exv4w12



 






Exhibit 4.12














CAPITAL AUTOMOTIVE REIT,




as Issuer




and




WELLS FARGO BANK, NATIONAL ASSOCIATION,




as Trustee




SECOND SUPPLEMENTAL TRUST INDENTURE




Dated as of May 12, 2004




Providing for Issuance of




6% CONVERTIBLE NOTES DUE MAY 15, 2024

















 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page

	ARTICLE I DEFINED TERMS
	 	 	1	 
	ARTICLE II DESCRIPTION OF CONVERTIBLE NOTES
	 	 	6	 
	SECTION 2.1 Establishment.
	 	 	6	 
	SECTION 2.2 Payment of Principal and Interest.
	 	 	7	 
	SECTION 2.3 Global Securities.
	 	 	8	 
	SECTION 2.4 Transfer.
	 	 	9	 
	SECTION 2.5 Denominations.
	 	 	9	 
	SECTION 2.6 Ranking.
	 	 	9	 
	SECTION 2.7 Defeasance
	 	 	9	 
	SECTION 2.8 Additional Events of Default; Amendments.
	 	 	9	 
	ARTICLE III REDEMPTION
	 	 	10	 
	SECTION 3.1 Optional Redemption.
	 	 	10	 
	SECTION 3.2 Notice of Redemption.
	 	 	10	 
	SECTION 3.3 Purchase of Convertible Notes at the Option of the Holder.
	 	 	11	 
	SECTION 3.4 Purchase of Convertible Notes at Option of the Holder upon a Change in Control.
	 	 	15	 
	SECTION 3.5 Effect of Purchase Notice or Change in Control Purchase Notice.
	 	 	17	 
	SECTION 3.6 Covenant to Comply With Securities Laws Upon Purchase of Convertible Notes.
	 	 	18	 
	SECTION 3.7 Repayment to the Company.
	 	 	19	 
	ARTICLE IV CONVERSION OF CONVERTIBLE NOTES
	 	 	19	 
	SECTION 4.1 Conversion of Convertible Notes.
	 	 	19	 
	SECTION 4.2 Adjustment of Conversion Rate.
	 	 	23	 
	SECTION 4.3 When Adjustment May Be Deferred.
	 	 	27	 
	SECTION 4.4 When No Adjustment Required.
	 	 	27	 
	SECTION 4.5 Notice of Adjustment.
	 	 	27	 
	SECTION 4.6 Voluntary Increase.
	 	 	28	 
	SECTION 4.7 Notice of Certain Transactions.
	 	 	28	 
	SECTION 4.8 Reorganization of the Company; Special Distributions.
	 	 	28	 
	SECTION 4.9 Company Determination Final.
	 	 	29	 
	SECTION 4.10 Trustee’s Adjustment Disclaimer.
	 	 	29	 
	SECTION 4.11 Simultaneous Adjustments.
	 	 	30	 
	SECTION 4.12 Successive Adjustments.
	 	 	30	 
	SECTION 4.13 Savings Provisions.
	 	 	30	 
	ARTICLE V COVENANTS
	 	 	30	 
	SECTION 5.1 Restriction on Subsidiary Indebtedness and Preferred Stock.
	 	 	30	 
	SECTION 5.2 Provision of Financial Information.
	 	 	31	 
	ARTICLE VI MISCELLANEOUS PROVISIONS
	 	 	31	 
	SECTION 6.1 Ratification and Incorporation of Base Indenture.
	 	 	31	 
	SECTION 6.2 Governing Law.
	 	 	31	 
	SECTION 6.3 Counterparts.
	 	 	31	 
	SECTION 6.4 Entire Agreement.
	 	 	32	 







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     THIS SECOND SUPPLEMENTAL TRUST INDENTURE is made as of this 12th day of
May, 2004 (the “Supplemental Indenture”), by and between Capital
Automotive REIT, a real estate investment trust organized under the laws of the
State of Maryland, as issuer (the “Company”), and Wells Fargo Bank,
National Association, a national banking association organized under the laws
of the United States of America, as trustee (the “Trustee”).



RECITALS OF THE COMPANY




     WHEREAS, the Company has heretofore entered into a Base Indenture with the
Trustee, dated as of April 15, 2004 (the “Base Indenture”), providing
for the issuance from time to time of unsubordinated debentures, notes or other
evidences of indebtedness in series;



     WHEREAS, the Base Indenture is incorporated herein by this reference and
the Base Indenture, as supplemented by this Second Supplemental Indenture, is
herein called the “Indenture;”



     WHEREAS, under the Base Indenture, the Board of Directors of the Company
may at any time establish a new series of Securities, in accordance with the
provisions of the Base Indenture, with the terms of such series established
pursuant to a supplemental indenture executed by the Company and the Trustee;



     WHEREAS, the Company proposes to create under the Base Indenture a new
series of Securities;



     WHEREAS, the Company desires to issue $110,000,000 of its 6% Convertible
Notes due May 15, 2024, having the terms and conditions hereinafter set forth,
primarily in order to pay down or eliminate existing Indebtedness and pursue
other general corporate purposes;



     WHEREAS, all conditions necessary to authorize the execution and delivery
of this Supplemental Indenture and to make it a valid and binding obligation of
the Company have been done or performed;



     NOW THEREFORE, for and in consideration of the agreements and obligations
set forth herein and for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:



ARTICLE I




DEFINED TERMS




     The following defined terms used herein shall, unless the context
otherwise requires, have the meanings specified below. Capitalized terms used
and not otherwise defined herein shall have the respective meanings given them
in the Base Indenture:



 









 





     “Accounting Event” shall be deemed to occur if (a) the
authoritative guidance promulgated by the Financial Accounting Standards Board,
the Commission, or other national accounting standard setters permits the
settlement of an issuer’s obligation to repurchase securities at the option of
the holder thereof in the issuer’s Capital Stock and expressly provides that
such shares issuable in satisfaction of such repurchase obligation shall not be
taken into account for purposes of computing the issuer’s diluted earnings per
share (unless and until such shares are actually issued) and such guidance
remains in effect, or (b) the Company receives advice from a nationally
recognized accounting firm that such settlement and accounting treatment are
permitted.



     “Capital Stock” of any Person means any and all shares (including
ordinary shares or American Depositary Shares), interests, participations, or
other equivalents, however designated, of corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person and any rights (other than debt securities convertible or
exchangeable into an equity interest), warrants or options to acquire an equity
interest in such Person.



     “Change in Control” will be deemed to have occurred at the time
after Original Issue Date that any of the following occurs:




     (a) any “person” or “group” within the meaning of Sections 13(d) or
14(d)(2) of the Exchange Act, including the Company’s affiliates, other
than the Company, its Subsidiaries or its or their employee benefit
plans, files a Schedule 13D or Schedule TO or any successor schedule,
form or report under the Exchange Act disclosing that such person or
group has become the “beneficial owner,” as defined in Rule 13d-3 under
the Exchange Act, of greater than 50% of the voting power of the Common
Shares or other Capital Stock into which the Common Shares may be
reclassified or sold; provided, however, that a person shall not be
deemed a beneficial owner of, or to own beneficially, (i) any securities
tendered pursuant to a tender or exchange offer made by or on behalf of
such person or any of such person’s Affiliates until such tendered
securities are accepted for purchase or exchange thereunder or (ii) any
securities if such beneficial ownership (A) arises solely as a result of
a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to the applicable rules and regulations under
the Exchange Act and (B) is not also then reportable on Schedule 13D or
any successor schedule under the Exchange Act; or




     (b) consummation of any share exchange, consolidation or merger of
the Company pursuant to which the Common Shares will be converted into
cash, securities or other property in each case other than a share
exchange, consideration, or merger of the Company in which the holders of
the Company’s Common Shares immediately prior to such transaction have,
directly or indirectly, at least a majority of the total voting power in
aggregate of all classes of Capital Stock of the continuing or surviving
Company immediately after such transaction.



