final redemption or repurchase
      to
      give effect to such distribution or Trigger Event, as the case may be, as though
      it were a cash distribution, equal to the per share redemption or repurchase
      price received by a holder or holders of Common Shares with respect to such
      rights or warrants (assuming such holder had retained such rights or warrants),
      made to all holders of Common Shares as of the date of such redemption or
      repurchase, and (2) in the case of such rights or warrants that shall have
      expired or been terminated without exercise by any holders thereof, the Exchange
      Rate shall be readjusted as if such rights and warrants had not been
      issued.

     

    For
      purposes of this Section 7.03(c), Section 7.03(a) and
      Section 7.03(b), any dividend or distribution to which this
      Section 7.03(c) is applicable that also includes Common Shares to which
      Section 7.03(a) applies or rights or warrants to subscribe for or purchase
      Common Shares to which Section 7.03(b) applies (or both), shall be deemed
      instead to be (1) a dividend or distribution of the evidences of
      indebtedness, assets or shares of beneficial interests other than such Common
      Shares or rights or warrants to which Section 7.03(c) applies (and any
      Exchange Rate adjustment required by this Section 7.03(c) with respect to
      such dividend or distribution shall then be made) immediately followed by
      (2) a dividend or distribution of such Common Shares or such rights or
      warrants (and any further Exchange Rate adjustment required by
      Section 7.03(a) and Section 7.03(b) with respect to such dividend or
      distribution shall then be made), except (A) the Record Date of such
      dividend or distribution shall be substituted as “the Record Date” and “the date
      fixed for such determination” within the meaning of Section 7.03(a) and
      Section 7.03(b) and (B) any Common Shares included in such dividend or
      distribution shall not be deemed “outstanding immediately prior to such event”
within the meaning of Section 7.03(a).

     

    
      
         

      

      
        21

        
          

        

      

      
         

      

    

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

     

    
      	
              ER’  
                

            	
              = 
                ER0 
                x 
                SP0 
                -   T


            
	 	  SP0
              -
              C


    

    


    Where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately prior to the Record Date for
                such
                distribution;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect immediately after the Record Date for such
                distribution;

               

            
	
              SP0

               

            	
              =

               

            	
              the
                average of the Last Reported Sale Prices of the Common Shares over
                the
                period of 10 consecutive Trading Days ending the Business Day immediately
                preceding the Record Date (as defined in clause (f) of this Section)
                for such distribution (or, if earlier, the Ex-Dividend date relating
                to
                such distribution); and

               

            
	
              T

               

            	
              =

               

            	
              the
                dividend threshold amount (“Dividend
                Threshold Amount”),
                which amount shall initially be $0.34 per quarter and which shall
                be
                appropriately adjusted from time to time for any share dividends
                on, or
                subdivisions or combinations of, Common Shares; provided,
                that if an Exchange Rate adjustment is required to be made as a result
                of
                a distribution that is not a quarterly dividend either in whole or
                in
                part, the Dividend Threshold Amount shall be deemed to be zero;
                and

               

            
	
              C

            	
              =

            	
              the
                amount in cash per share that the Guarantor distributes to holders
                of
                Common Shares.

            


    

    


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

     

    For
      the
      avoidance of doubt, for purposes of this Section 7.03(d), in the event of
      any reclassification of the Common Shares, as a result of which the Notes become
      exchangeable into more than one class of Common Shares, if an adjustment to
      the
      Exchange Rate is required pursuant to this Section 7.03(d), references in
      this Section to one Common Share or Last Reported Sale Price of one Common
      Share
      shall be deemed to refer to a unit or to the price of a unit consisting of
      the
      number of shares of each class of Common Shares into which the Notes are then
      exchangeable equal to the number of shares of such class issued in respect
      of
      one Common Share in such reclassification. The above provisions of this
      paragraph shall similarly apply to successive reclassifications.

