EX-4.1



 





Exhibit 4.1




 

 






HEALTH CARE REIT, INC.




and




THE BANK OF NEW YORK TRUST COMPANY, N.A.




as Trustee




 






SUPPLEMENTAL INDENTURE NO. 2




Dated as of July 20, 2007




 






$400,000,000 Principal Amount




4.75% Convertible Senior Notes due 2027




 

 






 









 












TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	I.	 	DEFINITIONS AND INCORPORATION BY REFERENCE	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	1.01	 	Definitions	 	 	1	 
	 
	 	1.02	 	Other Definitions	 	 	4	 
	 
	 	1.03	 	Incorporation by Reference of the Trust Indenture Act	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	II.	 	THE SECURITIES	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	2.01	 	Form and Dating	 	 	6	 
	 
	 	2.02	 	Execution and Authentication	 	 	6	 
	 
	 	2.03	 	Registrar, Paying Agent and Conversion Agent	 	 	7	 
	 
	 	2.04	 	Additional Securities	 	 	7	 
	 
	 	2.05	 	Book-Entry Provisions for And Restrictions on Transfer and Exchange of Global Securities	 	 	7	 
	 
	 	2.06	 	Ranking	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	III.	 	REDEMPTION AND REPURCHASE	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	 
	 	3.01	 	Redemption and Repurchase	 	 	9	 
	 
	 	3.02	 	Notices to Trustee	 	 	9	 
	 
	 	3.03	 	Selection of Securities to Be Redeemed	 	 	10	 
	 
	 	3.04	 	Notice of Redemption	 	 	10	 
	 
	 	3.05	 	Effect of Notice of Redemption	 	 	11	 
	 
	 	3.06	 	Deposit of Redemption Price	 	 	12	 
	 
	 	3.07	 	Securities Redeemed in Part	 	 	12	 
	 
	 	3.08	 	Purchase of Securities at Option of the Holder	 	 	12	 
	 
	 	3.09	 	Repurchase at Option of Holder Upon a Fundamental Change	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	IV.	 	ADDITIONAL COVENANTS	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	 
	 	4.01	 	SEC Reports	 	 	23	 
	 
	 	4.02	 	Corporate Existence	 	 	23	 
	 
	 	4.03	 	Further Instruments and Acts	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	V.	 	DEFAULTS AND REMEDIES	 	 	24	 
	 
	 	 	 	 	 	 	 	 
	 
	 	5.01	 	Events of Default	 	 	24	 
	 
	 	5.02	 	Acceleration	 	 	26	 
	 
	 	5.03	 	Waiver of Past Defaults	 	 	26	 
	 
	 	5.04	 	Limitation on Suits	 	 	27	 
	 
	 	5.05	 	Rights of Holders to Convert Securities	 	 	27	 
	 
	 	5.06	 	Notice of Defaults	 	 	27	 






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	 	 	 	 	 	 	Page	 
	VI.	 	DISCHARGE OF INDENTURE	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	6.01	 	Termination of the Obligations of the Company	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	VII.	 	SUPPLEMENTAL INDENTURES	 	 	28	 
	 
	 	 	 	 	 	 	 	 
	 
	 	7.01	 	Supplemental Indentures Without Consent of Holders	 	 	28	 
	 
	 	7.02	 	Supplemental Indentures With Consent of Holders	 	 	29	 
	 
	 	7.03	 	Revocation and Effect of Consents	 	 	30	 
	 
	 	7.04	 	Notation on or Exchange of Securities	 	 	30	 
	 
	 	7.05	 	Trustee Protected	 	 	30	 
	 
	 	 	 	 	 	 	 	 
	VIII.	 	CONVERSION	 	 	31	 
	 
	 	 	 	 	 	 	 	 
	 
	 	8.01	 	Conversion Privilege; Restrictive Legends	 	 	31	 
	 
	 	8.02	 	Conversion Procedure and Payment Upon Conversion	 	 	34	 
	 
	 	8.03	 	Fractional Shares	 	 	36	 
	 
	 	8.04	 	Taxes on Conversion	 	 	37	 
	 
	 	8.05	 	Company to Provide Stock	 	 	37	 
	 
	 	8.06	 	Adjustment of Conversion Rate	 	 	37	 
	 
	 	8.07	 	No Adjustment	 	 	44	 
	 
	 	8.08	 	Other Adjustments	 	 	45	 
	 
	 	8.09	 	Adjustments for Tax Purposes	 	 	45	 
	 
	 	8.10	 	Notice of Adjustment	 	 	45	 
	 
	 	8.11	 	Notice of Certain Transactions	 	 	46	 
	 
	 	8.12	 	Effect of Reclassifications, Consolidations, Amalgamations, Statutory Arrangements, Mergers,
Binding Share Exchanges or Asset Sales on Conversion
Privilege	 	 	46	 
	 
	 	8.13	 	Trustee’s Disclaimer	 	 	48	 
	 
	 	8.14	 	Rights Distributions Pursuant to Stockholders’
Rights Plans	 	 	48	 
	 
	 	8.15	 	Increased Conversion Rate Applicable to Certain Notes
Surrendered in Connection With Make-Whole Fundamental Changes	 	 	49	 
	 
	 	8.16	 	Ownership Limit	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	IX.	 	NO DEFEASANCE OR COVENANT DEFEASANCE	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	X.	 	MISCELLANEOUS	 	 	52	 
	 
	 	 	 	 	 	 	 	 
	 
	 	10.01	 	Governing Law	 	 	52	 
	 
	 	10.02	 	No Adverse Interpretation of Other Agreements	 	 	52	 
	 
	 	10.03	 	Successors	 	 	52	 
	 
	 	10.04	 	Calculations in Respect of the Securities	 	 	52	 
	 
	 	10.05	 	Trustee’s Disclaimer	 	 	53	 






	 	 	 	 	 
	Exhibit A

	 	—
	 	Form of Global Security






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	Exhibit B

	 	—
	 	Form of Legend for Global Security







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     This SUPPLEMENTAL INDENTURE NO. 2 (the “Supplemental Indenture”) is made and entered into
as of July 20, 2007, between HEALTH CARE REIT, INC., a Delaware corporation (the “Company”), and
THE BANK OF NEW YORK TRUST COMPANY, N.A., a national banking association, as trustee (the
“Trustee”).



WITNESSETH THAT:




          WHEREAS, the Company and the Trustee have executed and delivered a base indenture, dated as of
November 20, 2006 (as amended, supplemented or otherwise modified from time to time, the “Base
Indenture” and, together with this Supplemental Indenture, as amended, supplemented or otherwise
modified from time to time, the “Indenture”) to provide for the future issuance of the Company’s
senior debt securities to be issued from time to time in one or more series; and




          WHEREAS, pursuant to the terms of the Base Indenture, the Company desires to provide for the
establishment of a series of its Securities, to be known as its 4.75% Convertible Senior Notes due
2027 (the “Securities”), the form and substance of such Securities and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture;




          NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:




I. DEFINITIONS AND INCORPORATION BY REFERENCE



1.01 Definitions. The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Base Indenture:




     “Agent” means any Registrar, Paying Agent, Conversion Agent, Bid Solicitation Agent or
co-Registrar or co-agent.



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



     “Bid Solicitation Agent” means a Company-appointed agent that performs calculations as set
forth in Section 8.01 hereof.



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



     “Closing Sale Price” on any date means the price of a share of Common Stock on such date,
determined (i) on the basis of the closing per share sale price (or if no closing per share sale
price is reported, the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date on the U.S. principal
national or regional securities exchange on which the Common Stock is listed; or (ii) if the Common



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Stock is not listed on a U.S. national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System; or (c) if not so reported, as
reported by Pink Sheets LLC or a similar organization. In the absence of a quotation, the Closing
Sale Price shall be the average of the mid-point of the last bid and ask prices for the Common
Stock on the relevant date from each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.



     “Common Stock” means the common stock, $1.00 par value per share, of the Company, or such
other Capital Stock of the Company into which the Company’s common stock is reclassified or
changed.



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



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



     “Conversion Rate” means the number of shares of Common Stock issuable upon conversion of a
Security per $1,000 principal amount, which Conversion Rate shall initially be 20.0000 shares of
Common Stock per $1,000 principal amount of Securities, subject to adjustment as provided in
Article VIII hereof.



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



     “Holder” or “Securityholder” means a person in whose name a Security is registered on the
Registrar’s books.



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


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third party to purchase such leased property or pay an agreed-upon residual value of the leased
property to the lessor, (g) guarantees by such person of indebtedness described in clauses (a)
through (f) of another person, and (h) all renewals, extensions, refundings, deferrals,
restructurings, amendments and modifications of any indebtedness, obligation, guarantee or
liability of the kind described in clauses (a) through (g).



     “Issue Date” means July 20, 2007.



     “Make-Whole Fundamental Change” means an Asset Sale Make-Whole Fundamental Change or a Common
Stock Change Make-Whole Fundamental Change that occurs prior to July 15, 2012.



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



     “Maturity Date” means July 15, 2027.



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



     “Option” means the Underwriters’ option to acquire up to $60,000,000 aggregate principal
amount of additional Securities (“Additional Securities”) as provided for in the Underwriting
Agreement.



     “Prospectus” means the final prospectus supplement and the related prospectus of the Company,
dated July 16, 2007, relating to the Securities.



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


     “Redemption Price” means, with respect to a Security to be redeemed by the Company in accordance with Article III, one hundred percent (100%) of the outstanding principal amount of such Security to be redeemed.



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



     “Securities” means the 4.75% Convertible Senior Notes due 2027 issued by the Company pursuant
to this Indenture.



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     “Trading Day” means any day during which: (i) trading in the Common Stock generally occurs on
the primary United States national securities exchange or market on which the Common Stock is
listed or admitted to trading; and (ii) there is no Market Disruption Event.



     “Trading Price” means, on any day, the average of the secondary market bid quotations for the
Securities obtained by the Bid Solicitation Agent for five million dollars ($5,000,000) principal
amount of Securities at approximately 4:00 p.m., New York City time, on such day, from three (3)
independent, nationally recognized securities dealers selected by the Company; provided, that if
the Bid Solicitation Agent can reasonably obtain only two (2) such bids, then the average of such
two (2) bids shall instead be used; provided further, that if the Bid Solicitation Agent can
reasonably obtain only one (1) such bid, then such bid shall instead be used; provided further,
that if, on a given date, the Bid Solicitation Agent cannot reasonably obtain at least one (1) such
bid, or if, in the reasonable, good faith judgment of the Company, the bid quotation or quotations
that the Bid Solicitation Agent has obtained are not indicative of the secondary market value of
the Securities, then, in each case, the Trading Price per $1,000 principal amount of Securities on
such day shall be deemed to be equal to 97% of the product of (I) the Conversion Rate in effect on
such day and (II) the Closing Sale Price on such day.



     “Underwriters” means UBS Securities LLC and Banc of America Securities LLC.



     “Underwriting Agreement” means the Underwriting Agreement dated July 16, 2007 among the
Company and the Underwriters.



     “Voting Stock” of any Person means the total outstanding voting power of all classes of the
Capital Stock of such Person entitled to vote generally in the election of directors of such
Person.



1.02 Other Definitions.




	 	 	 	 	 
	Term	 	Defined in Section	 
	 
	 	 	 	 
	“Additional Securities”
	 	 	1.01	 
	“Aggregate Amount”
	 	 	8.06	 
	“Applicable Price”
	 	 	8.15	 
	“Bankruptcy Law”
	 	 	5.01	 
	“BCF Make-Whole Cap”
	 	 	8.15	 
	“Cash Settlement Averaging Period”
	 	 	8.02	 
	“Change in Control”
	 	 	3.09	 
	“Collective Election”
	 	 	8.12	 
	“Conversion Agent”
	 	 	2.03	 
	“Conversion Date”
	 	 	8.02	 
	“Conversion Value”
	 	 	8.01	 
	“Custodian”
	 	 	5.01	 
	“Daily Conversion Value”
	 	 	8.02	 
	“Daily Net Shares”
	 	 	8.02	 
	“Daily Principal Return”
	 	 	8.02	 
	“Effective Date”
	 	 	8.15	 






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	Term	 	Defined in Section	 
	 
	“Event of Default”
	 	 	5.01	 
	“Ex Date”
	 	 	8.06	 
	“Expiration Date”
	 	 	8.06	 
	“Expiration Time”
	 	 	8.06	 
	“Fundamental Change”
	 	 	3.09	 
	“Fundamental Change Notice”
	 	 	3.09	 
	“Fundamental Change Repurchase Date”
	 	 	3.09	 
	“Fundamental Change Repurchase Price”
	 	 	3.09	 
	“Fundamental Change Repurchase Right”
	 	 	3.09	 
	“Global Security”
	 	 	2.01	 
	“Listed Stock Business Combination”
	 	 	3.09	 
	“Make-Whole Applicable Increase”
	 	 	8.15	 
	“Make-Whole Conversion Period”
	 	 	8.15	 
	“Make-Whole Consideration”
	 	 	8.15	 
	“Net Shares”
	 	 	8.02	 
	“Notice of Default”
	 	 	5.01	 
	“Note Measurement Period”
	 	 	8.01	 
	“Option Purchase Date”
	 	 	3.08	 
	“Option Purchase Notice”
	 	 	3.08	 
	“Option Purchase Price”
	 	 	3.08	 
	“Paying Agent”
	 	 	2.03	 
	“Physical Securities”
	 	 	2.01	 
	“Principal Return”
	 	 	8.02	 
	“Purchase at Holder’s Option”
	 	 	3.01	 
	“Purchased Shares”
	 	 	8.06	 
	“record date”
	 	 	8.06	 
	“Redemption”
	 	 	3.01	 
	“Reference Property”
	 	 	8.12	 
	“Registrar”
	 	 	2.03	 
	“Relevant Date”
	 	 	8.02	 
	“Repurchase Upon Fundamental Change”
	 	 	3.09	 
	“Spin-Off”
	 	 	8.06	 
	“Termination of Trading”
	 	 	3.09	 
	“Trading Price Condition”
	 	 	8.01	 
	“Trigger Event”
	 	 	8.06	 
	“Underlying Shares”
	 	 	8.06	 
	“Volume-Weighted Average Price”
	 	 	8.02	 






1.03 Incorporation by Reference of the Trust Indenture Act.




     Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.