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A Change in Control will not be deemed to have occurred in respect of either of
the foregoing, however, if either:




     (i) the average of the Closing Prices of the Common Shares for the
five consecutive Trading Days ending immediately before the later of the
Change in Control or the public announcement thereof, equals or exceeds
105% of the Conversion Price of the Convertible Notes immediately before
the Change in Control or the public announcement thereof, or




     (ii) at least 90% of the consideration in the transaction or
transactions constituting the Change in Control consists of Capital Stock
traded on a national securities exchange or quoted on the Nasdaq National
Market or which will be so traded or quoted when issued or exchanged in
connection with a Change in Control.



     “Change in Control Purchase Date” has the meaning provided in
Section 3.4(a) hereof.



     “Change in Control Purchase Notice” has the meaning provided in
Section 3.4(c) hereof.



     “Change in Control Purchase Price” has the meaning provided in
Section 3.4(a) hereof.



     “Closing Price” means, as of any date of determination, the closing
sale price of a Common Share on such date (or if no closing sale price is
reported, the average of the bid and asked prices or, if more than one in
either case, the average of the average bid and the average asked prices) on
such date as reported by the Nasdaq National Market, or if the Common Shares
are not quoted on the Nasdaq National Market, as reported by the principal U.S.
exchange or quotation system on which the Common Shares are then listed or
quoted. If the Common Shares are not listed or quoted for trading on a
principal U.S. exchange or automated quotation system, the “Closing Price”
will be the average of the mid-point of the last bid and asked prices for the
Common Shares on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for
this purpose.



     “Common Shares” means the shares of beneficial interest, $0.01 par
value per share, of the Company, which is the Company’s only outstanding class
of Common Shares.



     “Company Notice” has the meaning provided in Section 3.3(f) hereof.



     “Company Notice Date” has the meaning provided in Section 3.3(f)
hereof.



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



     “Conversion Date” has the meaning provided in Section 4.1(c)
hereof.



     “Conversion Price” per Common Share means $1,000 divided by the
then-applicable Conversion Rate. The Initial Closing Price is $35.5679 per
Common Share.



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     “Conversion Rate” means, as of any date of determination, the
number of Common Shares into which a Convertible Note may be converted in
accordance with Article IV hereof. The initial Conversion Rate is 28.1152 per
$1,000 principal amount of Convertible Notes.



     “Conversion Value” of a Convertible Note means, as of any date of
determination, the product of the Closing Price multiplied by the Conversion
Rate.



     “Convertible Notes” has the meaning provided in Section 2.1 hereof.



     “Corporate Trust Office of the Trustee” means 213 Court Street,
Suite 703, Middletown, CT, 06457.



     “Current Market Price” means, (i) for purposes of Section 4.2(b),
(c) or (d), with respect to a Common Share on any day, the average of the daily
Closing Prices for the five consecutive Trading Days commencing six Trading
Days before the date on which Common Shares traded on such date settle regular
way on the Record Date with respect to distributions, issuances or other events
requiring computation under Section 4.2(b), (c) or (d); and (ii) for purposes
of Section 4.2(e), the average of the daily Closing Prices for the five
consecutive Trading Days commencing on the Trading Day next succeeding the
Expiration Date.



     “Ex-Dividend Date” means the first date upon which a sale of a
Common Share does not automatically transfer the right to receive the relevant
dividend from the seller of the Common Share to the buyer.



     “Expiration Date” has the meaning provided in Section 4.2(e)
hereof.



     “Expiration Time” has the meaning provided in Section 4.2(e)
hereof.



     “Extraordinary Cash Dividend” means any dividend or other cash
distribution payable in respect of the Common Shares that is not a Regular Cash
Dividend.



     “Interest Payment Date” means each May 15 and November 15 of each
year, commencing November 15, 2004.



     “Interest Period” means any six-month period from May 15 to
November 15 and from November 15 to May 15, as appropriate. Notwithstanding,
the initial Interest Period shall begin on the Original Issue Date and end on
November 15, 2004.



     “Market Price” of Common Shares on a Purchase Date means the
average of the Closing Prices of the Common Shares for the five Trading Day
period ending on the third Business Day Prior to such Purchase Date (if the
third Business Day prior to such Purchase Date is a Trading Day, or if not,
then on the last Trading Day immediately prior to the third Business Day),
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of the Trading Days of the five Trading Day period and
ending on such Purchase Date, of any event described in Section 4.2; subject,
however to the conditions set forth in Sections 4.3 and 4.4.



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     “Maryland REIT Statute” means Title 8 of the Corporations and
Associates Article of the Annotated Code of Maryland.



     “Original Issue Date” means May 12, 2004.



     “Principal Value Conversion” has the meaning provided in Section
4.1(b)(i).



     “Purchased Shares” has the meaning provided in Section 4.2(e).



     “Purchase Date” has the meaning provided in Section 3.3(a) hereof.



     “Purchase Notice” has the meaning provided in Section 3.3(b)
hereof.



     “Purchase Price” has the meaning provided in Section 3.3(a) hereof.



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



     “Redemption Date” has the meaning provided in Section 3.1 hereof.



     “Redemption Price” has the meaning provided in Section 3.1 hereof.



     “Regular Cash Dividend” means the regular quarterly cash
distributions as declared by the Board of Trustees as part of the Company’s
dividend payment practice or stated cash dividend payment practice or stated
cash dividend policy then in effect, as well as any dividends declared by the
Board of Trustees that are necessary to preserve the Company’s status as a real
estate investment trust for federal income tax purposes, whether publicly
announced or not.



     “Regular Record Date” means, with respect to each Interest Payment
Date, the close of business on the last calendar day of the month immediately
preceding the month in which such Interest Payment Date (whether or not a
Business Day) occurs.



     “Sale Price” means, on any date of determination, the average of
the secondary market bid quotations per Convertible Note in the principal
amount of $1,000, obtained by the Conversion Agent for $5 million aggregate
principal amount of Convertible Notes at approximately 3:30 p.m., New York City
time, on such determination date from three nationally recognized securities
dealers (none of which shall be an Affiliate of the Company) in The City of New
York (or such other place that may be determined from time to time by the
Company) selected by the Company; provided, however if (a) three such bids can
not be obtained by the Conversion Agent, then the average of the two bids shall
be obtained; (b) only one such bid can reasonably be obtained by the Conversion
Agent, that one bid shall be used. If the Conversion Agent cannot reasonably
obtain at least one such bid, or in the Company’s reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Convertible
Notes as of



-5-









 





such determination date, then the Sale Price for such determination date
shall be deemed to be less than 94% of the Conversion Values of the Convertible
Notes during that period.



     “Significant Subsidiary” means (1) any guarantor that would be a
“significant subsidiary” as defined in Regulation S-X promulgated pursuant to
the Securities Act as such Regulation is in effect on the Original Issue Date
and (2) any guarantor that, when aggregated with all other guarantors that are
not otherwise Significant Subsidiaries and as to which any bankruptcy event has
occurred and is continuing, would constitute a Significant Subsidiary under
clause (1) of this definition.



     “Special Record Date” has the meaning provided in Section 2.2(a)
hereof.



     “Stated Maturity” means May 15, 2024.



     “Subsidiary” means, with respect to any Person:



     (1) any Company, limited liability company, association or other business
entity of which more than 50% of the total voting power of the Equity Interests
entitled (without regard to the occurrence of any contingency) to vote in the
election of the Board of Directors thereof are at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof); and



     (2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more Subsidiaries of
such Person (or any combination thereof).



Unless otherwise specified, “Subsidiary” refers to a Subsidiary of the Company.



     “Trading Day” means (a) if the applicable security is listed,
admitted for trading or quoted on the New York Stock Exchange, the Nasdaq
National Market or another U.S. national or regional securities exchange, a
day on which the New York Stock Exchange, the Nasdaq National Market or such
other national or regional securities exchange, as the case may be, is open for
business or (b) if the applicable security is not so listed, admitted for
trading or quoted, any Business Day.