     

    
      
         

      

      
        22

        
          

        

      

      
         

      

    

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

     

    
      	
              ER’  
                

            	
              = 
                ER0  
                x 
                AC
                +  (SP’ x OS’)

               

            
	 	                   SP’
              x OS0


    

    


    Where

     

    
      	
              ER0

               

            	
              =

               

            	
              the
                Exchange Rate in effect on the date such tender or exchange offer
                expires;

               

            
	
              ER’

               

            	
              =

               

            	
              the
                Exchange Rate in effect on the day next succeeding the date such
                tender or
                exchange offer expires;

               

            
	
              AC

               

            	
              =

               

            	
              the
                aggregate value of all cash and any other consideration (as determined
                by
                the Board of Directors) paid or payable for 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;

               

            
	
              OS’

               

            	
              =

               

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

               

            
	
              SP’

            	
              =

            	
              the
                average of the Last Reported Sale Prices of Common Shares over the
                10
                consecutive Trading Day period commencing on the Trading Day next
                succeeding the date such tender or exchange offer
                expires,

            


    

    


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

     

    (f)  For
      purposes of this Section 7.03 the term “Record
      Date”
shall
      mean, with respect to any dividend, distribution or other transaction or event
      in which the holders of Common Shares have the right to receive any cash,
      securities or other property or in which the Common Shares (or other applicable
      security) is exchanged for or exchanged into any combination of cash, securities
      or other property, the date fixed for determination of shareholders entitled
      to
      receive such cash, securities or other property (whether such date is fixed
      by
      the Board of Directors or by statute, contract or otherwise).

     

    
      
         

      

      
        23

        
          

        

      

      
         

      

    

    (g)  In
      addition to those required by clauses (a), (b), (c), (d), and (e) of this
      Section 7.03, and to the extent permitted by applicable law and subject to
      the applicable rules of the New York Stock Exchange, the Issuer from time to
      time may increase the Exchange Rate by any amount for a period of at least
      20 days if the Board of Trustees determines that such increase would be in
      the Issuer’s best interest. In addition, the Issuer may also (but is not
      required to) increase the Exchange Rate to avoid or diminish any income tax
      to
      holders of Common Shares or rights to purchase Common Shares in connection
      with
      any dividend or distribution of shares (or rights to acquire shares) or similar
      event. Whenever the Exchange Rate is increased pursuant to the preceding
      sentence, the Issuer shall mail to the Holder of each Note at his last address
      appearing on the Security Register provided for in Section 2.05 a notice of
      the increase at least five days prior to the date the increased Exchange Rate
      takes effect, and such notice shall state the increased Exchange Rate and the
      period during which it will be in effect.

     

    (h)  All
      calculations and other determinations under this Article 7 shall be made by
      the Issuer and shall be made to the nearest cent or to the nearest 0.00001
      of a
      share, as the case may be. No adjustment shall be made for the Guarantor’s
      issuance of Common Shares or any securities convertible into or exchangeable
      for
      Common Shares, or the right to purchase Common Shares or such convertible or
      exchangeable securities, other than as provided in this Section 7.03. No
      adjustment shall be made to the Exchange Rate unless such adjustment would
      require a change of at least 1% in the Exchange Rate then in effect at such
      time. The Issuer shall carry forward any adjustments that are less than 1%
      of
      the Exchange Rate and make such carried forward adjustments, regardless of
      whether the aggregate adjustment is less than 1% within one year of the first
      such adjustment carried forward, upon a Fundamental Change, upon any call of
      the
      Notes for redemption or upon maturity.

     

    (i)  Whenever
      the Exchange Rate is adjusted as herein provided, the Issuer shall promptly
      file
      with the Trustee and any Exchange Agent other than the Trustee an Officers’
Certificate setting forth the Exchange Rate after such adjustment and setting
      forth a brief statement of the facts requiring such adjustment. The Trustee
      and
      Exchange Agent may conclusively rely on the accuracy of the Exchange Rate
      adjustment provided by the Issuer. Unless and until a Responsible Officer of
      the
      Trustee shall have received such Officers’ Certificate, the Trustee shall not be
      deemed to have knowledge of any adjustment of the Exchange Rate and may assume
      without inquiry that the last Exchange Rate of which it has knowledge is still
      in effect. Promptly after delivery of such certificate, the Issuer shall prepare
      a notice of such adjustment of the Exchange Rate setting forth the adjusted
      Exchange Rate and the date on which each adjustment becomes effective and shall
      mail such notice of such adjustment of the Exchange Rate to the Holder of each
      Note at his last address appearing on the Security Register provided for in
      Section 2.05 of this Fifth Supplemental Indenture, within 30 days of the
      effective date of such adjustment. Failure to deliver such notice shall not
      affect the legality or validity of any such adjustment.