     The following Trust Indenture Act terms used in this Indenture have the following meanings:



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	 	“indenture securities” means the Securities;

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

“indenture to be qualified” means this Indenture;

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

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






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



II. THE SECURITIES




2.01 Form and Dating.




     The Securities and the Trustee’s certificate of authentication shall be substantially in the
form set forth in Exhibit A, which is incorporated in and forms a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication.



     Securities shall be issued initially in the form of one or more Global Securities,
substantially in the form set forth in Exhibit A (the “Global Security”), deposited with the
Trustee, as custodian for DTC, registered in the name of DTC or a nominee thereof, duly executed by
the Company and authenticated by the Trustee as hereinafter provided and bearing the legend set
forth in Exhibit B. The aggregate principal amount of the Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC, as
hereinafter provided; provided that, subject to Section 2.04 hereof, the aggregate principal amount
of the Global Security or Securities shall not exceed $400,000,000 (or $460,000,000 if the
Underwriters elect to purchase all of the Additional Securities pursuant to the Option).



     Securities issued in exchange for interests in a Global Security pursuant to Section 2.05
hereof may be issued in the form of permanent certificated Securities in registered form in
substantially the form set forth in Exhibit A (the “Physical Securities”).



2.02 Execution and Authentication.




     Upon a written order of the Company signed by one Officer of the Company, the Trustee shall
authenticate Securities for original issue in the aggregate principal amount of $400,000,000 and
such additional principal amount, if any, as shall be determined pursuant to the next sentence of
this Section 2.02. Upon receipt by the Trustee of an Officers’ Certificate stating that the
Underwriters have elected to purchase from the Company a specified principal amount of Additional
Securities, not to exceed $60,000,000, pursuant to the Option, the Trustee shall authenticate and
deliver such specified principal amount of Additional Securities to or upon the written order of
the Company signed as provided in the immediately preceding sentence. Such
Officers’ Certificate must be received by the Trustee not later than the proposed date for
delivering of such Additional Securities. The aggregate principal amount of Securities



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outstanding at any time may not exceed $400,000,000 except as provided in this Section 2.02 and Section 2.04
hereof.



2.03 Registrar, Paying Agent and Conversion Agent.




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



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



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



2.04 Additional Securities.




     The Company may, without the consent of the Holders and notwithstanding Sections 2.01 and 2.02
hereof, reopen the Securities and issue additional Securities hereunder with the same terms and
conditions (except for any difference in the issue price therefor and interest accrued prior to the
date of issuance thereof) and with the same CUSIP number as the Securities initially issued
hereunder in an unlimited aggregate principal amount, which will form the same series with the
Securities initially issued hereunder, provided that such additional Securities constitute the same
issue as the Securities initially issued hereunder for U.S. federal income tax purposes. The
Securities initially issued hereunder and any such additional Securities would rank equally and
ratably and would be treated as a single series of debt securities for all purposes under the
Indenture.



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



     (A) The Global Securities initially shall (i) be registered in the name of DTC or the nominee
of DTC, (ii) be delivered to the Trustee as custodian for DTC and (iii) bear the legend as set
forth herein.



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     Members of, or participants in, DTC (“Participants”) shall have no rights under this Indenture
with respect to any Global Security held on their behalf by DTC, or the Trustee as its custodian,
or under the Global Security, and DTC may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of the Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee
or any agent of the Company or the Trustee from giving effect to any written certification, proxy
or other authorization furnished by DTC or impair, as between DTC and Participants, the operation
of customary practices governing the exercise of the rights of a Holder of any Security.



     (B) Transfers of Global Securities shall be limited to transfers in whole, but not in part, to
DTC, its successors or their respective nominees. In addition, Physical Securities shall be
transferred to all beneficial owners, as identified by DTC, in exchange for their beneficial
interests in Global Securities only if (i) DTC notifies the Company that DTC is unwilling or unable
to continue as depositary for any Global Security (or DTC ceases to be a “clearing agency”
registered under Section 17A of the Exchange Act) and a successor Depositary is not appointed by
the Company within ninety (90) days of such notice or cessation or (ii) an Event of Default has
occurred and is continuing and the Registrar has received a written request from DTC to issue
Physical Securities.



     (C) In connection with the transfer of a Global Security in its entirety to beneficial owners
pursuant to Section 2.05(B) hereof, such Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner identified by DTC
in exchange for its beneficial interest in such Global Security, an equal aggregate principal
amount of Physical Securities of authorized denominations.



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



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



2.06 Ranking.




     The indebtedness of the Company arising under or in connection with this Indenture and every
outstanding Security issued under this Indenture from time to time (including any additional
Securities issued pursuant to Section 2.04 hereof) constitutes and will constitute a senior
unsecured obligation of the Company, ranking equally with other existing and future senior
unsecured indebtedness of the Company and ranking senior to any existing or future subordinated
indebtedness of the Company.



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III. REDEMPTION AND REPURCHASE




3.01 Redemption and Repurchase.




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



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



     (C) The Company shall not have the right to redeem any Securities prior to July 15, 2012,
except to preserve the Company’s status as a real estate investment trust. If, at any time, the
Company determines that it is necessary to redeem the Securities in order to preserve the Company’s
status as a real estate investment trust, the Company may redeem all or any part of the Securities
at a price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any,
to, but excluding, the Redemption Date. In such case, the Company shall provide the Trustee with
an Officers’ Certificate evidencing that the Board of the Company has, in good faith, made the
determination that it is necessary to redeem the Securities in order to preserve the Company’s
status as a real estate investment trust, on which the Trustee may conclusively rely.


The Company shall have the right, at the Company’s option, at any time, and from time to time, on a
Redemption Date on or after July 15, 2012, to redeem all or any part of the Securities at a price
payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any, to, but
excluding, the Redemption Date.



In no event shall any Redemption Date be a Legal Holiday; provided further, that if the Redemption
Date with respect to a Security is after a record date for the payment of an installment of
interest and on or before the related interest payment date, then accrued and unpaid interest to,
but excluding, such interest payment date shall be paid, on such interest payment date, to the
Holder of record of such Security at the close of business on such record date, and the Holder
surrendering such Security for Redemption shall not be entitled to any such interest unless such
Holder was also the Holder of record of such Security at the close of business on such record date.




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



3.02 Notices to Trustee.




     If the Company elects to redeem Securities pursuant to paragraph 6 of the Securities, it shall
notify the Trustee of the Redemption Date, the applicable provision of this Indenture pursuant to
which the Redemption is to be made and the aggregate principal amount of Securities



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to be redeemed, which notice shall be provided to the Trustee by the Company at least fifteen
(15) days prior to the mailing, in accordance with Section 3.04 hereof, of the notice of Redemption
(unless a shorter notice period shall be satisfactory to the Trustee).



3.03 Selection of Securities to Be Redeemed.




     If the Company has elected to redeem less than all the Securities pursuant to paragraph 6 of
the Securities, the Trustee shall, within five (5) Business Days after receiving the notice
specified in Section 3.02 hereof, select the Securities to be redeemed by lot, on a pro rata basis
or in accordance with any other method the Trustee considers fair and appropriate. The Trustee
shall make such selection from Securities then outstanding and not already to be redeemed by virtue
of having been previously called for Redemption. The Trustee may select for Redemption portions of
the principal amount of Securities that have denominations larger than $1,000 principal amount.
Securities and portions of them the Trustee selects for Redemption shall be in amounts of $1,000
principal amount or integral multiples of $1,000 principal amount. The Trustee shall promptly
notify the Company in writing of the Securities selected for Redemption and the principal amount
thereof to be redeemed.



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



3.04 Notice of Redemption.




     At least thirty (30) days but not more than sixty (60) days before a Redemption Date, the
Company shall mail, or cause to be mailed, by first-class mail a notice of Redemption to each
Holder whose Securities are to be redeemed, at the address of such Holder appearing in the security
register.



     The notice shall identify the Securities and the aggregate principal amount thereof to be
redeemed pursuant to the Redemption and shall state:




     (i) the Redemption Date;




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




     (iii) the Conversion Rate and the Conversion Price;




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




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



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




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




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




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




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



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



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



3.05 Effect of Notice of Redemption.




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



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



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



3.06 Deposit of Redemption Price.




     Prior to 10:00 A.M., New York City time on the Redemption Date, the Company shall deposit with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust)
money, in funds immediately available on the Redemption Date, sufficient to pay the consideration
payable as herein provided upon Redemption on all Securities to be redeemed on that date. The
Paying Agent shall return to the Company, as soon as practicable, any money not required for that
purpose.



3.07 Securities Redeemed in Part.




     Any Security to be submitted for Redemption only in part shall be delivered pursuant to
Section 3.05 hereof (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or its attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities, of any authorized denomination as requested
by such Holder, of the same tenor and in aggregate principal amount equal to the portion of such
Security not submitted for Redemption.



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



3.08 Purchase of Securities at Option of the Holder.




     (A) At the option of the Holder thereof, Securities (or portions thereof that are integral
multiples of $1,000 in principal amount) shall be purchased by the Company pursuant to paragraph 8
of the Securities on July 15, 2012, July 15, 2017 and July 15, 2022 (each, an “Option Purchase
Date”), at a purchase price, payable in cash, equal to one hundred percent (100%) of the principal
amount of the Securities (or such portions thereof) to be so purchased (the “Option Purchase
Price”), plus accrued and unpaid interest, if any, to, but excluding, the applicable Option
Purchase Date (provided, that such accrued and unpaid interest shall be paid to the Holder of
record of such Securities at the close of business on the record date immediately preceding such
Option Purchase Date), upon:



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




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




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




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




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



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



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



     Notwithstanding anything herein to the contrary, any Holder that has delivered the Purchase
Notice contemplated by this Section 3.08(A) to the Company (if it is acting as its own Paying
Agent) or to a Paying Agent designated by the Company for such purpose in the Option Purchase
Notice shall have the right to withdraw such Purchase Notice by delivery, at any time prior to the
close of business on the Business Day immediately preceding the applicable Option Purchase Date, of
a written notice of withdrawal to the Company (if acting as its own Paying Agent) or the Paying
Agent, which notice shall contain the information specified in Section 3.08(B)(vii) hereof.



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



-13-









 





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




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




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




     (iii) that Securities with respect to which a Purchase Notice is given by a Holder
may be converted pursuant to Article VIII hereof only if such Purchase Notice has been
withdrawn in accordance with this Section 3.08 or if there shall be a Default in the
payment of such Option Purchase Price or in accrued and unpaid interest, if any, payable
as herein provided upon Purchase at Holder’s Option;




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




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




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




     (vii) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Company (if acting as its own Paying Agent) or the Paying Agent receives, at any
time prior to the close of business on the Business Day immediately preceding the
applicable Option Purchase Date, or such longer period as may be required by law, a
letter or telegram, telex or facsimile transmission (receipt of which is confirmed and
promptly followed by a letter) setting forth (I) the name of such Holder, (II) a
statement that such Holder is withdrawing its election to have Securities purchased by
the Company on such Option Purchase Date pursuant to a Purchase at Holder’s Option, (III)
the certificate number(s) of such Securities to be so withdrawn, if such Securities are
in certificated form, (IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or an integral



-14-









 







multiple thereof and (V) the principal amount, if any, of the Securities of such
Holder that remain subject to the Purchase Notice delivered by such Holder in accordance
with this Section 3.08, which amount must be $1,000 or an integral multiple thereof;




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




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



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



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



     (C) Subject to the provisions of this Section 3.08, the Company shall pay, or cause to be
paid, the Option Purchase Price, plus accrued and unpaid interest, if any, to, but excluding, the
applicable Option Purchase Date, with respect to each Security subject to Purchase at Holder’s
Option to the Holder thereof as promptly as practicable, but in no event later than the later of
the applicable Option Purchase Date and the time such Security (together with all necessary
endorsements) is surrendered to the Paying Agent; provided, however, that such accrued and unpaid
interest shall be paid, on the applicable interest payment date, to the Holder of record of such
Security at the close of business on the record date immediately preceding such Option Purchase
Date.