     “Trigger Event” has the meaning provided in Section 4.2(c).



     “Triggering Distribution” has the meaning provided in Section
4.2(d).



ARTICLE II




DESCRIPTION OF CONVERTIBLE NOTES




     SECTION 2.1 Establishment.



     (a) There is hereby established a new series of notes to be issued under
the Indenture, to be designated as the Company’s 6% Convertible Notes due May
15, 2024 (the “Convertible Notes”).



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     (b) There are to be authenticated and delivered $110,000,000 principal
amount of Convertible Notes. The maximum principal amount of Convertible Notes
of this series that may be issued is $110,000,000.



     (c) The Convertible Notes shall be issued in fully registered form. The
Convertible Notes shall be issued in the form of one or more Global Securities
in substantially the form set out in Exhibit A hereto. The Depositary
with respect to the Convertible Notes shall be The Depository Trust Company.



     (d) The form of the Trustee’s Certificate of Authentication for the
Convertible Notes shall be in substantially the form attached to the form of
Convertible Note.



     (e) Each Convertible Note shall be dated the date of authentication
thereof and shall bear interest from the Original Issue Date or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for.



     SECTION 2.2 Payment of Principal and Interest.



     (a) The principal of the Convertible Notes shall be due at Stated Maturity
(unless earlier redeemed, accelerated, purchased or converted). The unpaid
principal amount of the Convertible Notes shall bear interest at the rate of 6%
per annum until paid. Interest for each Interest Period shall be paid
semi-annually in arrears on each Interest Payment Date to the Person in whose
name the Convertible Notes are registered on the Regular Record Date for such
Interest Payment Date, provided that interest payable at the Stated Maturity of
principal or on a Redemption Date or Purchase Date as provided herein shall be
paid to the Person to whom principal is payable, except as otherwise provided
herein. Any such interest that is not so punctually paid or duly provided for
shall forthwith cease to be payable to the Holders on such Regular Record Date
and may either be paid to the Person or Persons in whose name the Convertible
Notes are registered at the close of business on a special record date
(“Special Record Date”) for the payment of such defaulted interest to be
fixed by the Trustee, notice whereof shall be given to Holders of the
Convertible Notes not less than ten days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Convertible Notes
shall be listed, and upon such notice as may be required by any such exchange,
all as more fully provided in the Base Indenture.



     (b) Payments of interest on the Convertible Notes shall include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Convertible Notes shall be computed and paid on the basis of a
360-day year of twelve, 30-day months. In the event that any date on which
interest is payable on the Convertible Notes is not a Business Day, then a
payment of the interest payable on such date shall be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on the date the payment was originally payable.



     (c) Subject to the rules of the Depositary with respect thereto, payment
of the principal and interest due at the Stated Maturity or earlier redemption,
purchase or conversion of the Convertible Notes shall be made upon surrender of
the Convertible Notes at the Corporate



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Trust Office of the Trustee. The Company will pay cash amounts in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company may pay interest, the Redemption Price,
Purchase Price, Change in Control Purchase Price and the principal amount at
Stated Maturity, as the case may be, by check or wire payable in such money;
provided, however that a Holder holding Convertible Notes with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may
mail an interest check to the Holder’s registered address. Notwithstanding the
foregoing, so long as this Convertible Note is registered in the name of a
Depositary or its nominee, all payments hereon shall be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.



     SECTION 2.3 Global Securities.



     (a) The Convertible Notes will be issued in the form of one or more Global
Securities registered in the name of the Depositary or its nominee. Except
under the limited circumstances described below, Convertible Notes represented
by one or more Global Securities will not be exchangeable for, and will not
otherwise be issuable as, Convertible Notes in definitive form. The Global
Securities described above may not be transferred except 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 or to a successor Depositary or its
nominee.



     (b) Owners of beneficial interests in such a Global Security will not be
considered the Holders thereof for any purpose under the Indenture, and no
Global Security representing a Convertible Note shall be exchangeable, except
for another Global Security of like denomination and tenor to be registered in
the name of the Depositary or its nominee or to a successor Depositary or its
nominee. The rights of Holders of such Global Security shall be exercised only
through the Depositary.



     (c) A Global Security shall be exchangeable for Convertible Notes
registered in the names of persons other than the Depositary or its nominee
only if (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Security and no successor
Depositary shall have been appointed by the Company, or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act, at
a time when the Depositary is required to be so registered to act as such
Depositary and no successor Depositary shall have been appointed by the
Company, in each case within 90 days after the Company receives such notice or
becomes aware of such cessation, (ii) the Company in its sole discretion
determines that such Global Security shall be so exchangeable, or (iii) there
shall have occurred an Event of Default with respect to the Convertible Notes.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Convertible Notes registered in such names as the
Depositary shall direct.



     (d) If the Convertible Notes are in the form of one or more Global
Securities, any requirement hereunder for delivery of such Convertible Note (or
identification of certificate numbers with respect thereto) shall require the
beneficial owners thereof and the Company to comply with the requirements of
the Depositary and its direct and indirect participants with respect thereto.
If the Convertible Notes become registrable in the names of persons other than
the Depositary, any requirement for the Company to pay the Purchase Price,
Change in Control



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Purchase Price, or to issue Common Shares on account of any conversion
shall be contingent upon such Holder delivering its certificate representing
such Convertible Notes to the Company, together with any required endorsement
of such certificate.



     SECTION 2.4 Transfer.



     (a) No service charge will be made for any transfer or exchange of
Convertible Notes, but payment will be required of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith.



     (b) The Company shall not be required (a) to issue, transfer or exchange
any Convertible Notes during a period beginning at the opening of business 15
days before the date of the mailing of a notice pursuant to Section 11.5 of the
Base Indenture identifying the numbers of the Convertible Notes to be called
for redemption, and ending at the close of business on the day of the mailing,
or (b) to transfer or exchange any Convertible Notes theretofore selected for
redemption in whole or in part, except the unredeemed portion of any
Convertible Notes redeemed in part.



     SECTION 2.5 Denominations. 



     The Convertible Notes may be issued in denominations of $1,000.00, or any
integral multiple thereof.



     SECTION 2.6 Ranking.



     The Convertible Notes will rank pari passu with all of the Company’s other
unsecured and unsubordinated Indebtedness.



     SECTION 2.7 Defeasance. The provisions of Article IV of the Base
Indenture shall be inapplicable to the Convertible Notes.



     SECTION 2.8 Additional Events of Default; Amendments.



     (a) In addition to those matters set forth in Section 5.1 of the Base
Indenture, an “Event of Default” with respect to the Convertible Notes shall
also mean any of the following events:




     (i) default in the Company’s obligation to repurchase Convertible
Notes upon the Company’s exercise of its repurchase option pursuant to
Section 3.1, upon the occurrence of a Change in Control pursuant to
Section 3.4 or upon the exercise by a holder of its option to require the
Company to repurchase such holder’s Convertible Notes pursuant to Section
3.3; or




     (ii) default in the Company’s obligation to convert the Convertible
Notes upon exercise of a Holder’s conversion right and continuance of
such default for ten Business Days.



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     (b) In addition to any waiver of default restrictions set forth in Section
5.13 of the Base Indenture, Holders of Convertible Notes may not waive any
Event of Default listed in Section 2.8(a).



     (c) In addition to the restrictions on amendments set forth in Section 9.2
of the Base Indenture, without the consent of each Holder of an outstanding
Convertible Note, no amendments shall be made that would:




     (i) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price;




     (ii) make any change that adversely affects the right to convert the
Convertible Notes into Common Shares; or




     (iii) make any change that adversely affects the Holders’ right to
require the Company to purchase a Convertible Note.



ARTICLE III




REDEMPTION




     SECTION 3.1 Optional Redemption.