     

    (j)  For
      purposes of this Section 7.03, the number of Common Shares at any time
      outstanding shall not include shares held in the treasury of the Guarantor
      but
      shall include shares issuable in respect of scrip certificates issued in lieu
      of
      fractions of Common Shares.

     

    Section
      7.04  Sufficient
      Shares to be Delivered.
      To the
      extent the Issuer elects to deliver Common Shares, and subject to
      Section 7.02(k), the Issuer shall provide, free from preemptive rights,
      sufficient Common Shares to provide for exchange of the Notes from time to
      time
      as such Notes are presented for exchange.

     

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

     

    
      
         

      

      
        24

        
          

        

      

      
         

      

    

    (a)  the
      Issuer shall execute with the Trustee a supplemental indenture (which shall
      comply with the Trust Indenture Act as in force at the date of execution of
      such
      supplemental indenture if such supplemental indenture is then required to so
      comply) providing for the exchange and settlement of the Notes as set forth
      in
      this Fifth Supplemental Indenture. Such supplemental indenture shall provide
      for
      adjustments which shall be as nearly equivalent as may be practicable to the
      adjustments provided for in this Article and the Trustee may conclusively rely
      on the determination by the Issuer of the equivalency of such
      adjustments.

     

    If,
      in
      the case of any Merger Event, the Reference Property includes shares of stock
      or
      other securities and assets of a corporation other than the successor or
      purchasing corporation, as the case may be, in such reclassification, change,
      consolidation, merger, combination, sale or conveyance, then such supplemental
      indenture shall also be executed by such other corporation and shall contain
      such additional provisions to protect the interests of the Noteholders as the
      Board of Directors shall reasonably consider necessary by reason of the
      foregoing, including to the extent required by the Board of Directors and
      practicable the provisions providing for the repurchase rights set forth in
      Article 8 herein.

     

    In
      the
      event the Issuer shall execute a supplemental indenture pursuant to this
      Section 7.06, the Issuer shall file with the Trustee an Officers’
Certificate briefly stating the kind or amount of cash, securities or property
      or asset that will constitute the Reference Property after any such Merger
      Event, any adjustment to be made with respect thereto, and the Trustee shall
      promptly mail notice thereof to all Noteholders.

     

    (b)  Notwithstanding
      the provisions of Section 7.02(a) and Section 7.02(b), and subject to
      the provisions of Section 7.01, at the effective time of such Merger Event,
      the right to exchange each $1,000 principal amount of Notes will be changed
      to a
      right to exchange such Note by reference to the kind and amount of cash,
      securities or other property or assets that a holder of a number of Common
      Shares equal to the Exchange Rate immediately prior to such transaction would
      have owned or been entitled to receive (the “Reference
      Property”)
      such
      that from and after the effective time of such transaction, a Noteholder will
      be
      entitled thereafter to exchange its Notes into cash (up to the aggregate
      principal amount thereof) and the same type (and in the same proportion) of
      Reference Property, based on the Daily Settlement Amounts of Reference Property
      in an amount equal to the applicable Exchange Rate, as described under
      Section 7.02(a) or Section 7.02(b), as applicable. For purposes of
      determining the constitution of Reference Property, the type and amount of
      consideration that a holder of Common Shares would have been entitled to in
      the
      case of reclassifications, consolidations, mergers, sales or conveyance of
      assets or other transactions that cause the Common Shares to be converted into
      the right to receive more than a single type of consideration (determined based
      in part upon any form of shareholder election) will be deemed to be the weighted
      average of the types and amounts of consideration received by the holders of
      Common Shares that affirmatively make such an election. The Issuer shall not
      become a party to any such transaction unless its terms are consistent with
      the
      preceding. None of the foregoing provisions shall affect the right of a
      Noteholder to exchange its Notes in accordance with the provisions of this
      Article 8 prior to the effective time of such Merger Event.