     (D) Prior to 10:00 A.M., New York City time on the applicable Option Purchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) money, in funds immediately available on the applicable Option
Purchase Date, sufficient to pay the Option Purchase Price, plus accrued and unpaid interest, if
any, to, but excluding, such Option Purchase Date, of all of the Securities that are to be
purchased by the Company on such Option Purchase Date pursuant to a Purchase at Holder’s Option.
The Paying Agent shall return to the Company, as soon as practicable, any money not required for
that purpose.



     (E) Once the Purchase Notice has been duly delivered in accordance with this Section 3.08, the
Option Purchase Price, plus accrued and unpaid interest, if any, relating to the Securities to be
purchased pursuant to the Purchase at Holder’s Option shall, on the applicable Option Purchase
Date, become due and payable in accordance herewith, and, on and after such date (unless there
shall be a Default in the payment of the consideration payable as herein provided upon a Purchase
at Holder’s Option), except as otherwise herein provided, such



-15-









 







Securities shall cease to bear interest, and all rights of the Holders of such Securities
shall terminate, other than the right to receive, in accordance herewith, such consideration.



     (F) Securities with respect to which a Purchase Notice has been duly delivered in accordance
with this Section 3.08 may be converted pursuant to Article VIII hereof, if otherwise convertible
in accordance with Article VIII hereof, only if such Purchase Notice has been withdrawn in
accordance with this Section 3.08 or if there shall be a Default in the payment of the
consideration payable as herein provided upon a Purchase at Holder’s Option.



     (G) If any Security subject to Purchase at Holder’s Option shall not be paid in accordance
herewith, the principal of, and accrued and unpaid interest on, such Security shall, until paid,
bear interest, payable in cash, at the rate borne by such Security on the principal amount of such
Security, and such Security shall continue to be convertible pursuant to Article VIII hereof.



     (H) Any Security which is to be submitted for Purchase at Holder’s Option only in part shall
be delivered pursuant to this Section 3.08 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or its attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make available for delivery to the
Holder of such Security without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, of the same tenor and in aggregate principal amount equal
to the portion of such Security not submitted for Purchase at Holder’s Option.



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



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



3.09 Repurchase at Option of Holder Upon a Fundamental Change.




     (A) In the event any Fundamental Change (as defined below) shall occur, each Holder of
Securities shall have the right (the “Fundamental Change Repurchase Right”), at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities (or portions thereof
that are integral multiples of $1,000 in principal amount), on a date selected by the Company (the
“Fundamental Change Repurchase Date”), which Fundamental Change



-16-









 







Repurchase Date shall be no later than thirty five (35) days, nor earlier than twenty (20)
days, after the date the Fundamental Change Notice (as defined below) is mailed in accordance with
Section 3.09(B) hereof, at a price, payable in cash, equal to one hundred percent (100%) of the
principal amount of the Securities (or portions thereof) to be so repurchased (the “Fundamental
Change Repurchase Price”), plus accrued and unpaid interest, if any, to, but excluding, the
Fundamental Change Repurchase Date, upon:




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




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




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




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




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


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




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



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



-17-









 





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



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



     (B) Within twenty (20) Business Days after the occurrence of a Fundamental Change, the Company
shall mail, or cause to be mailed, to all Holders of record of the Securities at their addresses
shown in the register of the Registrar, and to beneficial owners as required by applicable law, a
notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change and the
Fundamental Change Repurchase Right arising as a result thereof. The Company shall deliver a copy
of the Fundamental Change Notice to the Trustee and shall cause a copy to be published at the
expense of the Company in The New York Times or The Wall Street Journal or
another newspaper of national circulation.



     Each Fundamental Change Notice shall state:




     (i) the events causing the Fundamental Change;




     (ii) the date of such Fundamental Change;




     (iii) the Fundamental Change Repurchase Date;




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




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




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




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




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




     (ix) that the Fundamental Change Repurchase Price, plus accrued and unpaid interest,
if any, to, but excluding, the Fundamental Change Repurchase Date, for



-18-









 







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




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




     (xi) that a Holder will be entitled to withdraw its election in the Purchase Notice
if the Company (if acting as its own Paying Agent), or the Paying Agent receives, prior to
the close of business on the Business Day immediately preceding the Fundamental Change
Repurchase Date, or such longer period as may be required by law, a letter or telegram,
telex or facsimile transmission (receipt of which is confirmed and promptly followed by a
letter) setting forth (I) the name of such Holder, (II) a statement that such Holder is
withdrawing its election to have Securities purchased by the Company on such Fundamental
Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change, (III) the
certificate number(s) of such Securities to be so withdrawn, if such Securities are in
certificated form, (IV) the principal amount of the Securities of such Holder to be so
withdrawn, which amount must be $1,000 or an integral multiple thereof and (V) the
principal amount, if any, of the Securities of such Holder that remain subject to the
Purchase Notice delivered by such Holder in accordance with this Section 3.09, which
amount must be $1,000 or an integral multiple thereof;




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




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



-19-









 






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



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



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



     (C) Subject to the provisions of this Section 3.09, the Company shall pay, or cause to be
paid, the Fundamental Change Repurchase Price, plus accrued and unpaid interest, if any, to, but
excluding, the Fundamental Change Repurchase Date, with respect to each Security as to which the
Fundamental Change Repurchase Right shall have been exercised to the Holder thereof as promptly as
practicable, but in no event later than the later of the Fundamental Change Repurchase Date and the
time such Security is surrendered to the Paying Agent; provided, however, that if such Fundamental
Change Repurchase Date is after a record date for the payment of an installment of interest and on
or before the related interest payment date, then the accrued and unpaid interest, if any, to, but
excluding, such interest payment date will be paid on such interest payment date to the Holder of
record of such Security at the close of business on such record date, and the Holder surrendering
such Security for repurchase will not be entitled to any such accrued and unpaid interest unless
such Holder was also the Holder of record of such Security at the close of business on such record
date.



     (D) Prior to 10:00 A.M., New York City time on a Fundamental Change Repurchase Date, the
Company shall deposit with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust) money, in funds immediately available on the Fundamental Change
Repurchase Date, sufficient to pay the consideration payable as herein provided upon Repurchase
Upon Fundamental Change for all of the Securities that are to be repurchased by the Company on such
Fundamental Change Repurchase Date pursuant to a Repurchase Upon Fundamental Change. The Paying
Agent shall return to the Company, as soon as practicable, any money not required for that purpose.



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



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




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



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



     (I) Notwithstanding anything herein to the contrary, no Securities shall be repurchased by the
Company at the option of the Holders upon a Fundamental Change pursuant to this Section 3.09 if the
principal amount of the Securities has been accelerated, and such acceleration has not been
rescinded, on or prior to the Fundamental Change Repurchase Date (except in the case of an
acceleration resulting from a Default by the Company in the payment of the Fundamental Change
Repurchase Price with respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities held by it during the continuance of such acceleration.



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



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




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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the “beneficial owner” (as such term is used in
Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%)
or more of the Company’s Voting Stock; or




     (b) there occurs a sale, transfer, lease, conveyance or other disposition of
all or substantially all of the property or assets of the Company to any “person” or
“group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange



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Act), including any group acting for the purpose of acquiring, holding, voting or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange
Act (such an event, an “Asset Sale Control Change”); or




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




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




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




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




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




     (2) any new directors whose election to the Company’s Board or whose
nomination for election by the Company’s stockholders was approved by at
least a majority of the directors of the Company then still in office either
who were directors of the Company on the Issue Date or whose election or
nomination for election was previously so approved; or




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



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



IV. ADDITIONAL COVENANTS



Holders shall have the benefit of the following covenants, in addition to the covenants of the
Company set forth in Article Ten of the Base Indenture:




4.01 SEC Reports.




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



4.02 Corporate Existence.




     Subject to Article Eight of the Base Indenture, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence and the
corporate existence of each of its Subsidiaries, in accordance with the respective organizational
documents of the Company and of each Subsidiary, and the rights (charter and statutory),



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licenses and franchises of the Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the corporate existence of any
Subsidiary, if in the good faith judgment of the Board (i) such preservation or existence is not
material to the conduct of business of the Company and (ii) the loss of such right, license or
franchise or the dissolution of such Subsidiary does not have a material adverse impact on the
Holders.




4.03 Further Instruments and Acts.




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



V. DEFAULTS AND REMEDIES




5.01 Events of Default. 




     An “Event of Default” occurs if:




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




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




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




     (iv) the Company fails to timely provide a Fundamental Change Notice or an Option
Purchase Notice, as required by the provisions of this Indenture, or fails to timely
provide any notice pursuant to, and in accordance with, Section 8.15(D) hereof;




     (v) the Company fails to comply with any other term, covenant or agreement set forth
in the Securities or this Indenture and such failure continues for the period, and after
the notice, specified below;




     (vi) the Company or any of its Subsidiaries defaults in the payment when due, after
the expiration of any applicable grace period, of principal of, or premium, if any, or
interest on, Indebtedness for money borrowed, in the aggregate principal amount then
outstanding of ten million dollars ($10,000,000) or more, which default results in the
acceleration of Indebtedness of the Company or any of its Subsidiaries for money borrowed
in such aggregate principal amount or more so that it becomes due and payable prior to the
date on which it would otherwise become due and payable and such default is not cured or
waived, or such acceleration is not rescinded, within ten (10)



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days after written notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least
twenty five percent (25%) in aggregate principal amount of the Securities then
outstanding, each in accordance with this Indenture;




     (vii) the Company or any of its Subsidiaries fails, within thirty (30) days, to pay,
bond or otherwise discharge any final, non-appealable judgments or orders for the payment
of money the total uninsured amount of which for the Company or any of its Subsidiaries
exceeds ten million dollars ($10,000,000), which are not stayed on appeal;




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




     (A) commences a voluntary case,




     (B) consents to the entry of an order for relief against it in an involuntary
case,




     (C) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or




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




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




     (A) is for relief against the Company or any of its Significant Subsidiaries in
an involuntary case or proceeding, or adjudicates the Company or any of its
Significant Subsidiaries insolvent or bankrupt,




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




     (C) orders the winding up or liquidation of the Company or any of its
Significant Subsidiaries,




and, in the case of each of the foregoing clauses (A), (B) and (C) of this Section
5.01(ix), the order or decree remains unstayed and in effect for at least sixty (60)
consecutive days.



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



     A Default under clause (v) above is not an Event of Default until (I) the Trustee notifies the
Company in writing, or the Holders of at least twenty five percent (25%) in aggregate principal
amount of the Securities then outstanding notify the Company and the Trustee in



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




5.02 Acceleration.




     If an Event of Default (excluding an Event of Default specified in Section 5.01(viii) or (ix)
hereof with respect to the Company (but including an Event of Default specified in Section
5.01(viii) or (ix) hereof solely with respect to a Significant Subsidiary of the Company)) occurs
and is continuing, the Trustee by written notice to the Company, or the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Securities then outstanding by written
notice to the Company and the Trustee, may declare the Securities to be immediately due and payable
in full. Upon such declaration, the principal of, and any accrued and unpaid interest on, all
Securities shall be due and payable immediately. If an Event of Default specified in Section
5.01(viii) or (ix) hereof with respect to the Company (excluding, for purposes of this sentence, an
Event of Default specified in Section 5.01(viii) or (ix) hereof solely with respect to a
Significant Subsidiary of the Company) occurs, the principal of, and accrued and unpaid interest
on, all the Securities shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. The Holders of a majority in
aggregate principal amount of the Securities then outstanding by written notice to the Trustee may
rescind or annul an acceleration and its consequences if (A) the rescission would not conflict with
any order or decree, (B) all existing Events of Default, except the nonpayment of principal or
interest that has become due solely because of the acceleration, have been cured or waived and (C)
all amounts due to the Trustee under Section 607 of Base the Indenture have been paid.