     The Company, at its option, may redeem the Convertible Notes in cash, at
any time in whole or from time to time in part, on or after May 15, 2009 on any
date (a “Redemption Date”), at a redemption price equal to 100% of the
principal amount of the Convertible Notes to be redeemed (the “Redemption
Price”) plus any accrued and unpaid interest on the principal amount to be
redeemed to but excluding the Redemption Date; provided that if the Redemption
Date is on or after a Regular Record Date but on or prior to the related
Interest Payment Date, interest will be payable to the Holders in whose names
the Convertible Notes are registered at the close of business on the relevant
Regular Record Date.



     SECTION 3.2 Notice of Redemption.



     (a) The Company shall provide notice to the Trustee and to each Holder of
Securities of Convertible Notes as provided in Sections 11.3 and 11.5 of the
Base Indenture except that notice to Holders shall be given at least 15 days
but not more than 60 days before the Redemption Date. In addition to the
information required by Section 11.5, the Company shall provide to each Holder
with the Notice of Redemption:




     (i) the Conversion Price;




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




     (iii) that the Convertible Notes called for redemption may be
converted at any time before the close of business on the Business Day
preceding the Redemption Date; and



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     (iv) that the Holders who want to convert Convertible Notes must
satisfy the requirements set forth in paragraph 8 of the Global Security.



     (b) If any Convertible Note selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Convertible Note so selected, the converted portion of such Convertible
Note shall be deemed (so far as may be) to be the portion selected for
redemption. Convertible Notes that have been converted during a selection of
Convertible Notes to be redeemed may be treated by the Trustee as outstanding
for the purpose of such selection.



     SECTION 3.3 Purchase of Convertible Notes at the Option of the
Holder. 



     (a) General. On each of May 15, 2009, May 15, 2014 and May 15, 2019
(each, a “Purchase Date”), each Holder shall have the right, at such
Holder’s option, to require the Company to purchase any or all of such Holder’s
Convertible Notes. The Company shall purchase such Convertible Notes at a
price equal to 100% of the principal amount of the Convertible Notes to be
purchased (the “Purchase Price”) plus any accrued and unpaid interest on
the principal amount to be purchased to but excluding the Purchase Date;
provided that if the Purchase Date is on or after a Regular Record Date but on
or prior to the related Interest Payment Date, interest will be payable to
Holders in whose names the Convertible Notes are registered at the close of
business on the relevant Regular Record Date.



     (b) Exercise of Purchase Option. For a Convertible Note to be so
purchased at the option of the Holder, the Paying Agent must receive:




     (i) from the Holder a written notice of purchase (a “Purchase
Notice”) at any time from the opening of business on the date that is
20 Business Days prior to the Purchase Date until the close of business
on the fifth Business Day prior to such Purchase Date stating:




     (A) the portion of the principal amount of the Convertible
Note which the Holder will deliver to be purchased, which portion
must be in principal amounts of $1,000 or an integral multiple
thereof;




     (B) that such Convertible Note shall be purchased as of the
Purchase Date pursuant to the terms and conditions specified in
paragraph 6 of the Global Security and in this Indenture;




     (C) if an Accounting Event has occurred and the Company has
elected, pursuant to Section 3.3(c), to pay the Purchase Price in
Common Shares, whether, if such portion of the Purchase Price shall
ultimately become payable entirely in cash because any of the
conditions to payment of the Purchase Price in Common Shares is not
satisfied prior to the close of business on the relevant Purchase
Date as set forth in Section 3.3(e), such Holder elects (i) to
withdraw such Purchase Notice as to some or all of the Convertible
Notes to which such Purchase Notice relates (stating the expected
principal amount of the Convertible Notes as to which such
withdrawal shall relate), or (ii) to receive cash in respect of the
entire



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Purchase Price for all Convertible Notes (or portions thereof)
to which such Purchase Notice relates; and




     (D) delivery of such Convertible Note to the Paying Agent
prior to, on or after the Purchase Date (together with all
necessary endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the Purchase
Price therefor, together with all accrued interest; provided,
however, that such Purchase Price, together with all accrued
interest, shall be so paid pursuant to this Section 3.3 only if the
Convertible Note so delivered to the Paying Agent shall conform in
all respects to the description thereof in the related Purchase
Notice, as determined by the Company.



     If a Holder, in a Purchase Notice or a written notice of withdrawal
delivered to the Paying Agent in accordance with Section 3.5, fails to indicate
such Holder’s choice with respect to the election set forth in clause (C) of
Section 3.3(b)(i), such Holder shall be deemed to have elected to receive cash
in respect of the entire Purchase Price for all Convertible Notes subject to
such Purchase Notice in the circumstances set forth in such clause (C).



     The Company shall purchase from the Holder thereof, pursuant to this
Section 3.3, a portion of a Convertible Note if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Convertible Note also apply to
the purchase of such portion of such Convertible Note.



     Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.3 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
compliance with Section 3.3(b).



     Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 3.3(b) shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the Business Day preceding the Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
3.5.



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



     (c) Manner of Payment of Purchase Price. The Purchase Price of
Convertible Notes in respect of which a Purchase Notice pursuant to Section
3.3(b) has been given shall be paid in U.S. legal tender. Notwithstanding the
foregoing, upon the occurrence of an Accounting Event, the Company may elect to
pay the Purchase Price of Convertible Notes, in cash or Common Shares.



     (d) Payment of Purchase Price in Cash. If the Purchase Price is to be
paid in cash, the Company shall deposit cash, in respect of purchases under
this Section 3.3, at the time and in the manner as provided in Section 3.5(b),
sufficient to pay the aggregate Purchase Price of all Convertible Notes,
together with all accrued interest to, but not including, the Purchase Date, to
be purchased pursuant to this Section 3.3.



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     (e) Payment of Purchase Price in Common Shares. If an Accounting Event
has occurred and the Company has elected to pay the Purchase Price of
Convertible Notes in Common Shares, the Company shall issue a number of Common
Shares equal to the quotient obtained by dividing (i) the Purchase Price to be
paid by Common Shares by (ii) the Market Price of one Common Share as
determined by the Company in the Company Notice, subject to the next succeeding
paragraph.



     The Company shall not issue fractional Common Shares in payment of the
Purchase Price. Instead, the Company shall pay cash based on the Market Price
for all fractional shares. It is understood that if a Holder elects to have
more than one Convertible Note purchased, the number of Common Shares shall be
based on the aggregate amount of Convertible Notes to be purchased.



     The Company’s right to exercise its election to purchase Convertible Notes
through the issuance of Common Shares shall be conditioned upon:




     (i) the occurrence of an Accounting Event;




     (ii) the Company not having given its Company Notice of an election
to pay in cash and its giving of a timely Company Notice of an election
to purchase the Convertible Notes with Common Shares as provided herein;




     (iii) the registration of such Common Shares under the Securities
Act or the Exchange Act, in each case, if required by applicable law;




     (iv) the authorization for quotation of such Common Shares on the
Nasdaq National Market, or if the Common Shares are not then quoted on
the Nasdaq National Market, the listing of such Common Shares on a
principal national securities exchange on which the Common Shares are
then listed;




     (v) any necessary qualifications or registration under applicable
state securities laws or the availability of an exemption therefrom; and




     (vi) the receipt by the Trustee of an Officers’ Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Common Shares are in conformity with this Indenture and (B) the Common
Shares to be issued by the Company in payment of the Purchase Price in
respect of the Convertible Notes have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment
of the Purchase Price in respect of the Convertible Notes, shall be
validly issued, fully paid and non-assessable and free from preemptive
rights under the Company’s Declaration of Trust and Bylaws and the
Maryland REIT Statute, and, in the case of such Officers’ Certificate,
stating that the conditions above and the condition set forth in the
second succeeding sentence have been satisfied and, in the case of such
Opinion of Counsel, stating that the conditions in clauses (iii) through
(v) above have been satisfied.