     

    (c)  The
      Issuer shall cause notice of the execution of such supplemental indenture to
      be
      mailed to each Noteholder, at his address appearing on the Security Register
      provided for in Section 2.06, within 30 days after execution thereof.
      Failure to deliver such notice shall not affect the legality or validity of
      such
      supplemental indenture.

     

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

     

    
      
         

      

      
        25

        
          

        

      

      
         

      

    

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

     

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

     

    Without
      limiting the generality of the foregoing, neither the Trustee nor any Exchange
      Agent shall be under any responsibility to determine the correctness of any
      provisions contained in any supplemental indenture entered into pursuant to
      Section 7.05 relating either to the kind or amount of shares of stock or
      securities or property (including cash) receivable by Noteholders upon the
      exchange of their Notes after any event referred to in such Section 7.05 or
      to any adjustment to be made with respect thereto, but, subject to the
      provisions of Article 6 of the Original Indenture, may accept as conclusive
      evidence of the correctness of any such provisions, and shall be protected
      in
      relying upon, the Officers’ Certificate with respect thereto.

     

    Section
      7.08  Notice
      to Noteholders Prior to Certain Actions.

     

    In
      case:

     

    (a)  the
      Guarantor shall declare a dividend (or any other distribution) on its Common
      Shares that would require an adjustment in the Exchange Rate pursuant to
      Section 7.03; or

     

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

     

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

     

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

     

    the
      Issuer shall cause to be filed with the Trustee and to be mailed to each
      Noteholder at his address appearing on the Security Register as promptly as
      possible but in any event at least 10 days prior to the applicable date
      specified in clause (x) or (y) below, as the case may be, a notice stating
      (x) the date on which a record is to be taken for the purpose of such
      dividend, distribution or rights or warrants, or, if a record is not to be
      taken, the date as of which the holders of Common Shares of record to be
      entitled to such dividend, distribution or rights are to be determined, or
      (y) the date on which such reclassification, consolidation, merger, sale,
      transfer, dissolution, liquidation or winding-up is expected to become effective
      or occur, and the date as of which it is expected that holders of Common Shares
      of record shall be entitled to exchange their Common Shares for securities
      or
      other property deliverable upon such reclassification, consolidation, merger,
      sale, transfer, dissolution, liquidation or winding-up. Failure to give such
      notice, or any defect therein, shall not affect the legality or validity of
      such
      dividend, distribution, reclassification, consolidation, merger, sale, transfer,
      dissolution, liquidation or winding-up.

     

    
      
         

      

      
        26

        
          

        

      

      
         

      

    

    Section
      7.09  Shareholder
      Rights Plans.
      Upon
      exchange of the Notes, the Noteholders shall receive, in addition to any Common
      Shares issuable upon such exchange, the associated rights issued under any
      shareholder rights plan that the Guarantor adopts. If, and only if, the
      Noteholders receive rights under such shareholder rights plans as described
      in
      the preceding sentence upon exchange of their Notes, then no other adjustment
      pursuant to this Article 7 shall be made in connection with such
      shareholder rights plans.

     

    Section
      7.10  Ownership
      Limit.
      Notwithstanding any other provision of this Fifth Supplemental Indenture or
      the
      Notes, no Noteholder shall be entitled to exchange such Notes for Common Shares
      to the extent that receipt of such shares would cause such Noteholder (together
      with such Noteholder’s affiliates) to exceed the applicable ownership limit
      contained in the Amended and Restated Articles of Incorporation of the Guarantor
      as then in effect.

     

    Section
      7.11  Tax
      Effect.
      In
      certain circumstances, a Noteholder may be deemed to have received a
      constructive dividend or a payment of additional interest subject to U.S.
      federal income tax as a result of an Exchange Rate adjustment or the failure
      to
      make an Exchange Rate adjustment. In such event, the Issuer may set-off any
      U.S.
      federal withholding tax that it is required to pay with respect to any such
      constructive distribution or payment against cash payments of interest on the
      Notes.

     

    ARTICLE
      8

    


     

    REPURCHASE
      OF NOTES AT OPTION OF HOLDERS

     

    Section
      8.01  Repurchase
      of Notes at Option of the Noteholder on Specified Dates.