5.03 Waiver of Past Defaults.




     Subject to Section 508 of the Base Indenture and Section 7.02 hereof, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may, by written notice to
the Trustee, waive any past Default or Event of Default and its consequences, other than (A) a
Default or Event of Default in the payment of the principal of, or premium, if any, or interest on,
any Security, or in the payment of the Redemption Price, the Option Purchase Price or the
Fundamental Change Repurchase Price (or accrued and unpaid interest, if any, payable as herein
provided, upon Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental Change), (B)
a Default or Event of Default arising from a failure by the Company to convert any Securities in
accordance with this Indenture or (C) any Default or Event of Default in respect of any provision
of this Indenture or the Securities which, under Section 7.02 hereof, cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. When a Default or an
Event of Default is waived, it is cured and ceases to exist for all purposes under this Indenture.
This Section 5.03 shall be in lieu of Trust Indenture Act § 316(a)(1)(B), and, as permitted by the
Trust Indenture Act, Trust Indenture Act § 316(a)(1)(B) is hereby expressly excluded from this
Indenture.



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5.04 Limitation on Suits.




     Except as provided in Section 508 of the Base Indenture and Section 5.05 hereof, a
Securityholder may not institute any proceeding under this Indenture, or for the appointment of a
receiver or a trustee, or for any other remedy under this Indenture unless:




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




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




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




     (iv) the Trustee does not comply with the request within sixty (60) days after
receipt of such notice, request and offer of indemnity; and




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



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



5.05 Rights of Holders to Convert Securities.




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



5.06 Notice of Defaults.




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



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VI. DISCHARGE OF INDENTURE




6.01 Termination of the Obligations of the Company.




     This Indenture shall cease to be of further effect if (a) either (i) all outstanding
Securities have been delivered to the Trustee for cancellation or (ii) all outstanding Securities
have become due and payable at their scheduled maturity or upon Purchase at Holder’s Option,
Redemption or Repurchase Upon Fundamental Change, and in either case the Company irrevocably
deposits, prior to the applicable due date, with the Trustee or the Paying Agent (if the Paying
Agent is not the Company or any of its Affiliates) cash, and, if applicable as herein provided and
in accordance herewith, such other consideration, sufficient to pay all amounts due and owing on
all outstanding Securities on the Maturity Date or an Option Purchase Date, Redemption Date or
Fundamental Change Repurchase Date, as the case may be; (b) the Company pays to the Trustee all
other sums payable hereunder by the Company; (c) no Default or Event of Default with respect to the
Securities shall exist on the date of such deposit; (d) such deposit will not result in a breach or
violation of, or constitute a Default or Event of Default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound; and (e) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for herein relating to the satisfaction and
discharge of this Indenture have been complied with; provided, however, that the obligations of the
Company to the Trustee under Section 607 of the Base Indenture, the obligations of the Trustee to
any Authenticating Agent under Section 614 of the Base Indenture, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 of the Base Indenture, Sections 515, 1001
and 1002 of the Base Indenture and Sections 2.02, 2.03, 2.04, 2.05, 3.05, 3.08 and 3.09 hereof and
Articles VI and VIII hereof shall survive any discharge of this Indenture until such time as the
Securities have been paid in full and there are no Securities outstanding.



VII. SUPPLEMENTAL INDENTURES




7.01 Supplemental Indentures Without Consent of Holders. 




     In addition to the provisions of Section 901 of the Base Indenture, the Company, with the
consent of the Trustee, may amend or supplement this Indenture or the Securities without notice to
or the consent of any Securityholder:




     (i) to comply with Section 801 of the Base Indenture and Section 8.12 hereof;




     (ii) to secure the obligations of the Company in respect of the Securities; and




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



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



7.02 Supplemental Indentures With Consent of Holders.




     The Company, with the consent of the Trustee, may amend or supplement this Indenture or the
Securities without notice to any Securityholder but with the written consent of the Holders of at
least a majority in aggregate principal amount of the outstanding Securities. Subject to Section
508 of the Base Indenture and Sections 5.03 and 5.05 hereof, the Holders of a majority in aggregate
principal amount of the outstanding Securities may, by notice to the Trustee, waive compliance by
the Company with any provision of this Indenture or the Securities without notice to any other
Securityholder.



     Notwithstanding anything herein to the contrary, without the consent of each Holder of each
outstanding Security affected, no supplemental indenture shall, in addition to the provisions of
Section 902 of the Base Indenture:




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




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




     (c) modify the provisions of Section 2.06 hereof in a manner adverse to
Holders;




     (d) adversely affect the right of Holders to convert Securities in accordance
with Article VIII hereof;




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




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



     Promptly after an amendment, supplement or waiver under Section 901 of the Base Indenture and
Section 7.01 hereof or Section 902 of the Base Indenture and this Section 7.02 becomes effective,
the Company shall mail, or cause to be mailed, to Securityholders a notice briefly describing such
amendment, supplement or waiver. Any failure of the Company to mail such notice shall not in any
way impair or affect the validity of such amendment, supplement or waiver.



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7.03 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder’s Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to its Security or portion of a Security if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every Holder.



     After an amendment, supplement or waiver becomes effective with respect to the Securities, it
shall bind every Holder unless such amendment, supplement or waiver makes a change that requires,
pursuant to Section 7.02 hereof, the consent of each Holder affected. In that case, the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to it and, provided
that notice of such amendment, supplement or waiver is reflected on a Security that evidences the
same debt as the consenting Holder’s Security, every subsequent Holder of a Security or portion of
a Security that evidences the same debt as the consenting Holder’s Security.



     Nothing in this Section 7.03 shall impair the Company’s rights pursuant to Section 901 of the
Base Indenture and Section 7.01 hereof to amend this Indenture or the Securities without the
consent of any Securityholder in the manner set forth in, and permitted by, such Section 901 and
Section 7.01.



7.04 Notation on or Exchange of Securities.




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



7.05 Trustee Protected.




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



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VIII. CONVERSION




8.01 Conversion Privilege; Restrictive Legends.




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




     (i) Conversion Based on Closing Sale Price of Common Stock. Prior to the Maturity
Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash and, if applicable, shares of Common Stock during any calendar quarter after the calendar quarter ending
September 30, 2007, if the Closing Sale Price for each of twenty (20) or more Trading
Days in a period of thirty (30) consecutive Trading Days ending on the last Trading Day
of the immediately preceding calendar quarter exceeds one hundred and twenty percent
(120%) of the Conversion Price in effect on the last Trading Day of the immediately
preceding calendar quarter. Solely for purposes of determining whether the Securities
shall have become convertible pursuant to this Section 8.01(A)(i), the Company shall, in
its good faith determination, make appropriate adjustments to the Closing Sale Prices
and/or such Conversion Price used to determine whether the Securities shall have become
convertible pursuant to this Section 8.01(A)(i) to account for any adjustments to the
Conversion Rate which shall have become effective, or any event requiring an adjustment
to the Conversion Rate where the Ex Date of such event occurs, during the period of
thirty (30) consecutive Trading Days ending on the last Trading Day of the immediately
preceding calendar quarter.




     (ii) Conversion Upon Satisfaction of Trading Price Condition. Prior to the Maturity
Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon Fundamental
Change, the Securities may be surrendered for conversion into cash and, if applicable, shares of Common Stock during the five (5) consecutive Business Days immediately after
any five (5) consecutive Trading Day period (such five (5) consecutive Trading Day
period, the “Note Measurement Period”) in which the average Trading Price per $1,000
principal amount of the Securities was equal to or less than ninety seven percent (97%)
of the average Conversion Value during the Note Measurement Period (such condition, the
“Trading Price Condition”). The Bid Solicitation Agent shall not have any obligation to
determine the Trading Price unless the Company has requested such determination, and the
Company shall have no obligation to make such request unless a Holder of at least one
million dollars ($1,000,000) in aggregate principal amount of the Securities provides the
Company with reasonable evidence that the Trading Price per $1,000 principal amount of
the Securities would be equal to or less than ninety seven percent (97%) of the product
of the Closing Sale Price and the Conversion Rate. Upon receipt of such evidence, the
Company shall instruct the Bid Solicitation Agent to determine the Trading Price per
$1,000 principal amount of the Securities for each of the five (5) successive Trading
Days immediately after the Company receives such evidence and on each Trading Day
thereafter until the first Trading Day on which the Trading Price Condition is no



-31-









 






longer satisfied. For purposes of this paragraph, the “Conversion Value” per $1,000 principal
amount of Securities, on a given Trading Day, means the product of the Closing Sale Price
on such Trading Day and the Conversion Rate in effect on such Trading Day.




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




     (iv) Conversion Upon Certain Distributions. If the Company takes any action, or
becomes aware of any event, that would require an adjustment to the Conversion Rate
pursuant to Sections 8.06(b), 8.06(c), 8.06(d) (other than by reason of the distribution
of Regular Quarterly Cash Dividends) or 8.06(e) hereof, the Securities may, prior to the
Maturity Date or earlier Redemption, Purchase at Holder’s Option or Repurchase Upon
Fundamental Change, be surrendered for conversion into cash and, if applicable, shares of
Common Stock beginning on the date the Company mails the notice to the Holders as
provided in Section 8.11 hereof (or, if earlier, the date the Company is required to mail
such notice) and at any time thereafter until the close of business on the Business Day
immediately preceding the Ex Date (as defined in Section 8.06(g) hereof) of the
applicable transaction or until the Company announces that such transaction will not take
place.




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




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




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




then, in each case, the Securities may, prior to the Maturity Date or earlier Redemption,
Purchase at Holder’s Option or Repurchase Upon Fundamental Change, be surrendered for
conversion into cash and, if applicable, shares of Common Stock at any time during the
period that begins on, and includes, the date that is thirty (30) calendar days prior to
the date originally announced by the Company as the anticipated effective date of such
transaction (which anticipated effective date the Company shall disclose, in good faith,
in the written notice and public announcement referred to in Section 8.01(C) hereof) and
ends on, and includes, the date that is thirty (30) calendar days after the actual
effective date of such transaction; provided, however, that if such transaction is a
Make-Whole Fundamental Change, then the Securities may also be surrendered for conversion
into cash and, if applicable, shares of Common Stock at



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any time during the Make-Whole Conversion Period applicable to such Make-Whole Fundamental Change; provided, further,
that if such transaction is a Fundamental Change, then the Securities may also be
surrendered for conversion into cash and, if applicable, shares of Common Stock at any
time until, and including, the Fundamental Change Repurchase Date applicable to such
Fundamental Change.




     (vi) Conversion during specified periods. The Securities may be surrendered for
conversion into cash and, if applicable, shares of Common Stock at any time from, and
including, June 15, 2012 to, and including, July 15, 2012 and at any time from, and
including, June 15, 2027 until the close of business of the business day immediately
preceding July 15, 2027 or earlier Redemption, Purchase at Holder’s Option or Repurchase
Upon Fundamental Change.


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




     (B) The initial Conversion Rate shall be 20.0000 shares of Common Stock per $1,000 principal
amount of Securities. The Conversion Rate shall be subject to adjustment in accordance with
Sections 8.06 through 8.15 hereof.



     (C) Whenever any event described in Section 8.01 hereof shall occur which shall cause the
Securities to become convertible as provided in this Article VIII, the Company shall promptly
deliver written notice of the convertibility of the Securities to the Trustee and each Holder and
shall, as soon practicable, but in no event later than the open of business on the first Business
Day the Securities shall become convertible as provided in this Article VIII as a result of such
event (or, in the case of a Fundamental Change or a Make-Whole Fundamental Change or a
consolidation, amalgamation, statutory arrangement, merger or binding share exchange to which the
Company is a party and pursuant to which the Common Stock would be converted into or exchanged for,
or would constitute solely the right to receive, cash, securities or other property, no later than
the thirtieth (30th) calendar day prior to the date originally announced by the Company as the
anticipated effective date of such transaction), publicly announce, through a reputable national
newswire service, and publish on the Company’s website, that the Securities have become
convertible. Such written notice and public announcement shall include:




     (i) a description of such event;




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




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




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



          If the Company shall fail to make such public announcement on or before the open of business
on the first date the Securities shall become convertible as provided in this



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Article VIII as a result of such event, then (1) the Securities shall remain convertible for an additional Business
Day for each Business Day, on or after such first date the Securities become convertible, that the
Company shall fail to make such public announcement (an “Extension Period”); and (2) if the event
causing the Securities to become convertible shall be a Make-Whole Fundamental Change, then the
increased Conversion Rate applicable, pursuant to Section 8.15 hereof, to Securities surrendered
within the time periods specified in Section 8.15 hereof shall continue to apply to Securities
surrendered for conversion during any such Extension Period.