     Such Officers’ Certificate shall also set forth the number of Common
Shares to be issued for each $1,000 principal amount and the Closing Price of a
single Common Share on each Trading Day during the period commencing on the
first Trading Day of the period during which



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the Market Price is calculated and ending on the third day prior to the
applicable Purchase Date. The Company may pay the Purchase Price in Common
Shares only if the information necessary to calculate the Market Price is
published in a daily newspaper of national circulation. If the foregoing
condition and the conditions in clauses (i) through (vi) above are not
satisfied prior to the close of business on the Purchase Date, and the Company
has elected to purchase the Convertible Notes pursuant to this Section 3.3
through the issuance of Common Shares, the Company shall pay the entire
Purchase Price of Convertible Notes in cash.



     Upon determination of the actual number of Common Shares to be issued upon
redemption of Convertible Notes, the Company shall (i) disseminate a press
release containing such information through at least two of Reuter’s Economic
Services, Bloomberg Business News, PR Newswire and Dow Jones & Company Inc. and
(ii) publish such information on its web site or through such other public
medium as it may use at that time.



     (f) Company Notice. In connection with any purchase of Convertible Notes
pursuant to Section 3.3, the Company shall give written notice of the Purchase
Date to the Holders (the “Company Notice”). The Company Notice shall be
sent by first-class mail to the Trustee and to each Holder (and to each
beneficial owner as required by applicable law) not less than 20 Business Days
prior to any Purchase Date (the “Company Notice Date”). Each Company
Notice shall include a form of Purchase Notice to be completed by a Convertible
Noteholder and shall state:




     (i) the Purchase Price and the Conversion Price per $1,000 principal
amount of Convertible Notes;




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




     (iii) if an Accounting Event has occurred, whether the Company is
electing to pay the Purchase Price in cash or Common Shares;




     (iv) if an Accounting Event has occurred and the Company has elected
to pay the Purchase Price in Common Shares, the Market Price and the
method for calculating same;




     (v) that Convertible Notes as to which a Purchase Notice has been
given may be converted if they are otherwise convertible only in
accordance with Article IV hereof and paragraph 8 of the Global Security
if the applicable Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;




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




     (vii) that the Purchase Price for, and any accrued interest on, any
Convertible Note as to which a Purchase Notice has been given and not
withdrawn will be paid promptly following the later of the Purchase Date
and the time of surrender of such Convertible Note;



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     (viii) the procedures the Holder must follow to exercise rights
under Section 3.3 and a brief description of those rights;




     (ix) briefly, the conversion rights of the Convertible Notes;




     (x) the procedures for withdrawing a Purchase Notice (including
pursuant to the terms of Section 3.5);




     (xi) that, unless the Company defaults in making payments on
Convertible Notes for which a Purchase Notice has been submitted,
interest on such Convertible Notes will cease to accrue on the Purchase
Date; and




     (xii) the CUSIP number of the Convertible Notes.



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



     SECTION 3.4 Purchase of Convertible Notes at Option of the Holder upon
a Change in Control.



     (a) If at any time the Convertible Notes remain outstanding there shall
have occurred a Change in Control, Convertible Notes shall be purchased by the
Company, at the option of the Holder thereof, at a price equal to 100% of the
principal amount of the Convertible Notes to be purchased (the “Change in
Control Purchase Price”) plus any accrued and unpaid interest on the
principal amount to be purchased to but not including the date that is 45
Business Days after the occurrence of the Change in Control (the “Change in
Control Purchase Date”), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.4(c).



     (b) Within 30 days after the occurrence of a Change in Control, the
Company shall mail a written notice of the Change in Control by first-class
mail to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include a form of Change in Control Purchase
Notice to be completed by the Convertible Noteholder and shall state:




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




     (ii) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.4 must be given;




     (iii) the Change in Control Purchase Date and the last date on which
a Holder may exercise its purchase right;




     (iv) the Change in Control Purchase Price;




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



-15-









 






     (vi) the Conversion Price;




     (vii) that Convertible Notes as to which a Change in Control
Purchase Notice has been given may be converted pursuant to Article IV
hereof only if the Change in Control Purchase Notice has been withdrawn
in accordance with the terms of this Indenture;




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




     (ix) that the Change in Control Purchase Price for any Convertible
Note as to which a Change in Control Purchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the Change
in Control Purchase Date and time of surrender of such Convertible Note;




     (x) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.4;




     (xi) briefly, the conversion rights of the Convertible Notes;




     (xii) the procedures for withdrawing a Change in Control Purchase
Notice;




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




     (xiv) the CUSIP number of the Convertible Notes.



     (c) A Holder may exercise its rights specified in Section 3.4(a) upon
delivery of a written notice of purchase (a “Change in Control Purchase
Notice”) to the Paying Agent at any time prior to the close of business on
the fifth Business Day prior to the Change in Control Purchase Date, stating:




     (i) the portion of the principal amount of the Convertible Note to
be purchased, which portion must be $1,000 or an integral multiple
thereof; and




     (ii) that such Convertible Note shall be purchased pursuant to the
terms and conditions specified in paragraph 6 of the Global Security.



     The delivery of such Convertible Note to the Paying Agent prior to, on or
after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.4 only if the Convertible Note so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth
in the related Change in Control Purchase Notice.



-16-









 





     The Company shall purchase from the Holder thereof, pursuant to this
Section 3.4, a portion of a Convertible Note if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Convertible Note also apply to
the purchase of such portion of such Convertible Note.



     Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.4 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Change in Control
Purchase Date and compliance with Section 3.4(c).



     Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Change in Control Purchase Notice contemplated by this
Section 3.4(c) shall have the right to withdraw such Change in Control Purchase
Notice at any time prior to the close of business on the Business Day
immediately preceding the Change in Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
3.5.



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



     SECTION 3.5 Effect of Purchase Notice or Change in Control Purchase
Notice.



     Upon receipt by the Paying Agent of the Purchase Notice or Change in
Control Purchase Notice specified in Section 3.3(b) or Section 3.4(c), as
applicable, the Holder of the Convertible Note in respect of which such
Purchase Notice or Change in Control Purchase Notice, as the case may be, was
given shall (unless such Purchase Notice or Change in Control Purchase Notice
is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price or Change in Control Purchase
Price, as the case may be, with respect to such Convertible Note. Such
Purchase Price or Change in Control Purchase Price, together with all accrued
interest to, but not including, the Purchase Date or Change in Control Purchase
Date, as the case may be, shall be paid to such Holder promptly following the
later of (x) the Purchase Date or the Change in Control Purchase Date, as the
case may be, with respect to such Convertible Note (provided the conditions in
Section 3.3(b) or Section 3.4(c), as applicable, have been satisfied) and (y)
the time of delivery of such Convertible Note to the Paying Agent in the manner
provided in this Indenture. Convertible Notes in respect of which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been given
by the Holder thereof may not be converted pursuant to Article IV hereof on or
after the date of the delivery of such Purchase Notice or Change in Control
Purchase Notice, as the case may be, unless such Purchase Notice or Change in
Control Purchase Notice, as the case may be, has first been validly withdrawn
as specified in the following two paragraphs.



     A Purchase Notice or Change in Control Purchase Notice, as the case may
be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Purchase Notice or Change
in Control Purchase Notice, as the case may be, at any time prior to the close
of business on the Business Day preceding the Purchase Date or the Change in
Control Purchase Date, as the case may be, specifying:



-17-









 






     (i) the principal amount of the Convertible Note with respect to
which such notice of withdrawal is being submitted, and




     (ii) the principal amount, if any, of the Convertible Note which
remains subject to the original Purchase Notice or Change in Control
Purchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company.



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



     There shall be no purchase of any Convertible Notes pursuant to Section
3.3 or 3.4 if there has occurred (prior to, on or after, as the case may be,
the giving, by the Holders of such Convertible Notes, of the required Purchase
Notice or Change in Control Purchase Notice, as the case may be) and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Convertible Notes). The Paying Agent will promptly return to
the respective Holders thereof any Convertible Notes (x) with respect to which
a Purchase Notice or Change in Control Purchase Notice, as the case may be, has
been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Convertible Notes) in which case, upon such return, the
Purchase Notice or Change in Control Purchase Notice with respect thereto shall
be deemed to have been withdrawn.