     

    (a)  The
      provisions of Article 13 of the Original Indenture shall not be applicable
      to
      the Notes.

     

    (b)  At
      the
      option of the Holder thereof, Notes shall be repurchased by the Issuer in
      accordance with the provisions of the Notes on August 18, 2011,
      August 15, 2016 or August 15, 2021 (each, a “Put
      Right Repurchase Date”)
      at a
      repurchase price per Note equal to 100% of the aggregate principal amount of
      the
      Notes being repurchased, together with any accrued and unpaid interest up to,
      but not including, such Put Right Repurchase Date (the “Put
      Right Repurchase Price”).

     

    Repurchases
      of Notes by the Issuer pursuant to this Section 8.01 shall be made, at the
      option of the Holder thereof, upon:

     

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

     

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

     

    
      
         

      

      
        27

        
          

        

      

      
         

      

    

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

     

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

     

    (ii)  delivery
      of such Note to the Paying Agent prior to, on or after the Put Right Repurchase
      Date (together with all necessary endorsements) at the offices of the Paying
      Agent, such delivery being a condition to receipt by the Noteholder of the
      Put
      Right Repurchase Price therefor, which shall be so paid pursuant to this
      Section 8.01 only if the Note so delivered to the Paying Agent shall
      conform in all respects to the description thereof in the related Put Right
      Repurchase Notice, as determined by the Issuer.

     

    The
      Issuer shall repurchase from the Holder thereof, pursuant to this
      Section 8.01, a portion of a Note if the principal amount of such portion
      is $1,000 or an integral multiple of $1,000. Provisions of this Fifth
      Supplemental Indenture that apply to the repurchase of all of a Note also apply
      to the repurchase of such portion of such Note.

     

    Any
      repurchase by the Issuer contemplated pursuant to the provisions of this
      Section 8.01 shall be consummated by the delivery of the consideration to
      be received by the Noteholder promptly following the later of the Put Right
      Repurchase Date and the time of delivery of the Note.

     

    The
      Trustee (or other Paying Agent appointed by the Issuer) shall promptly notify
      the Issuer of the receipt by it of any Put Right Repurchase Notice or written
      notice of withdrawal thereof in accordance with the provisions of
      Section 8.01(e).

     

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

     

    (c)  In
      connection with any purchase of Notes pursuant to this Section 8.01, the
      Issuer shall give written notice of the Put Right Repurchase Date to the
      Noteholders (the “Issuer
      Put Right Notice”).

     

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

     

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

     

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

     

    
      
         

      

      
        28

        
          

        

      

      
         

      

    

    (iii)  that
      Notes as to which a Put Right Repurchase Notice has been given may be exchanged
      in accordance with Article 7 only if the applicable Put Right Repurchase
      Notice has been withdrawn in accordance with the terms of this Fifth
      Supplemental Indenture;

     

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

     

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

     

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

     

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

     

    (viii)  the
      procedures for withdrawing a Put Right Repurchase Notice (including pursuant
      to
      the terms of Section 8.01(e));

     

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

     

    (x)  the
      CUSIP
      number of the Notes.

     

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

     

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

     

    (d)  Upon
      receipt by the Trustee (or other Paying Agent appointed by the Issuer) of the
      Put Right Repurchase Notice specified in Section 8.01(b)(i), the Holder of
      the Note in respect of which such Put Right Repurchase Notice was given shall
      (unless such Put Right Repurchase Notice is withdrawn as specified in
      Section 8.01(e)) thereafter be entitled to receive solely the Put Right
      Repurchase Price with respect to such Note. Such Put Right Repurchase Price
      shall be paid to such Holder, subject to receipt of funds by the Paying Agent,
      promptly following the later of (x) the Put Right Repurchase Date with
      respect to such Note (provided the conditions in Section 8.01(b) have been
      satisfied) and (y) the time of delivery of such Note to the Paying Agent by
      the Holder thereof in the manner required by Section 8.01(b)(i). Notes in
      respect of which a Put Right Repurchase Notice has been given by the Holder
      thereof may not be exchanged pursuant to Article 8 on or after the date of
      the delivery of such Put Right Repurchase Notice, unless such Put Right
      Repurchase Notice has first been validly withdrawn as specified in
      Section 8.01(e).