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



8.02 Conversion Procedure and Payment Upon Conversion.




     (A) To convert a Security, a Holder must satisfy the requirements of paragraph 10 of the
Securities, and the Securities must be convertible pursuant to Section 8.01 hereof. Upon
conversion of a Holder’s Security, the Company shall deliver, through the Conversion Agent, the
following to such Holder:




     (i) a principal amount (the “Principal Return”) in cash equal to the sum of the
Daily Principal Returns for each Trading Day in the Cash Settlement Averaging Period for
such conversion; and




     (ii) if the sum of the Daily Net Shares for each Trading Day in the Cash Settlement
Averaging Period for such conversion is greater than or equal to one (1), a certificate
for a number of shares of Common Stock (the “Net Shares”) equal to such sum; provided,
however, that the Company shall not issue fractional shares of Common Stock and shall
instead deliver cash (in addition to any other consideration payable upon such
conversion) in an amount equal to the value of such fraction computed on the basis of the
Volume-Weighted Average Price per share of Common Stock on the last Trading Day in the
applicable Cash Settlement Averaging Period.



          The Company shall deliver such Principal Return and, if applicable, such Net Shares as soon as
practicable following the Business Day (the “Conversion Date”) on which such Holder satisfies all
the requirements for such conversion specified in paragraph 10 of the Securities, but in no event
more than three (3) Business Days after the last Trading Day in the Cash Settlement Averaging
Period applicable to such conversion; provided, however, that any Make-Whole Consideration payable
pursuant to Section 8.15 hereof shall be delivered by the Company within the time period specified
in Section 8.15 hereof.



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



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Settlement Averaging Period with respect to such conversion shall be deemed to be the twenty (20) consecutive Trading-Day period
that begins on and includes the twentieth (20th) scheduled Trading Day prior to the Maturity Date.




          “Daily Principal Return” shall mean, with respect to a Trading Day, the lesser of fifty
dollars ($50.00) and the Daily Conversion Value for such Trading Day.



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



          “Daily Net Shares” shall mean, with respect to a Trading Day, an amount equal to the
following: (i) if the Daily Conversion Value for such Trading Day is equal to or lesser than fifty
dollars ($50.00), then the Daily Net Shares with respect to such Trading Day shall mean an amount
equal to zero (0); and (ii) if the Daily Conversion Value for such Trading Day exceeds fifty
dollars ($50.00), then the Daily Net Shares with respect to such Trading Day shall mean a fraction
(a) whose numerator is the excess of such Daily Conversion Value over fifty dollars ($50.00) and
(b) whose denominator is the Volume-Weighted Average Price per share of Common Stock on such
Trading Day.



          “Volume-Weighted Average Price” per share of Common Stock on any Trading Day means the
volume-weighted average price per share of the Common Stock on the New York Stock Exchange or, if
the Common Stock is not listed on the New York Stock Exchange, on the principal exchange or
over-the-counter market on which the Common Stock is then listed or traded, from 9:30 a.m. to 4:00
p.m., New York City time, on such Trading Day, as displayed by Bloomberg or, if such price is not
available, the market value per share of Common Stock on such Trading Day as determined by a
nationally recognized investment banking firm retained for this purpose by the Company.



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



     (D) Except as provided in the Securities or in this Article VIII, no payment or adjustment
will be made for accrued interest on a converted Security or for dividends on any



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Common Stock issued on or prior to conversion, and accrued interest will be deemed to be paid by the
consideration paid to the Holder upon conversion. Such accrued interest shall be deemed to be paid
in full rather than cancelled, extinguished or forfeited. If any Holder surrenders a Security for
conversion after the close of business on the record date for the payment of an installment of
interest and prior to the related interest payment date, then, notwithstanding such conversion, the
interest payable with respect to such Security on such interest payment date shall be paid on such
interest payment date to the Holder of record of such Security at the close of business on such
record date; provided, however, that such Security, when surrendered for conversion, must be
accompanied by payment in cash to the Conversion Agent on behalf of the Company of an amount equal
to the interest payable on such interest payment date on the portion so converted; provided
further, however, that such payment to the Conversion Agent described in the immediately preceding
proviso in respect of a Security surrendered for conversion shall not be required with respect to a
Security that (i) is surrendered for conversion after the record date immediately preceding the
Maturity Date, (ii) has been called for Redemption pursuant to Section 3.04 hereof and paragraphs 6
and 7 of the Securities or (iii) is surrendered for conversion after a record date for the payment
of an installment of interest and on or before the related interest payment date, where, pursuant
to Section 3.09 hereof, the Company has specified, with respect to a Fundamental Change, a
Fundamental Change Repurchase Date that is after such record date and on or before such interest
payment date; provided further, that, if the Company shall have, prior to the Conversion Date with
respect to a Security, defaulted in a payment of interest on such Security, then in no event shall
the Holder of such Security who surrenders such Security for conversion be required to pay such
defaulted interest or the interest that shall have accrued on such defaulted interest pursuant to
Section 307 of the Base Indenture or otherwise (it being understood that nothing in this Section
8.02(D) shall affect the Company’s obligations under Section 307 of the Base Indenture).




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



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



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



8.03 Fractional Shares.



The Company will not issue fractional shares of Common Stock upon conversion of Securities and
instead will deliver a check in an amount equal to the value of such fraction computed on the basis
of the Closing Sale Price on the Trading Day immediately before the Conversion Date.





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8.04 Taxes on Conversion.




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



8.05 Company to Provide Stock.




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



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



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



8.06 Adjustment of Conversion Rate.




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




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



-37-









 






Section 8.06(a) hereof shall become effective immediately after such Ex Date, in the case of a dividend or distribution,
and shall become effective immediately after such effective date, in the case of a
subdivision or combination.




     (b) In case the Company shall issue rights or warrants to all or substantially
all holders of Common Stock, entitling them, for a period expiring not more than
sixty (60) days immediately following the record date for the determination of
holders of Common Stock entitled to receive such rights or warrants, to subscribe
for or purchase shares of Common Stock (or securities convertible into or
exchangeable or exercisable for Common Stock), at a price per share (or having a
conversion, exchange or exercise price per share) that is less than the current
market price (as determined pursuant to Section 8.06(g) hereof) per share of Common
Stock on the record date for the determination of holders of Common Stock entitled
to receive such rights or warrants, the Conversion Rate shall be increased by
multiplying the Conversion Rate in effect immediately prior to the Ex Date
corresponding to such record date by a fraction of which (A) the numerator shall be
the sum of (I) the number of shares of Common Stock outstanding immediately prior to
the open of business on such Ex Date and (II) the aggregate number of shares (the
“Underlying Shares”) of Common Stock underlying all such issued rights or warrants
(whether by exercise, conversion, exchange or otherwise), and (B) the denominator
shall be the sum of (I) number of shares of Common Stock outstanding immediately
prior to the open of business on such Ex Date and (II) the number of shares of
Common Stock which the aggregate exercise, conversion, exchange or other price at
which the Underlying Shares may be subscribed for or purchased pursuant to such
rights or warrants would purchase at such current market price per share of Common
Stock; provided, however, no adjustment shall be made pursuant to this Section
8.06(b) solely by reason of a distribution of rights pursuant to a stockholders’
rights plan, provided the Company has complied with the provisions of Section 8.14
hereof with respect to such stockholders’ rights plan and distribution. Such
increase shall become effective immediately prior to the open of business on such Ex
Date. In no event shall the Conversion Rate be decreased pursuant to this Section
8.06(b).




     (c) Except as set forth in the immediately following paragraph, in case the
Company shall dividend or distribute to all or substantially all holders of Common
Stock shares of Capital Stock of the Company or any existing or future Subsidiary
(other than Common Stock), evidences of Indebtedness or other assets (other than
dividends or distributions requiring an adjustment to the Conversion Rate in
accordance with Sections 8.06(d) or 8.06(e) hereof), or shall dividend or distribute
to all or substantially all holders of Common Stock rights or warrants to subscribe
for or purchase securities (other than dividends or distributions of rights or
warrants requiring an adjustment to the Conversion Rate in accordance with Section
8.06(b) hereof), then in each such case the Conversion Rate shall be increased by
multiplying the Conversion Rate in effect immediately prior to the open of business
on the Ex Date corresponding to the record date for the determination of
stockholders entitled to such dividend or distribution by a fraction of which (A)
the numerator shall be the current market price per share of Common Stock (as



-38-









 






determined pursuant to Section 8.06(g) hereof) on such record date and (B) the
denominator shall be an amount equal to (I) such current market price per share of
Common Stock less (II) the fair market value (as determined in good faith by the
Board, whose determination shall be conclusive and described in a Board Resolution),
on such Ex Date, of the portion of the shares of Capital Stock, evidences of
Indebtedness, assets, rights and warrants to be dividended or distributed applicable
to one share of Common Stock, such increase to become effective immediately prior to
the open of business on such Ex Date; provided however, that if such denominator is
equal to or less than zero, then, in lieu of the foregoing adjustment to the
Conversion Rate, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion of its Securities, in addition to any consideration
otherwise payable as herein provided upon such conversion, an amount of shares of
Capital Stock, evidences of Indebtedness, assets, rights and/or warrants that such
Holder would have received had such Holder converted all of its Securities on such
record date. Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants (other than distributions of rights or warrants
requiring an adjustment to the Conversion Rate in accordance with Section 8.06(b)
hereof) (collectively, “Rights”) pro rata to holders of Common Stock, the Company
may, in lieu of making any adjustment pursuant to this Section 8.06(c), make proper
provision so that each Holder of a Security who converts such Security (or any
portion thereof) on or after the record date for such distribution and prior to the
expiration or redemption of the Rights shall be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable (and cash, if any,
payable) upon such conversion (the “Conversion Shares”), a number of Rights to be
determined as follows: (i) if such conversion occurs on or prior to the date for the
distribution to the holders of Rights of separate certificates evidencing such
Rights (the “Distribution Date”), the same number of Rights to which a holder of a
number of shares of Common Stock equal to the number of shares of Conversion Shares
would be entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the Rights; and (ii) if such conversion occurs after
the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Security so converted
was convertible immediately prior to the Distribution Date would have been entitled
on the Distribution Date in accordance with the terms and provisions of and
applicable to the Rights. Any distribution of rights or warrants pursuant to a
stockholders’ rights plan complying with the requirements set forth in the preceding
sentence of this paragraph and with Section 8.14 hereof shall not constitute a
distribution of rights or warrants pursuant to this Section 8.06(c). In no event
shall the Conversion Rate be decreased pursuant to this Section 8.06(c).




Notwithstanding anything to the contrary in this Section 8.06(c), if, in a
distribution requiring an adjustment to the Conversion Rate pursuant to the
immediately preceding paragraph, the property distributed by the Company to all
Holders of Common Stock consists solely of Capital Stock, or similar equity
interests in, a Subsidiary or other business unit of the Company, which Capital
Stock or interests are, or will be upon completion of such distribution, listed on a



-39-









 






national securities exchange or quoted on an automated quotation system and closing
sale prices for such Capital Stock or interests are readily available (a
“Spin-Off”), then in lieu of adjusting the Conversion Rate in accordance with the
immediately preceding paragraph, the Conversion Rate shall be increased (subject to
the other terms of this Indenture) by multiplying the Conversion Rate in effect
immediately prior to the opening of business on the thirteenth (13th) Trading Day
following the record date for such distribution by a fraction (I) whose numerator is
the sum of (A) the average of the Closing Sale Prices per share of Common Stock for
the ten (10) consecutive Trading Days commencing on, and including, the third (3rd)
Trading Day after the record date for such distribution and (B) the product of (i)
the average of the Closing Sale Prices per share or unit, as applicable, of such
Capital Stock or interests (determined as if such shares or units were shares of
Common Stock for purposes of the definition of “Closing Sale Price”) for the ten
(10) consecutive Trading Days commencing on, and including, the third (3rd) Trading
Day after the record date for such distribution and (ii) number of shares or units,
as applicable, of such Capital Stock or interests distributed per share of Common
Stock; and (II) whose denominator is the average of the Closing Sale Prices per
share of Common Stock for the ten (10) consecutive Trading Days commencing on, and
including, the third (3rd) Trading Day after the record date for such distribution.
The average Closing Sale Prices referred to in the immediately preceding sentence
shall be subject to appropriate adjustments, in the Company’s good faith
determination, to account for other distributions, stock splits and combinations,
stock dividends, reclassifications and similar events. Each adjustment to the
Conversion Rate made pursuant to this paragraph shall become effective immediately
after the open of business on the thirteenth (13th) Trading Day following the record
date for such distribution.