     (b) Deposit of Purchase Price or Change in Control Purchase Price.
Prior to 10:00 a.m. (local time in the City of New York) on the Purchase Date
or the Change in Control Purchase Date, as the case may be, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 6.5 of the Base
Indenture) an amount of money (in immediately available funds if deposited on
such Business Day) sufficient to pay the aggregate Purchase Price, together
with all accrued interest to, but not including, the Purchase Date or Change in
Control Purchase Price, as the case may be, of all the Convertible Notes or
portions thereof which are to be purchased as of the Purchase Date or Change in
Control Purchase Date, as the case may be.



     SECTION 3.6 Covenant to Comply With Securities Laws Upon Purchase of
Convertible Notes. 



     When complying with the provisions of Section 3.3 or 3.4 hereof (provided
that such offer or purchase constitutes an “issuer tender offer” for purposes
of Rule 13e-4 (which term, as used herein, includes any successor provision
thereto) under the Exchange Act at the time of such offer or purchase), the
Company shall (i) comply in all material respects with Rule 13e-4 and Rule
14e-1 under the Exchange Act, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply in all material respects with all federal and state securities laws so
as to permit the rights and obligations under Sections 3.3 and 3.4 to be
exercised in the time and in the manner specified in Sections 3.3 and 3.4.



-18-









 





     SECTION 3.7 Repayment to the Company.



     The Trustee and the Paying Agent shall return to the Company any cash that
remains unclaimed, together with interest or dividends, if any, thereon
(subject to the provisions of Section 6.2(j) of the Base Indenture), held by
them for the payment of the Purchase Price or Change in Control Purchase Price,
as the case may be, and accrued interest; provided, however, that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section
3.5 exceeds the aggregate Purchase Price or Change in Control Purchase Price,
as the case may be, of the Convertible Notes or portions thereof which the
Company is obligated to purchase as of the Purchase Date or Change in Control
Purchase Date, as the case may be, and accrued interest thereon, then, unless
otherwise agreed in writing with the Company, promptly after the Business Day
following the Purchase Date or Change in Control Purchase Date, as the case may
be, the Trustee shall return any such excess to the Company together with
interest or dividends, if any, thereon (subject to the provisions of Section
6.2(j) of the Base Indenture).



ARTICLE IV




CONVERSION OF CONVERTIBLE NOTES




     SECTION 4.1 Conversion of Convertible Notes.



     (a) Subject to the further provisions of this Article IV and paragraph 8
of the Global Security, a Holder of a Convertible Note may convert the
principal amount of such Convertible Note (or any portion thereof equal to
$1,000 or any integral multiple of $1,000 in excess thereof) into Common Shares
on any Business Day, if the average of the Closing Prices of the Common Shares
for the immediately preceding 30 consecutive Trading Day period is more than
110% of the average of the Conversion Prices of our Common Shares during such
30-Trading Day period (the “Closing Price Condition”), subject to the
exceptions provided below; provided, however, that if such Convertible Note is
called for redemption or submitted or presented for purchase pursuant to
Article III such conversion right shall terminate at the close of business on
the Business Day immediately preceding the Redemption Date or Change in Control
Purchase Date, as the case may be, for such Convertible Note (unless the
Company shall default in making the redemption payment or Change in Control
Purchase Price payment when due, in which case the conversion right shall not
apply following the close of business on the date such default is cured and
such Convertible Note is redeemed or purchased, as the case may be). The
number of Common Shares deliverable upon conversion of a Convertible Note is
determined by dividing (x) the principal amount of the Convertible Notes, or
the portion thereof being converted, by (y) the Conversion Price in effect on
the Conversion Date. The initial Conversion Price and the Conversion Rate
shall be that set forth in paragraph 8 of the Global Security.



     Holders will not receive any cash payment representing accrued and unpaid
interest upon conversion of a Convertible Note. Accrued and unpaid interest
on the Convertible Note shall be deemed paid in full rather than canceled,
extinguished or forfeited. The Company will not adjust the Conversion Rate to
account for accrued interest, if any.



     A Holder of Convertible Notes is not entitled to any rights of a holder of
Common Shares until such Holder has converted its Convertible Note to Common
Shares, and only to the extent



-19-









 





such Convertible Note are deemed to have been converted into Common Shares
pursuant to this Article IV.



(b) Even if the Closing Price Condition is not satisfied,





     (i) if during any five consecutive Trading Day period, the average
of the Sale Prices for the Convertible Notes for that five consecutive
Trading Day period was less than 94% of the average of the Conversion
Values for the Convertible Notes during that period, a Holder may
surrender Convertible Notes for conversion at any time during the
following five Business Days; provided, however, that if on any
Conversion Date on which a Convertible Note is surrendered for conversion
based on the condition described in this paragraph that is on or after
May 15, 2019, the Closing Price on the Trading Day before the Conversion
Date is greater than 100% of the then applicable Conversion Price and
less than 110% of the then applicable Conversion Price, then Holders
surrendering Convertible Notes for conversion will receive, at the option
of the Company, in lieu of Common Shares based on the then applicable
Conversion Rate, cash or Common Shares with a value equal to the
principal amount of the Convertible Notes being converted (a
“Principal Value Conversion”). Common Shares delivered upon a
Principal Value Conversion will be valued at the Closing Price on the
Conversion Date. The Company shall deliver Common Shares upon a
Principal Value Conversion no later than the third business day following
the determination of the Closing Price;




The Conversion Agent will determine the Sale Price of the Convertible
Notes pursuant to this Section 4.1(b)(i) only after being instructed to
do so by the Company. The Company has no obligation to so instruct the
Conversion Agent unless a Holder provides the Company with reasonable
evidence that the provisions of this Section 4.1(b)(i) have been
satisfied. If such reasonable evidence is so presented, the Company
shall instruct the Conversion Agent to determine the Sale Prices for the
applicable period; provided that the Conversion Agent shall be under no
duty or obligation to make the calculations described in Section 4(b)(i)
hereof or to determine whether the Convertible Notes are convertible
pursuant to such Section. For the avoidance of doubt, the Company shall
make the calculations described in Section 4.1(b)(i) using the Sale Price
provided by the Conversion Agent.




     (ii) a Holder may surrender for conversion a Convertible Note that
has been called for redemption pursuant to Section 3.1 at any time prior
to close of business on the Business Day prior to the Redemption Date;




     (iii) in the event that the Company declares:




     (A) a dividend or distribution of any rights or warrants to
all holders of Common Shares entitling them to subscribe for or
purchase, for a period expiring within 60 days, Common Shares at a
price less than the Current Market Price on the Trading Day
immediately preceding the Record Date for such dividend or
distribution, or




     (B) a dividend or distribution of cash, debt securities (or
other evidences of indebtedness), or other assets (excluding
dividends or distributions



-20-









 






for which Conversion Rate adjustment is required to be made
under Section 4.2(a) or Section 4.2(b) below), where the fair
market value of such dividend or distribution has a per share value
exceeding 10% of the Current Market Price as of the Trading Day
immediately preceding the declaration date for such dividend or
distribution,




then the Convertible Notes may be surrendered for conversion beginning on
the date the Company gives notice to the Holders of such right, which
shall not be less than 20 days prior to the Ex-Dividend Date for such
dividend or distribution, and Convertible Notes may be surrendered for
conversion at any time until the earlier of the close of business on the
Business Day prior to the Ex-Dividend Date or the Company’s announcement
that such distribution will not take place. No adjustment to the ability
of the holders to convert will be made if the holders are entitled to
participate in the distribution without conversion; and




     (iv) in the event that the Company is a party to a consolidation,
merger or binding share exchange pursuant to which all or substantially
all of the Common Shares would be converted into cash, securities or
other property, the Convertible Notes may be surrendered for conversion
at any time from or after the date which is 15 days prior to the
anticipated effective date of the transaction until 15 days after the
actual date of such transaction.