     

    
      
         

      

      
        29

        
          

        

      

      
         

      

    

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

     

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

     

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

     

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

     

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

     

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

     

    Upon
      receipt of a written notice of withdrawal, the Paying Agent shall promptly
      return to the Holders thereof any Notes in respect of which a Put Right
      Repurchase Notice has been withdrawn in accordance with the provisions of this
      Section 8.01(e).

     

    (f)  There
      shall be no repurchase of any Notes pursuant to this Section 8.01 if there
      has occurred (prior to, on or after, as the case may be, the giving, by the
      Holders of such Notes, of the required Put Right Repurchase Notice) and is
      continuing an Event of Default with respect to the Notes (other than a default
      in the payment of the Put Right Repurchase Price with respect to such Notes).
      The Paying Agent will promptly return to the respective Holders thereof any
      Notes held by it during the continuance of an Event of Default with respect
      to
      Notes (other than a default in the payment of the Put Right Repurchase Price
      with respect to such Notes), in which case, upon such return, the Put Right
      Repurchase Notice with respect thereto shall be deemed to have been
      withdrawn.

     

    (g)  Prior
      to
      11:00 a.m. (New York City time) on the Put Right Repurchase Date, the
      Issuer shall deposit with the Trustee (or other Paying Agent appointed by the
      Issuer or if the Issuer is acting as its own Paying Agent, set aside, segregate
      and hold in trust in accordance with the terms of the Original Indenture as
      modified by this Fifth Supplemental Indenture) an amount (in immediately
      available funds if deposited on such Business Day) sufficient to pay the
      aggregate Put Right Repurchase Price of all the Notes or portions thereof which
      are to be purchased as of the Put Right Repurchase Date. The manner in which
      the
      deposit required by this Section 8.01(g) is made by the Issuer shall be at
      the option of the Issuer; provided
      that
      such deposit shall be made in a manner such that the Trustee or a Paying Agent
      shall have immediately available funds on the Put Right Repurchase
      Date.

     

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

     

    To
      the
      extent that the aggregate amount of cash deposited by the Issuer pursuant to
      this Section 8.01(g) exceeds the aggregate Put Right Repurchase Price of
      the Notes or portions thereof that the Issuer is obligated to purchase, then
      promptly after the Put Right Repurchase Date the Trustee or a Paying Agent,
      as
      the case may be, shall return any such excess cash to the Issuer.

     

    
      
         

      

      
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    Section
      8.02  Repurchase
      at Option of Noteholders Upon a Fundamental Change.

     

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

     

    Repurchases
      of Notes under this Section 8.02 shall be made, at the option of the Holder
      thereof, upon:

     

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

     

    (ii)  delivery
      or book-entry transfer of the Notes to the Trustee (or other Paying Agent
      appointed by the Issuer) at any time after delivery of the Fundamental Change
      Repurchase Notice (together with all necessary endorsements) at the Corporate
      Trust Office of the Trustee (or other Paying Agent appointed by the Issuer),
      such delivery being a condition to receipt by the Noteholder of the Fundamental
      Change Repurchase Price therefor; provided
      that
      such Fundamental Change Repurchase Price shall be so paid pursuant to this
      Section 8.02 only if the Note so delivered to the Trustee (or other Paying
      Agent appointed by the Issuer) shall conform in all respects to the description
      thereof in the related Fundamental Change Repurchase Notice. The Fundamental
      Change Repurchase Notice shall state:

     

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

     

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

     

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

     

    Any
      repurchase by the Issuer contemplated pursuant to the provisions of this
      Section 8.02 shall be consummated by the delivery of the consideration to
      be received by the Noteholder promptly following the later of the Fundamental
      Change Repurchase Date and the time of the book-entry transfer or delivery
      of
      the Note.

     

    The
      Trustee (or other Paying Agent appointed by the Issuer) shall promptly notify
      the Issuer of the receipt by it of any Fundamental Change Repurchase Notice
      or
      written notice of withdrawal thereof in accordance with the provisions of
      Section 8.02(c).