Rights or warrants distributed by the Company to all holders of Common Stock
entitling the holders thereof to subscribe for or purchase shares of the Company’s
Capital Stock (either initially or under certain circumstances), which rights,
options or warrants, until the occurrence of a specified event or events (“Trigger
Event”): (i) are deemed to be transferred with such shares of Common Stock; (ii) are
not exercisable; and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this Section
8.06 (and no adjustment to the Conversion Rate under this Section 8.06 will be
required) until the occurrence of the earliest Trigger Event, whereupon such rights,
options and warrants shall be deemed to have been distributed and an appropriate
adjustment (if any is required) to the Conversion Rate shall be made under this
Section 8.06(c). In no event shall the Conversion Rate be decreased pursuant to
this Section 8.06(c).




     (d) In case the Company shall, by dividend or otherwise, at any time make a
distribution of cash (excluding any cash that is distributed as part of a
distribution requiring a Conversion Rate adjustment pursuant to Section 8.06(e)
hereof and excluding Regular Quarterly Cash Dividends, to the extent the aggregate
amount of such Regular Quarterly Cash Dividends in any quarterly period does not
exceed sixty-six cents ($0.66) per share of Common Stock (the



-40-









 






“Reference Dividend Amount”)) to all or substantially all holders of Common Stock, the Conversion Rate
shall be increased based on the following formula:




CR1 = CR0 x MP0 / (MP0 - C)




where




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




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




MP0 = the current market price per share of Common Stock (as determined
pursuant to Section 8.06(g) hereof) on the record date for the distribution;
and




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




The Reference Dividend Amount shall be subject to adjustment in a manner that is
inversely proportional to adjustments to the Conversion Rate; provided, however,
that no adjustments shall be made to the Reference Dividend Amount for any
adjustment made to the Conversion Rate pursuant to this Section 8.06(d).




Notwithstanding anything to the contrary in this Section 8.06(d), if an adjustment
to the Conversion Rate is required to be made as a result of a distribution that is
not a regular quarterly dividend either in whole or in part, the Reference Dividend
Amount shall be deemed to be zero for purposes of determining the adjustment to the
Conversion Rate as a result of such distribution.




The Conversion Rate shall not be adjusted pursuant to this Section 8.06(d) to the
extent, and only to the extent, such adjustment would cause the Conversion Price to
be less than the par value of the Common Stock; provided further that, if the
denominator of such fraction shall be equal to or less than zero, the Conversion
Rate shall be instead adjusted so that the Conversion Price is equal to the par
value of the Common Stock.




In no event shall the Conversion Rate be decreased pursuant to this Section 8.06(d).
An adjustment to the Conversion Rate pursuant to this Section 8.06(d) shall become
effective immediately prior to the open of business on the Ex Date for the
distribution. To the extent a Regular Quarterly Cash Dividend is paid in multiple
portions and the total of such portions exceeds $0.66, then the Conversion Rate in
respect of such Regular Quarterly Cash Dividend shall first be adjusted under this
Section 8.06(d) in respect of the first portion as a result of which such Regular
Quarterly Cash Dividend exceeds $0.66 (with the Excess Amount for purposes of such
adjustment being the amount by which such portion,



-41-









 






when aggregated with all previously paid portions in respect of such Regular Quarterly Cash Dividend, if any,
exceeds $0.66), and the Conversion Rate shall be further adjusted under this Section
8.06(d) in respect of each subsequent payment, if any, constituting a portion of
such Regular Quarterly Cash Dividend (with the amount of each such subsequent
portion being treated as the Excess Amount for purposes of determining the
adjustment in respect of such portion). Each such adjustment shall become effective
immediately prior to the open of business on the Ex Date in respect of the payment
resulting in such adjustment.




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




          An increase, if any, to the Conversion Rate pursuant to this Section 8.06(e)
shall become effective immediately prior to the opening of business on the Business
Day following the first Trading Day after the Expiration Date. In the event that
the Company or a Subsidiary is obligated to purchase shares of Common Stock pursuant
to any such tender offer or exchange offer, but the Company or such Subsidiary is
permanently prevented by applicable law from effecting any such purchases, or all
such purchases are rescinded, then the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such tender offer or exchange
offer had not been made. If the application of this Section 8.06(e) to any tender
offer or exchange offer would result in a decrease in the Conversion Rate, no
adjustment shall be made for such tender offer or exchange offer under this Section
8.06(e).



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




     (g) For the purpose of any computation under subsections (a), (b), (c) or (d)
above of this Section 8.06, the “current market price” per share of Common Stock on
any date shall be deemed to be the average of the Closing Sale Prices for the ten
(10) consecutive Trading Days ending on, but excluding, the earlier of such date and
the Ex Date with respect to the issuance or distribution requiring such computation;
provided, however, that such current market price per share of Common Stock shall be
appropriately adjusted by the Company, in its good faith determination, to account
for any adjustment, pursuant hereto, to the Conversion Rate that shall become
effective, or any event requiring, pursuant hereto, an adjustment to the Conversion
Rate where the Ex Date of such event occurs, at any time during the period that
begins on, and includes, the first day of such ten (10) consecutive Trading Days and
ends on, and includes, the date when the adjustment to the Conversion Rate on
account of the event requiring the computation of such current market price becomes
effective.




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



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



8.07 No Adjustment.




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



     No adjustment in the Conversion Rate pursuant to Section 8.06 hereof shall be required until
cumulative adjustments amount to one percent (1%) or more of the Conversion Rate as last adjusted
(or, if never adjusted, the initial Conversion Rate); provided, however, that any adjustments to
the Conversion Rate which by reason of this Section 8.07 are not required to be made shall be
carried forward and taken into account in any subsequent adjustment to the Conversion Rate;
provided further, that at the end of each fiscal year of the Company, beginning with the fiscal
year ending on December 31, 2007, any adjustments to the Conversion Rate that have been, and at
such time remain, deferred pursuant to this Section 8.07 shall be given effect, and such
adjustments, if any, shall no longer be carried forward and taken into account in any subsequent
adjustment to the Conversion Rate; provided further, that if the Company shall mail a notice of
Redemption pursuant to Section 3.04 hereof, or if a Fundamental Change or Make-Whole Fundamental
Change occurs, or if the Securities shall become convertible pursuant to Section 8.01(A)(iv) hereof
or Section 8.01(A)(v) hereof, then, in each case, any adjustments to the Conversion Rate that have
been, and at such time remain, deferred pursuant to this Section 8.07 shall be given effect, and
such adjustments, if any, shall no longer be carried forward and taken into account in any
subsequent adjustment to the Conversion Rate. All calculations under this Article VIII shall be
made to the nearest cent or to the nearest one-millionth of a share, as the case may be.



     Upon the expiration, termination or redemption of any rights, options or warrants issued by
the Company, and requiring an adjustment to the Conversion Rate in accordance with Section 8.06
hereof, without the exercise of such rights, options or warrants, the Conversion Rate then in
effect shall be adjusted immediately to the Conversion Rate which would have been in effect at the
time of such expiration, termination or redemption had such rights, options or warrants, to the
extent outstanding immediately prior to such expiration, termination or redemption, never been
issued. Notwithstanding anything herein or in the Securities to the contrary, if any rights,
options or warrants issued by the Company, and requiring an adjustment to the Conversion Rate in
accordance with Section 8.06 hereof, are only exercisable upon the occurrence of certain triggering
events, then the Conversion Rate will not be adjusted as provided in Section 8.06 until the
earliest of such triggering event occurs.



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     If any dividend or distribution is declared and the Conversion Rate is adjusted pursuant to
Section 8.06 hereof on account of such dividend or distribution, but such dividend or distribution
is thereafter not paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate
which would then be in effect had such dividend or distribution not been declared.



     No adjustment to the Conversion Rate need be made pursuant to Section 8.06 hereof for a
transaction if each Holder is to participate in the transaction, at substantially the same time
that holders of Common Stock participate in such transaction, without conversion as if such Holder
held a number of shares of Common Stock equal to a fraction whose numerator is the product of the
Conversion Rate in effect at the Ex Date or effective date, as applicable, of the transaction
(without giving effect to any adjustment pursuant to Section 8.06 hereof on account of such
transaction) and the aggregate principal amount of Securities held by such Holder and whose
denominator is one thousand (1,000).



8.08 Other Adjustments.




     In the event that, as a result of an adjustment made pursuant to Section 8.06 hereof, the
Holder of any Security thereafter surrendered for conversion shall become entitled to receive any
shares of Capital Stock other than shares of Common Stock, thereafter the Conversion Rate of such
other shares so receivable upon conversion of any Security shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect
to Common Stock contained in this Article VIII.



8.09 Adjustments for Tax Purposes.




     Except as prohibited by law the Company may (but is not obligated to) make such increases in
the Conversion Rate, in addition to those required by Section 8.06 hereof, as it determines to be
advisable in order that any stock dividend, subdivision of shares, distribution of rights to
purchase stock or securities or distribution of securities convertible into or exchangeable for
stock made by the Company or to its stockholders will not be taxable to the recipients thereof or
in order to diminish any such taxation.



8.10 Notice of Adjustment.




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




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8.11 Notice of Certain Transactions.




     In the event that:




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




     (2) the Company takes any action that would require a supplemental
indenture pursuant to Section 8.12 hereof, or




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


the Company shall mail to Holders at the addresses appearing on the Registrar’s books and the
Trustee a written notice stating the proposed record, effective or expiration date, as the case may
be, of any transaction referred to in clause (1), (2) or (3) of this Section 8.11. The Company
shall mail such notice at least twenty (20) calendar days before such date; however, failure to
mail such notice or any defect therein shall not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 8.11.



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




     If any of the following shall occur, namely: (i) any reclassification or change in the Common
Stock issuable upon conversion of Securities (other than a change only in par value, or from par
value to no par value, or from no par value to par value, or as a result of a subdivision or
combination of Common Stock), (ii) any consolidation, amalgamation, statutory arrangement, merger
or binding share exchange to which the Company is a party other than a merger in which the Company
is the continuing Person and which does not result in any reclassification of, or change (other
than a change in name, or par value, or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination) in, the Common Stock or (iii) any sale,
transfer, lease, conveyance or other disposition of all or substantially all of the property or
assets of the Company, in each case pursuant to which the Common Stock would be converted into or
exchanged for, or would constitute solely the right to receive, cash, securities or other property,
then the Company or such successor or purchasing Person, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee
providing that, at and after the effective time of such reclassification, change, consolidation,
amalgamation, statutory arrangement, merger, binding share exchange, sale, transfer, lease,
conveyance or disposition, the Holder of each Security then outstanding shall have the right to
convert such Security (if otherwise convertible pursuant to this Article VIII) into the kind and
amount of cash, securities or other property (collectively, “Reference Property”) receivable upon
such reclassification, change, consolidation, amalgamation, statutory arrangement, merger, binding
share exchange, sale, transfer, lease, conveyance or disposition by a holder of a number of shares
of Common Stock equal to a fraction whose denominator is one thousand (1,000) and whose numerator
is the product of the principal amount of such Security and the Conversion Rate in effect
immediately prior to such reclassification, change, consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale,



-46-









 




transfer, lease, conveyance or disposition (assuming, if holders of Common Stock shall have
the opportunity to elect the form of consideration to receive pursuant to such reclassification,
change, consolidation, amalgamation, statutory arrangement, merger, binding share exchange, sale,
transfer, lease, conveyance or disposition, that the Collective Election shall have been made with
respect to such election); provided, however, that at and after the effective time of such
reclassification, change, consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition, the Principal Return payable hereunder
upon conversion of such Security shall continue to be payable in cash and the Daily Conversion
Value and Daily Net Shares shall be calculated based on the value of the Reference Property instead
of the Volume-Weighted Average Price per share of Common Stock; provided further, that if any
portion of such Reference Property consists of common stock listed on a national securities
exchange or quoted on an automated quotation system, then the “value” of such portion of such
Reference Property shall be determined on the basis of the Volume Weighted Average Price of such
common stock (determined as if such common stock were Common Stock for purposes of the definition
of “Volume Weighted Average Price” and as if the issuer of such common stock were the Company for
purposes of the definition of “Trading Day”).




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



     The supplemental indenture referred to in the first sentence of this Section 8.12 shall
provide for adjustments of the Conversion Rate which shall be as nearly equivalent as may be
practicable to the adjustments of the Conversion Rate provided for in this Article VIII. The
foregoing, however, shall not in any way affect the right a Holder of a Security may otherwise



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have, pursuant to Section 8.06(b) hereof or Section 8.14 hereof, to receive rights or warrants
upon conversion of a Security. If, in the case of any such consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, the
stock or other securities and property (including cash) receivable thereupon by a holder of Common
Stock includes shares of stock or other securities and property of a Person other than the
successor or purchasing Person, as the case may be, in such consolidation, amalgamation, statutory
arrangement, merger, binding share exchange, sale, transfer, lease, conveyance or disposition, then
such supplemental indenture shall also be executed by such other Person and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board in
good faith shall reasonably determine necessary by reason of the foregoing (which determination
shall be described in a Board Resolution). The provisions of this Section 8.12 shall similarly
apply to successive consolidations, amalgamations, statutory arrangements, mergers, binding share
exchanges, sales, transfers, leases, conveyances or dispositions.