The Board of Trustees shall determine the anticipated effect date of the
transaction, and such determination shall be conclusive and binding on
the Holders and shall be publicly announced by the Company by issuance of
a press release and publication on its website or through such other
public medium as it may use at that time not later than two Business Days
prior to the 15th day before the anticipated effective date.



     (c) Conversion Procedure. To convert a Convertible Note, a Holder must
satisfy the requirements in paragraph 8 of the Global Security. The first
Business Day on which the Holder satisfies all those requirements is the
conversion date (the “Conversion Date”).



     As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder, through the Conversion Agent, a certificate for the
number of full Common Shares deliverable upon the conversion or exchange and
cash in lieu of any fractional share determined pursuant to Section 4.1(d);
provided that, in case of a Principal Value Conversion pursuant to Section
4.1(b)(i), the Company shall deliver such Common Shares or cash pursuant to
Section 4.1(d) not later than three Business Days following the Conversion
Date. The person in whose name the certificate is registered shall be treated
as a shareholder of record on and after the next Business Day following the
Conversion Date. Upon conversion of a Convertible Note, such person shall no
longer be a Holder of such Convertible Note. No payment or adjustment will be
made for dividends on, or other distributions with respect to, any Common
Shares except as provided in this Article IV.



     If any Holder elects to convert Convertible Notes (in whole or in part)
during the period from the close of business on any Regular Record Date for the
payment of an installment of interest to the opening of business on the next
succeeding Interest Payment Date, then the Holder shall deliver to the
Conversion Agent payment in funds acceptable to the Company of an amount



-21-









 





equal to the interest payable on such Interest Payment Date on the
principal amount of such Convertible Notes then being converted, and such
interest installment shall be payable to such registered Holder notwithstanding
the conversion of the Convertible Notes, subject to the provisions of this
Indenture relating to the payment of defaulted interest by the Company. If the
Company defaults in the payment of interest payable on such Interest Payment
Date, the Company shall promptly repay such funds to such Holder.



     Nothing in this Section 4.1 shall affect the right of a Holder in whose
name any Convertible Note is registered at the close of business on a Regular
Record Date to receive the interest payable on such Convertible Note on the
related Interest Payment Date in accordance with the terms of this Indenture
and the Convertible Notes. If the Holder converts more than one Convertible
Note at the same time, the number of Common Shares deliverable upon the
conversion shall be based on the total principal amount of the Convertible
Notes converted.



     If the last day on which a Convertible Note may be converted is not a
Business Day, the Convertible Note may be converted on the next succeeding day
that is a Business Day.



     If a Convertible Note is converted in part, the Company shall execute and
the Trustee shall authenticate and deliver to the Holder, a new Convertible
Note in an authorized denomination equal in principal amount to the unconverted
portion of the Convertible Note.



     A Convertible Note in respect of which a Holder has delivered a Purchase
Notice pursuant to Section 3.3 or a Change in Control Purchase Notice pursuant
to Section 3.4 exercising the option of such Holder to require the Company to
purchase such Convertible Note may be converted only if such Purchase Notice or
Change in Control Purchase Notice is withdrawn by a written notice of
withdrawal complying in all respects with each of the provisions of this
Indenture relating to such notice and delivered to the Paying Agent prior to
the close of business on the Business Day preceding the Purchase Date or Change
in Control Purchase Date, as the case may be.



     (d) Cash Payments in Lieu of Fractional Shares. The Company shall not
issue fractional Common Shares upon conversion of Convertible Notes. Instead
the Company shall deliver cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined to
the nearest 1/1,000 of a share by multiplying the Closing Price on the Trading
Day immediately preceding the Conversion Date by the fractional amount and
rounding the product to the nearest whole cent.



     (e) Taxes on Conversion. The Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of Common Shares upon conversion
of a Convertible Note. However, the Holder shall pay any such tax which is due
because the Holder requests the shares to be issued in a name other than the
Holder’s name. The Conversion Agent may refuse to deliver the certificates
representing the Common Shares being issued in a name other than the Holder’s
name until the Conversion Agent receives a sum sufficient to pay any tax which
shall be due because the shares are to be issued in a name other than the
Holder’s name. Nothing herein shall preclude the Company’s withholding any tax
required by law or regulations.



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     (f) Covenants of the Company. The Company shall, prior to issuance of any
Convertible Notes hereunder, and from time to time as may be necessary, reserve
out of its authorized but unissued Common Shares a sufficient number of Common
Shares to permit the conversion of the Convertible Notes. All Common Shares
delivered upon conversion of the Convertible Notes shall be newly issued
shares, shall be duly and validly issued and fully paid and nonassessable, and
shall be free from preemptive rights under the Company’s Declaration of Trust
and Bylaws and the Maryland REIT Statute and free of any lien or adverse claim.
The Company shall endeavor promptly to comply with all federal and state
securities laws regulating the order and delivery of Common Shares upon the
conversion of Convertible Notes, if any, and shall cause to have listed or
quoted all such Common Shares on each United States national securities
exchange, automated quotation system or over-the-counter or other domestic
market on which the Common Shares are then listed or quoted; provided, that if
the rules of such exchange, system or market permit the Company to defer the
listing or quotation of the Common Shares until the first conversion of the
Convertible Notes into Common Shares in accordance with the provisions of this
Indenture, the Company covenants to list such Common Shares issuable upon
conversion of the Convertible Notes in accordance with the requirements of such
exchange, system or market at such time.



     SECTION 4.2 Adjustment of Conversion Rate.



     The Conversion Rate shall be adjusted from time to time by the Company as
follows:



     (a) In case the Company shall (i) pay a dividend on its Common Shares in
Common Shares, (ii) make a distribution on its Common Shares in Common Shares,
(iii) subdivide its outstanding Common Shares into a greater number of shares,
or (iv) combine its outstanding Common Shares into a smaller number of shares,
the Conversion Rate in effect immediately prior thereto shall be adjusted so
that the same shall equal the rate determined by multiplying the Conversion
Rate in effect immediately prior to such event by a fraction of which the
numerator shall be the number of Common Shares outstanding immediately after
such event and the denominator of which shall be the number of Common Shares
outstanding immediately prior to such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the Record Date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.



     (b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Common Shares entitling them (for a period
commencing no earlier than the Record Date described below and expiring not
more than 60 days after such Record Date) to subscribe for or purchase Common
Shares (or securities convertible into Common Shares) at a price per share (or
having a conversion price per share) less than the Current Market Price on the
Trading Day immediately prior to the Record Date for such issuance, the
Conversion Rate in effect shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to such Record Date by a fraction of which the numerator shall be the number of
Common Shares outstanding at the close of business on the date immediately
preceding the Record Date plus the number of additional Common Shares offered
(or into which the Convertible Notes so offered are convertible), and the
denominator of which shall be the number of Common Shares outstanding at the
close of business on the date immediately preceding the Record Date plus the
number of shares which the aggregate offering



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price of the total number of Common Shares so offered (or the aggregate
conversion price of the Convertible Notes so offered, which shall be determined
by multiplying the number of Common Shares issuable upon conversion of such
Convertible Notes by the Conversion Price Common Share pursuant to the terms of
such Convertible Notes) would purchase at the Current Market Price on the
Trading Day immediately preceding the Record Date for such issuance. Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective on the day following the date of
announcement of such issuance. If at the end of the period during which such
rights or warrants are exercisable not all rights or warrants shall have been
exercised, the adjusted Conversion Rate shall be immediately readjusted to what
it would have been based upon the number of additional Common Shares actually
issued (or the number of Common Shares issuable upon conversion of Convertible
Notes actually issued).