     

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

     

    
      
         

      

      
        31

        
          

        

      

      
         

      

    

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

     

    Each
      Fundamental Change Issuer Notice shall specify:

     

    (i)  the
      events causing the Fundamental Change;

     

    (ii)  the
      date
      of the Fundamental Change;

     

    (iii)  that
      the
      Noteholder must exercise the repurchase right on or prior to the Close of
      Business on the Fundamental Change Repurchase Date;

     

    (iv)  the
      Fundamental Change Repurchase Price;

     

    (v)  the
      Fundamental Change Repurchase Date;

     

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

     

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

     

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

     

    (ix)  the
      procedures that Noteholders must follow to require the Issuer to repurchase
      their Notes.

     

    No
      failure of the Issuer to give the foregoing notices and no defect therein shall
      limit the Noteholders’ repurchase rights or affect the validity of the
      proceedings for the repurchase of the Notes pursuant to this
      Section 8.02.

     

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

     

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

     

    
      
         

      

      
        32

        
          

        

      

      
         

      

    

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

     

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

     

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

     

    (d)  On
      or
      prior to 11:00 a.m. (New York City time) on the second Business Day
      following the Fundamental Change Repurchase Date, the Issuer will deposit with
      the Trustee (or other Paying Agent appointed by the Issuer or if the Issuer
      is
      acting as its own Paying Agent, set aside, segregate and hold in trust in
      accordance with the Original Indenture) an amount of money sufficient to
      repurchase on the Fundamental Change Repurchase Date all of the Notes to be
      repurchased on such date at the Fundamental Change Repurchase Price. Subject
      to
      receipt of funds and/or Notes by the Trustee (or other Paying Agent appointed
      by
      the Issuer), payment for Notes surrendered for repurchase (and not withdrawn)
      prior to the Close of Business on the Fundamental Change Repurchase Date will
      be
      made promptly after the later of (x) the Fundamental Change Repurchase Date
      with respect to such Note (provided the Noteholder has satisfied the conditions
      to the payment of the Fundamental Change Repurchase Price in Section 8.02),
      and (y) the time of book-entry transfer or the delivery of such Note to the
      Trustee (or other Paying Agent appointed by the Issuer) by the Holder thereof
      in
      the manner required by Section 8.02 by mailing checks for the amount
      payable to the Holders of such Notes entitled thereto as they shall appear
      in
      the Security Register, provided,
      however,
      that
      payments to the Depositary shall be made by wire transfer of immediately
      available funds to the account of the Depositary or its nominee. The Trustee
      shall, promptly after such payment and upon written demand by the Issuer, return
      to the Issuer any funds in excess of the Fundamental Change Repurchase
      Price.

     

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

     

    ARTICLE
      9

     

     

    MISCELLANEOUS
      PROVISIONS

     

    Section
      9.01  Ratification
      of Original Indenture.
      Except
      as expressly modified or amended hereby, the Original Indenture, as modified
      by
      any supplemental indenture entered into prior to the date hereof (which are
      not
      applicable to the Notes), continues in full force and effect and is in all
      respects confirmed, ratified and preserved.

     

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

     

    
      
         

      

      
        33

        
          

        

      

      
         

      

    

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

     

    Section
      9.04  Governing
      Law.
      THIS
      FIFTH SUPPLEMENTAL INDENTURE AND EACH NOTE ISSUED PURSUANT HERETO SHALL BE
      DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR
      ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
      NEW
      YORK.

     

    Section
      9.05  Evidence
      of Compliance with Conditions Precedent; Certificates and Opinions of Counsel
      to
      Trustee.
      Upon
      any application or demand by the Issuer to the Trustee to take any action under
      any of the provisions of the Original Indenture or this Fifth Supplemental
      Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
      stating that all conditions precedent, if any, provided for in the Original
      Indenture or this Fifth Supplemental Indenture relating to the proposed action
      have been complied with, and an Opinion of Counsel stating that, in the opinion
      of such counsel, all such conditions precedent have been complied
      with.