     In the event the Company shall execute a supplemental indenture pursuant to this Section 8.12,
the Company shall promptly file with the Trustee an Officers’ Certificate briefly stating the
reasons therefor, the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, amalgamation, statutory arrangement, merger, binding share
exchange, sale, transfer, lease, conveyance or disposition and any adjustment to be made with
respect thereto.


8.13 Trustee’s Disclaimer.




     The Trustee has no duty to determine when an adjustment under this Article VIII should be
made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of the correctness of any such adjustment, and shall be protected in relying upon, the
Officers’ Certificate with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 8.10 hereof. The Trustee makes no representation as to the validity or value
of any securities or assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the failure by the Company to comply with any provisions of this Article VIII.



     The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 8.12 hereof, but
may accept as conclusive evidence of the correctness thereof, and shall be protected in relying
upon, the Officers’ Certificate with respect thereto which the Company is obligated to file with
the Trustee pursuant to Section 8.12 hereof.


8.14 Rights Distributions Pursuant to Stockholders’ Rights Plans.




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



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provision need be made if the rights have been separated from the Common Stock prior to the
time of such conversion, but the provisions of Section 8.06(c) hereof shall apply.



8.15 Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection
With Make-Whole Fundamental Changes.




     (A) Notwithstanding anything herein to the contrary, the Conversion Rate applicable to each
Security that is surrendered for conversion, in accordance with this Article VIII, at any time
during the period (the “Make-Whole Conversion Period”) that begins on, and includes, the date that
is thirty (30) calendar days prior to the date originally announced by the Company as the
anticipated effective date of a Make-Whole Fundamental Change (which anticipated effective date the
Company shall disclose, in good faith, in the written notice and public announcement referred to in
Section 8.15(D) hereof) and ends on, and includes, the date that is forty (40) Business Days after
the actual effective date of such Make-Whole Fundamental Change (or, if such Make-Whole Fundamental
Change also constitutes a Fundamental Change, the Fundamental Change Repurchase Date applicable to
such Fundamental Change) shall be increased to an amount equal to the Conversion Rate that would,
but for this Section 8.15, otherwise apply to such Security pursuant to this Article VIII, plus an
amount equal to the Make-Whole Applicable Increase; provided, however, that such increase to the
Conversion Rate shall not apply if such Make-Whole Fundamental Change is announced by the Company
but shall not be consummated.



          The additional consideration payable hereunder on account of any Make-Whole Applicable
Increase with respect to a Security surrendered for conversion is herein referred to as the
“Make-Whole Consideration.” For avoidance of doubt, the amount of the Make-Whole Consideration due
upon the conversion of a Security shall be based on the Cash Settlement Averaging Period and
Volume-Weighted Average Prices applicable to such conversion pursuant to Section 8.02 hereof.




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




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



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	 	 	Effective Date
	Applicable Price	 	July 20, 2007	 	July 15, 2008	 	July 15, 2009	 	July 15, 2010	 	July 15, 2011	 	July 15, 2012
	 
	$40.40
	 	 	4.7525	 	 	 	4.7525	 	 	 	4.7525	 	 	 	4.7525	 	 	 	4.7525	 	 	 	4.7525	 
	$45.00
	 	 	2.9244	 	 	 	2.9058	 	 	 	2.8178	 	 	 	2.6958	 	 	 	2.4877	 	 	 	2.2222	 
	$50.00
	 	 	1.7354	 	 	 	1.6869	 	 	 	1.5717	 	 	 	1.4049	 	 	 	1.1103	 	 	 	0.0000	 
	$55.00
	 	 	0.9790	 	 	 	0.9249	 	 	 	0.8160	 	 	 	0.6620	 	 	 	0.4106	 	 	 	0.0000	 
	$60.00
	 	 	0.5133	 	 	 	0.4680	 	 	 	0.3832	 	 	 	0.2714	 	 	 	0.1180	 	 	 	0.0000	 
	$65.00
	 	 	0.2398	 	 	 	0.2096	 	 	 	0.1544	 	 	 	0.0901	 	 	 	0.0340	 	 	 	0.0000	 
	$70.00
	 	 	0.0915	 	 	 	0.0772	 	 	 	0.0503	 	 	 	0.0310	 	 	 	0.0257	 	 	 	0.0000	 
	$75.00
	 	 	0.0287	 	 	 	0.0287	 	 	 	0.0243	 	 	 	0.0239	 	 	 	0.0237	 	 	 	0.0000	 
	$80.00
	 	 	0.0222	 	 	 	0.0222	 	 	 	0.0221	 	 	 	0.0220	 	 	 	0.0220	 	 	 	0.0000	 
	$85.00
	 	 	0.0206	 	 	 	0.0206	 	 	 	0.0206	 	 	 	0.0206	 	 	 	0.0206	 	 	 	0.0000	 
	$90.00
	 	 	0.0193	 	 	 	0.0193	 	 	 	0.0193	 	 	 	0.0193	 	 	 	0.0193	 	 	 	0.0000	 
	$95.00
	 	 	0.0181	 	 	 	0.0181	 	 	 	0.0181	 	 	 	0.0181	 	 	 	0.0181	 	 	 	0.0000	 
	$100.00
	 	 	0.0171	 	 	 	0.0171	 	 	 	0.0171	 	 	 	0.0171	 	 	 	0.0171	 	 	 	0.0000	 
	$105.00
	 	 	0.0162	 	 	 	0.0162	 	 	 	0.0162	 	 	 	0.0162	 	 	 	0.0162	 	 	 	0.0000	 
	$110.00
	 	 	0.0153	 	 	 	0.0153	 	 	 	0.0153	 	 	 	0.0153	 	 	 	0.0153	 	 	 	0.0000	 
	$115.00
	 	 	0.0145	 	 	 	0.0145	 	 	 	0.0145	 	 	 	0.0145	 	 	 	0.0145	 	 	 	0.0000	 
	$120.00
	 	 	0.0138	 	 	 	0.0138	 	 	 	0.0138	 	 	 	0.0138	 	 	 	0.0138	 	 	 	0.0000	 






provided, however, that:





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




     (ii) if the actual Applicable Price of such Make-Whole Fundamental Change is greater
than $120.00 per share (subject to adjustment as provided in Section 8.15(B)(iii)), or if
the actual Applicable Price of such Make-Whole Fundamental Change is less than $40.40 per
share (subject to adjustment as provided in Section 8.15(B)(iii)), then the Make-Whole
Applicable Increase shall be equal to zero (0);




     (iii) if an event occurs that requires, pursuant to this Article VIII (other than
solely pursuant to this Section 8.15), an adjustment to the Conversion Rate, then, on the
date and at the time such adjustment is so required to be made, each price set forth in
the table above under the column titled “Applicable Price” shall be deemed to be adjusted
so that such price, at and after such time, shall be equal to the product of (1) such
price as in effect immediately before such adjustment to such price and (2) a fraction
whose numerator is the Conversion Rate in effect immediately before such adjustment to
the Conversion Rate and whose denominator is the Conversion Rate to be in effect, in
accordance with this Article VIII, immediately after such adjustment to the Conversion
Rate;




     (iv) each Make-Whole Applicable Increase amount set forth in the table above shall
be adjusted in the same manner in which, and for the same events for



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which, the Conversion Rate is to be adjusted pursuant to Section 8.06 through
Section 8.14 hereof; and




     (v) in no event shall the Conversion Rate applicable to any Security be increased
pursuant to this Section 8.15 to the extent, but only to the extent, such increase shall
cause the Conversion Rate applicable to such Security to exceed 24.7525 shares per $1,000
principal amount (the “BCF Make-Whole Cap”); provided, however, that the BCF Make-Whole
Cap shall be adjusted in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to this Article VIII.



     (C) As used herein, “Applicable Price” shall have the following meaning with respect to a
Make-Whole Fundamental Change: (a) if such Make-Whole Fundamental Change constitutes a Common Stock
Change Make-Whole Fundamental Change and the consideration (excluding cash payments for fractional
shares or pursuant to statutory appraisal rights) for the Common Stock in such Make-Whole
Fundamental Change consists solely of cash, then the “Applicable Price” with respect to such
Make-Whole Fundamental Change shall be equal to the cash amount paid per share of Common Stock in
such Make-Whole Fundamental Change; (b) if such Make-Whole Fundamental Change constitutes an Asset
Sale Make-Whole Fundamental Change and the consideration paid for the property and assets of the
Company consists solely of cash, then the “Applicable Price” with respect to such Make-Whole
Fundamental Change shall be equal to the cash amount paid for the property and assets of the
Company, expressed as an amount per share of Common Stock outstanding on the Effective Date of such
Make-Whole Fundamental Change; and (c) in all other circumstances, the “Applicable Price” with
respect to such Make-Whole Fundamental Change shall be equal to the average of the Closing Sale
Prices per share of Common Stock for the five (5) consecutive Trading Days immediately preceding
the Effective Date of such Make-Whole Fundamental Change, which average shall be appropriately
adjusted by the Company, in its good faith determination, to account for any adjustment, pursuant
hereto, to the Conversion Rate that shall become effective, or any event requiring, pursuant
hereto, an adjustment to the Conversion Rate where the Ex Date of such event occurs, at any time
during such five (5) consecutive Trading Days.



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



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     (E) For avoidance of doubt, the provisions of this Section 8.15 shall not affect or diminish
the Company’s obligations, if any, pursuant to Article Ten of the Base Indenture and Article IV
hereof with respect to a Make-Whole Fundamental Change.



     (F) Nothing in this Section 8.15 shall prevent an adjustment to the Conversion Rate pursuant
to Section 8.06 hereof in respect of a Make-Whole Fundamental Change.


8.16 Ownership Limit. 



Notwithstanding any other provision of this Indenture or the Securities, no Holder shall be
entitled to convert such Securities for shares of Common Stock to the extent that receipt of such
shares would cause such Holder (together with such Holder’s Affiliates) to exceed the applicable
ownership limit contained in the Company’s by-laws (with respect to the Common Stock and the
Company’s preferred stock) and the Company’s certificates of designation (with respect to the
Company’s preferred stock).




IX. NO DEFEASANCE OR COVENANT DEFEASANCE



The defeasance and covenant defeasance provisions of Article Thirteen of the Base Indenture shall
not apply to the Securities.




X. MISCELLANEOUS



10.01 Governing Law.




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


10.02 No Adverse Interpretation of Other Agreements.




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


10.03 Successors.




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


10.04 Calculations in Respect of the Securities.




     The Company and its agents (including, without limitation, the Bid Solicitation Agent) shall
make all calculations under this Indenture and the Securities in good faith. In the absence of
manifest error, such calculations shall be final and binding on all Holders. The Company shall
provide a copy of such calculations to the Trustee as required hereunder, and, absent such manifest
error, the Trustee shall be entitled to conclusively rely on the accuracy of any such calculation
without independent verification.



-52-









 




10.05 Trustee’s Disclaimer.




     The Trustee makes no representations as to the validity or sufficiency of the Supplemental
Indenture except as to the due authorization, execution and delivery of the Supplemental Indenture
by the Trustee. The recitals and statements herein are deemed to be those of the Company and not
of the Trustee.



[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]




-53-









 








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



	 	 	 	 	 
	 	HEALTH CARE REIT, INC.

 	 
	 	By:  	/s/ George L. Chapman
 	 
	 	 	Name:  	George L. Chapman 	 
	 	 	Title:  	Chairman and Chief Executive Officer 	 



 









 






	 	 	 	 	 
	 	THE BANK OF NEW YORK TRUST COMPANY, 

N.A., as Trustee

 	 
	 	By:  	/s/ Theresa Crawford
 	 
	 	 	Name:  	Theresa Crawford 	 
	 	 	Title:  	Assistant Treasurer 	 



-2-









 






	 	 	 	 	 



EXHIBIT A




[Face of Security]




HEALTH CARE REIT, INC.




Certificate No. _______




[INSERT GLOBAL SECURITY LEGEND AS REQUIRED]




4.75% Convertible Senior Note due 2027




CUSIP No. 42217K AQ9





     Health Care REIT, Inc., a Delaware corporation (the “Company”), for value received, hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of
                                         dollars ($                    ) on July 15, 2027 and to pay interest thereon, as
provided on the reverse hereof, until the principal and any unpaid and accrued interest are paid or
duly provided for.



     Interest Payment Dates: January 15 and July 15, with the first payment to be made on January
15, 2008.



     Record Dates: January 1 and July 1.



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



     IN WITNESS WHEREOF, Health Care REIT, Inc. has caused this instrument to be duly signed.