     

    Each
      certificate or opinion provided for by or on behalf of the Issuer in the
      Original Indenture or this Fifth Supplemental Indenture and delivered to the
      Trustee with respect to compliance with a condition or covenant provided for
      in
      the Original Indenture or this Fifth Supplemental Indenture shall include
      (i) a statement that the person making such certificate or opinion has read
      such covenant or condition; (ii) a brief statement as to the nature and
      scope of the examination or investigation upon which the statement or opinion
      contained in such certificate or opinion is based; (iii) a statement that,
      in the opinion of such person, he has made such examination or investigation
      as
      is necessary to enable him to express an informed opinion as to whether or
      not
      such covenant or condition has been complied with; and (iv) a statement as
      to whether or not, in the opinion of such person, such condition or covenant
      has
      been complied with.

     

    Section
      9.06  Non-Business
      Day.
      Section 114 of the Original Indenture shall also apply to any Fundamental
      Change Repurchase Date, Put Right Repurchase Date or Exchange Date in respect
      of
      the Notes.

     

    Section
      9.07  No
      Security Interest Created.
      Nothing
      in the Original Indenture or this Fifth Supplemental Indenture or in the Notes,
      expressed or implied, shall be construed to constitute a security interest
      under
      the Uniform Commercial Code or similar legislation, as now or hereafter enacted
      and in effect, in any jurisdiction.

     

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

     

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

     

    
      
         

      

      
        34

        
          

        

      

      
         

      

    

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

     

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

     

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

     

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

     

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

     

    



    
      
        
           

        

         

      

      
        35

        
          

        

      

      
         

        
        

      

    



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

     

    Very
      truly yours,

    TANGER
      FACTORY OUTLET CENTERS, INC.

    By:
      

     

    Name:

     

    Title:

     

    TANGER
      PROPERTIES LIMITED PARTNERSHIP

    By:
      Tanger GP Trust, its general partner

    


    By:
             

    Name

    Title:

    [SEAL]

     

    Attest:

     

    By: _____________________

     

    Name:
      _______________

     

    Title:
      ________________

     

    U.S.
      BANK
      NATIONAL ASSOCIATION,

     

    as
      Trustee, as aforesaid

     

    By: __________________

     

    __________________

     

    Attest:

     

    By: _____________________

     

    Name: __________________

     

    Title: __________________

     

    



    
      
         

      

      
         

        
          

        

      

      
         

      

    


    SCHEDULE
      A

     

    

      
        	
                Effective

              	
                Effective
                  Price

              
	
                Date

              	
                $30.61

              	
                $32.50

              	
                $35.00

              	
                $37.50

              	
                $40.00

              	
                $42.50

              	
                $45.00

              	
                $47.50

              	
                $50.00

              	
                $52.50

              	
                $55.00

              	
                $60.00

              
	
                August
                  16, 2006

              	
                4.9834

              	
                4.0575

              	
                2.9845

              	
                2.1859

              	
                1.5948

              	
                1.1554

              	
                0.8298

              	
                0.5915

              	
                0.4153

              	
                0.2852

              	
                0.1901

              	
                0.0705

              
	
                August
                  15, 2007

              	
                4.9834

              	
                4.0706

              	
                2.9440

              	
                2.1120

              	
                1.5007

              	
                1.0571

              	
                0.7330

              	
                0.5002

              	
                0.3333

              	
                0.2138

              	
                0.1289

              	
                0.0302

              
	
                August
                  15, 2008

              	
                4.9834

              	
                4.0258

              	
                2.8366

              	
                1.9711

              	
                1.3485

              	
                0.9047

              	
                0.5915

              	
                0.3750

              	
                0.2248

              	
                0.1236

              	
                0.0570

              	
                0.0000

              
	
                August
                  15, 2009

              	
                4.9834

              	
                3.8854

              	
                2.6174

              	
                1.7198

              	
                1.0951

              	
                0.6710

              	
                0.3895

              	
                0.2071

              	
                0.0925

              	
                0.0272

              	
                0.0000

              	
                0.0000

              
	
                August
                  15, 2010

              	
                4.9834

              	
                3.5564

              	
                2.1626

              	
                1.2293

              	
                0.6392

              	
                0.0979

              	
                0.0979

              	
                0.0115

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              
	
                August
                  18, 2011

              	
                4.9834

              	
                3.0836

              	
                0.8858

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000

              	
                0.0000