	 	 	 	 	 
	 	Health Care REIT, Inc.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated: ________________




 









 








TRUSTEE’S CERTIFICATE OF AUTHENTICATION




This is one of the Securities referred to

in the within-mentioned Indenture.




	 	 	 	 	 
	The Bank of New York Trust Company, N.A., as Trustee

 	 	 
	By:  	 	 	 
	 	Authorized Signatory 	 	 



Dated: __________________





A-2 









 





[REVERSE OF SECURITY]




HEALTH CARE REIT, INC.




4.75% Convertible Senior Note due 2027




     1. Interest. Health Care REIT, Inc., a Delaware corporation (the “Company”), promises to pay
interest on the principal amount of this Security at the rate per annum shown above. The Company
will pay interest, payable semi-annually in arrears, on January 15 and July 15 of each year, with
the first payment to be made on January 15, 2008. Interest on the Securities will accrue on the
principal amount from, and including, the most recent date to which interest has been paid or
provided for or, if no interest has been paid, from, and including, July 20, 2007, in each case to,
but excluding, the next interest payment date or Maturity Date, as the case may be. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.



     2. Maturity. The Securities will mature on July 15, 2027.



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



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



     5. Indenture. The Company issued the Securities under a base indenture, dated as of November
20, 2006 (the “Base Indenture”) as amended, supplemented or otherwise modified by Supplemental
Indenture No. 2, dated as of July 20, 2007 (the “Supplemental Indenture” and, together with the
Base Indenture, the “Indenture”) between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture and those made part



A-3









 







of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb) (the “Trust Indenture Act”) as amended and in effect from time to time. The
Securities are subject to all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of such terms. The Securities are general unsecured senior
obligations of the Company limited to $400,000,000 aggregate principal amount ($460,000,000 if the
Underwriters have elected to exercise in full the Option to purchase up to an additional
$60,000,000 aggregate principal amount of the Securities), except as otherwise provided in the
Indenture (except for reopening of the Securities pursuant to the Indenture or Securities issued in
substitution for destroyed, mutilated, lost or stolen Securities). Terms used herein without
definition and which are defined in the Indenture have the meanings assigned to them in the
Indenture.



     6. Optional Redemption.



          The Company shall not have the right to redeem any Securities prior to July 15, 2012, except
to preserve the Company’s status as a real estate investment trust. If, at any time, the Company
determines that it is necessary to redeem the Securities in order to preserve the Company’s status
as a real estate investment trust, the Company may redeem all or any part of the Securities at a
price payable in cash equal to the Redemption Price plus accrued and unpaid interest, if any, to,
but excluding, the Redemption Date.



          The Company shall have the right, at the Company’s option, at any time, and from time to time,
on a Redemption Date on or after July 15, 2012, to redeem all or any part of the Securities at a
price payable in cash equal to one hundred percent (100%) of the principal amount of the Securities
to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the Redemption Date.



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



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



     8. Purchase by the Company at the Option of the Holder. Subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase, at the option of each Holder, the
Securities held by such Holder on July 15, 2012, July 15, 2017 and July 15, 2022 (each, an “Option
Purchase Date”) at an Option Purchase Price, payable in cash, equal to one hundred percent (100%)
of the principal amount of the Securities to be purchased, plus



A-4









 







accrued and unpaid interest, if any, to, but excluding, the applicable Option Purchase Date,
upon delivery of a Purchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is twenty (20) Business Days prior to the
applicable Option Purchase Date until the close of business on the Business Day immediately
preceding the applicable Option Purchase Date and upon delivery of the Securities to the Paying
Agent by the Holder as set forth in the Indenture; provided, however, that such accrued and unpaid
interest shall be paid to the Holder of record of such Securities at the close of business on the
record date immediately preceding such Option Purchase Date.



     9. Repurchase at Option of Holder Upon a Fundamental Change. Subject to the terms and
conditions of the Indenture, in the event of a Fundamental Change, each Holder of the Securities
shall have the right, at the Holder’s option, to require the Company to repurchase such Holder’s
Securities including any portion thereof which is $1,000 in principal amount or any integral
multiple thereof on a date selected by the Company (the “Fundamental Change Repurchase Date”),
which date is no later than thirty five (35) days, nor earlier than twenty (20) days, after the
date on which notice of such Fundamental Change is mailed in accordance with the Indenture, at a
price payable in cash equal to one hundred percent (100%) of the principal amount of such Security,
plus accrued and unpaid interest to, but excluding, the Fundamental Change Repurchase Date;
provided, however, that if such Fundamental Change Repurchase Date is after a record date for the
payment of an installment of interest and on or before the related interest payment date, then the
accrued and unpaid interest, if any, to, but excluding, such interest payment date will be paid on
such interest payment date to the Holder of record of such Securities at the close of business on
such record date, and the Holder surrendering such Securities for repurchase will not be entitled
to any such accrued and unpaid interest unless such Holder was also the Holder of record of such
Securities at the close of business on such record date.



     10. Conversion.



          The Securities shall be convertible into cash, and if applicable, shares of Common Stock if
and to the extent the conditions therefor specified the Indenture are satisfied.



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



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



          Upon conversion of a Security, the Holder thereof shall be entitled to receive the cash and,
if applicable, shares of Common Stock payable upon conversion in accordance with Article VIII of
the Supplemental Indenture.



A-5









 





          The initial Conversion Rate is 20.0000 shares of Common Stock per $1,000 principal amount of
Securities (which results in an effective initial Conversion Price of $50.00 per share) subject to
adjustment in the event of certain circumstances as specified in the Indenture. The Company will
deliver cash in lieu of any fractional share. On conversion, no payment or adjustment for any
unpaid and accrued interest or additional interest on the Securities will be made. If a Holder
surrenders a Security for conversion after the close of business on the record date for the payment
of an installment of interest and prior to the related interest payment date, such Security, when
surrendered for conversion, must be accompanied by payment of an amount equal to the interest
thereon which the registered Holder at the close of business on such record date is to receive;
provided, however, that such payment of an amount equal to the interest described in the
immediately preceding sentence in respect of a Security surrendered for conversion shall not be
required with respect to a Security that (i) is surrendered for conversion after the record date
immediately preceding the Maturity Date, (ii) has been called for Redemption pursuant to Section
3.04 of the Supplemental Indenture and paragraphs 6 and 7 herein or (iii) is surrendered for
conversion after a record date for the payment of an installment of interest and on or before the
related interest payment date, where, pursuant to Section 3.09 of the Supplemental Indenture, the
Company has specified, with respect to a Fundamental Change, a Fundamental Change Repurchase Date
that is after such record date and on or before such interest payment date; provided further, that,
if the Company shall have, prior to the Conversion Date with respect to a Security, defaulted in a
payment of interest on such Security, then in no event shall the Holder of such Security who
surrenders such Security for conversion be required to pay such defaulted interest or the interest
that shall have accrued on such defaulted interest pursuant to Section 307 of the Base Indenture or
otherwise.



          The Conversion Rate applicable to each Security that is surrendered for conversion, in
accordance with the Securities and Article VIII of the Supplemental Indenture, at any time during
the Make-Whole Conversion Period with respect to a Make-Whole Fundamental Change shall be increased
to an amount equal to the Conversion Rate that would, but for Section 8.15 of the Supplemental
Indenture, otherwise apply to such Security pursuant to Article VIII of the Supplemental Indenture,
plus an amount equal to the Make-Whole Applicable Increase; provided, however, that such increase
to the Conversion Rate shall not apply if such Make-Whole Fundamental Change is announced by the
Company but shall not be consummated.



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



A-6









 







of the Supplemental Indenture, Securities to be redeemed or (iii) that has been selected for
Redemption or for which a Purchase Notice has been delivered, and not withdrawn, in accordance with
the Indenture, except the unredeemed or unrepurchased portion of Securities being redeemed or
repurchased in part.



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



     13. Consolidation, Merger, Conveyance, Transfer or Lease. The Company shall not consolidate
with or merge with or into any other Person, or sell, transfer, lease, convey, or otherwise dispose
of all or substantially all of its properties and assets to any Person (including pursuant to a
statutory arrangement), whether in a single transaction or series of related transactions unless
(i) such Person assumes by supplemental indenture all the obligations of the Company under the
Securities and the Indenture; (ii) immediately after giving effect to such transaction or series of
transactions, no Default or Event of Default shall exist; and (iii) the Person formed by such
consolidation, the Person with or into which the Company is merged or the Person which leases or
acquires, by sale, transfer, conveyance or otherwise, all or substantially all of the property or
assets of the Company, is a corporation, partnership, limited liability company or trust organized
and existing under the laws of the United States, any state of the United States or the District of
Columbia. The Company shall deliver to the Trustee prior to the consummation of the proposed
transaction an Officers’ Certificate and an Opinion of Counsel, each stating that such proposed
transaction and, if a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with Article Eight of the Base Indenture and that all conditions
precedent provided for in the Indenture relating to such transaction have been complied with.



     14. Amendments, Supplements and Waivers. Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities, and certain existing Defaults or Events
of Default may be waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. The Company, with the consent of the Trustee, may amend
or supplement this Indenture or the Securities without notice to or the consent of any
Securityholder in accordance with Section 901 of the Base Indenture and Section 7.01 of the
Supplemental Indenture.



     15. Defaults and Remedies.



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



A-7









 







Default specified in Section 5.01(viii) or (ix) of the Supplemental Indenture solely with respect
to a Significant Subsidiary of the Company) occurs, the principal of, and premium and accrued and
unpaid interest on, all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder. The Holders of a
majority in aggregate principal amount of the Securities then outstanding by written notice to the
Trustee may rescind or annul an acceleration and its consequences if (A) the rescission would not
conflict with any order or decree, (B) all existing Events of Default, except the nonpayment of
principal, premium or interest that has become due solely because of the acceleration, have been
cured or waived and (C) all amounts due to the Trustee under Section 607 of the Base Indenture have
been paid.



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



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



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



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



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



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



A-8









 





Health Care REIT, Inc.

One SeaGate, Suite 1500
Toledo, Ohio, 43604
Attn: General Counsel



A-9









 





[FORM OF ASSIGNMENT]




	 	 	 	 	 
	I or we assign to	 	 
	PLEASE INSERT SOCIAL SECURITY OR OTHER 

IDENTIFYING NUMBER	 	 
	 	 	 
	 
	(please print or type name and address)	 	 
	 
	 
	the within Security and all rights thereunder, and hereby irrevocably constitute and appoint
	 
	Attorney to transfer the Security on the books of the Company with full power of substitution in
the premises.
	Dated:
	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	NOTICE: The signature on this assignment
must correspond with the name as it appears
upon the face of the within Security in every
particular without alteration or enlargement
or any change whatsoever and be guaranteed by
a guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Registrar.






	 	 	 
	Signature Guarantee:

	 	 
	 	 	 





A-10









 






CONVERSION NOTICE



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



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



$                                        



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



 

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



 




 




 




 

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



 





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






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






A-11









 






PURCHASE NOTICE


Certificate No. of Security:                                         




     If you want to elect to have this Security purchased by the Company pursuant to Section 3.08
of the Supplemental Indenture, check the box: o



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



     If you want to elect to have only part of this Security purchased by the Company pursuant to
Sections 3.08 or 3.09 of the Supplemental Indenture, as applicable, state the principal amount to
be so purchased by the Company:



$                                                            

(in an integral multiple of $1,000)




	 	 	 	 	 	 	 	 	 
	Date:

	 	 	 	 	 	Signature(s):	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	(Sign exactly as your name(s) appear(s) on the
other side of this Security)
	Signature(s) guaranteed by:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	(All signatures must be guaranteed by a
guarantor institution participating in the
Securities Transfer Agents Medallion Program
or in such other guarantee program acceptable
to the Trustee.)







A-12









 





SCHEDULE A




SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY1




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




	 	 	 
	 	 	 	 	 	 	 	 	 	 	Principal amount of	 	 	Signature or
	 	 	 	 	Amount of decrease	 	 	Amount of Increase	 	 	this Global	 	 	authorized
	 	 	 	 	in Principal amount	 	 	in Principal amount	 	 	Security following	 	 	signatory of
	 	 	 	 	of this Global	 	 	of this Global	 	 	such decrease	 	 	Trustee or Note
	Date of Exchange	 	 	Security	 	 	Security	 	 	or increase	 	 	Custodian






 




			
	1	 	This is included in Global Securities only.



A-13









 





EXHIBIT B




FORM OF LEGEND FOR GLOBAL SECURITY




     Any Global Security authenticated and delivered hereunder shall bear a legend (which would be
in addition to any other legends required) in substantially the following form:




     THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE
OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.




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




     TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.05 OF THE
SUPPLEMENTAL INDENTURE.