     (c) In case the Company shall distribute to all or substantially all
holders of its Common Shares, any shares of Capital Stock of the Company (other
than Common Shares), Extraordinary Cash Dividends or any evidences of
Indebtedness or other non-cash assets (including securities of any person other
than the Company but excluding dividends or distributions referred to in
subsection (a) of this Section 4.2), or shall distribute to all or
substantially all holders of its Common Shares rights or warrants to subscribe
for or purchase any of its Convertible Notes (excluding those rights and
warrants referred to in subsection (b) of this Section 4.2, then in each such
case the Conversion Rate shall be adjusted so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect immediately prior
to such distribution by a fraction of which the numerator shall be the Current
Market Price on the Record Date for such distribution and the denominator shall
be the Current Market Price on such Record Date less the fair market value on
such Record Date (as determined by the Board of Directors, whose determination
shall be conclusive evidence of such fair market value and which shall be
evidenced by an Officers’ Certificate delivered to the Trustee) of the portion
of the Capital Stock, evidences of Indebtedness or other non-cash assets so
distributed or of such rights or warrants applicable to one Common Share
(determined on the basis of the number of Common Shares outstanding on the
Record Date). Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the Record
Date for such distribution.



     In the event the then fair market value (as so determined) of the portion
of the Capital Stock, evidences of Indebtedness or other non-cash assets so
distributed or of such rights or warrants applicable to one Common Share is
equal to or greater than the Current Market Price on such Record Date, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
holder of a Convertible Note shall have the right to receive upon conversion
the amount of Capital Stock, evidences of Indebtedness or other non-cash assets
so distributed or of such rights or warrants such holder would have received
had such holder converted each Convertible Note on such Record Date. In the
event that such dividend or distribution is not so paid or made, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if such dividend or distribution had not been declared. If the Board of
Trustees determines the fair market value of any distribution for purposes of
this Section 4.2 by reference to the actual or when issued trading market for
any Convertible Notes, it must in doing so consider the prices in such market
over the same period used in computing the Current Market Price.



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     Rights or warrants distributed by the Company to all holders of Common
Shares entitling the holders thereof to subscribe for or purchase shares of the
Company’s Capital Stock (either initially or under certain circumstances),
which rights or warrants, until the occurrence of a specified event or events
(“Trigger Event”) (i) are deemed to be transferred with such Common
Shares; (ii) are not exercisable; and (iii) are also issued in respect of
future issuances of Common Shares, shall be deemed not to have been distributed
for purposes of this Section 4.2 (and no adjustment to the Conversion Rate
under this Section 4.2 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this Section 4.2. If any such right or
warrant, including any such existing rights or warrants distributed prior to
the date of this Indenture, are subject to events, upon the occurrence of which
such rights or warrants become exercisable to purchase different securities,
evidences of Indebtedness or other non-cash assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of
distribution and Record Date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 4.2
was made, (i) in the case of any such rights or warrants, all of which shall
have been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as
though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Shares with respect
to such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Shares as of the date of such
redemption or repurchase, and (ii) in the case of such rights or warrants which
shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights and warrants had not
been issued.



     (d) In case the Company shall distribute a Regular Cash Dividend (a
“Triggering Distribution”) to all or substantially all holders of its
Common Shares in excess of $0.42 per share in any quarterly period, the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying such Conversion Rate in effect on the Business Day
immediately preceding the Record Date for such Triggering Distribution by a
fraction of which the numerator shall be the Current Market Price on the Record
Date for such Triggering Distribution, and the denominator shall be the Current
Market Price on the Record Date for such Triggering Distribution less the
aggregate amount by which the cash so distributed applicable to one Common
Share (determined on the basis of the number of Common Shares outstanding on
the Record Date for such Triggering Distribution) exceeds $0.42 in any
quarterly period, such increase to become effective immediately prior to the
opening of the Business Day following the date on which the Triggering
Distribution is paid. It is expressly understood that a stock buyback,
repurchase or similar transaction or program shall in no event be considered a
Triggering Distribution for purposes of this Section 4.2(d) or Section 4.2(e).



     (e) In case the Company or any of its Subsidiaries shall purchase any of
the Company’s Common Shares (excluding stock options) by means of a tender
offer, other than an



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odd-lot offer by the Company or any of its Subsidiaries, then, effective
immediately prior to the opening of Business Day after the last date (the
“Expiration Date”) tenders could have been made pursuant to such tender
offer (as it may be amended) (the last time at which such tenders could have
been made on the Expiration Date is hereinafter sometimes called the
“Expiration Time”), the Conversion Rate shall be adjusted so that the
same shall equal the rate determined by multiplying the Conversion Rate in
effect at the close of business on the Expiration Date by a fraction of which
the numerator shall be the sum of (i) the aggregate consideration (determined
as set forth below) payable to shareholders of the Company based on the
acceptance (up to any maximum specified in the terms of the tender offer) of
all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
“Purchased Shares”) and (ii) the product of the number of Common Shares
outstanding (less any Purchased Shares) immediately after the Expiration Time
and the Current Market Price per share of the Common Shares, and the
denominator shall be the product of the number of Common Shares outstanding
(including Purchased Shares) immediately prior to the Expiration Time
multiplied by the Current Market Price as of the close of business on the
Expiration Date. For purposes of this Section 4.2(e), the aggregate
consideration in any such tender offer shall equal the sum of the aggregate
amount of cash consideration and the aggregate fair market value (as determined
by the Board of Trustees, whose determination shall be conclusive evidence
thereof and which shall be evidenced by an Officers’ Certificate delivered to
the Trustee) of any other consideration payable in such tender offer. In the
event that the Company is obligated to purchase Common Shares pursuant to any
such tender offer, but the Company is permanently prevented by applicable law
from effecting any or all such purchases or any or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would have been in effect based upon the number of Common Shares
actually purchased. If the application of this Section 4.2(e) to any tender
offer would result in a decrease in the Conversion Rate, no adjustment shall be
made for such tender offer under this Section 4.2(e). For purposes of this
Section 4.2(e), the term “tender offer” shall mean and include both tender
offers and exchange offers, all references to “purchases” of shares in tender
offers (and all similar references) shall mean and include both the purchase of
shares in tender offers and the acquisition of shares pursuant to exchange
offers, and all references to “tendered shares” (and all similar references)
shall mean and include shares tendered in both tender offers and exchange
offers.



     (f) In any case in which this Section 4.2 shall require that an adjustment
be made following a Record Date, an announcement date or a determination date
or Expiration Date, as the case may be, established for purposes of this
Section 4.2, the Company may elect to defer (but only until five Business Days
following the filing by the Company with the Trustee of the certificate
described in Section 4.5) issuing to the Holder of any Convertible Note
converted after such Record Date or announcement date or determination date or
Expiration Date the Common Shares and other Capital Stock of the Company
issuable upon such conversion over and above the Common Shares and other
Capital Stock of the Company issuable upon such conversion only on the basis of
the Conversion Rate prior to adjustment; and, in lieu of the shares the
issuance of which is so defined, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence prepared by the Company
of the right to receive such shares. If any distribution in respect of which
an adjustment to the Conversion Rate is required to be made as of the Record
Date or announcement date or determination date or Expiration Date therefor is
not thereafter made or paid by the Company for any reason, the



-26-









 





Conversion Rate shall be readjusted to the Conversion Rate which would
then be in effect if such record date had not been fixed or such announcement
date or effective date or determination date or Expiration Date had not
occurred.



     (g) No adjustment shall be made pursuant to this Section 4.2 if the
Holders may participate in the transaction that would otherwise give rise to an
adjustment pursuant to this Section 4.2 without conversion of such Holder’s
Convertible Notes.



     SECTION 4.3 When Adjustment May Be Deferred.



     No adjustment in the Conversion Rate need be made unless the adjustment
would require an increase or decrease of at least 1% in the Conversion Rate.
Any adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.



     All calculations under this Article IV shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be.



     SECTION 4.4 When No Adjustment Required.



     No adjustment need be made for a transaction referred to in Section 4.2 or
4.8 if Holders of Convertible Notes are to participate in the transaction
without conversion on a basis and with notice that the Board of Directors of
the Company determines to be fair and appropriate in light of the basis and
notice on which holders of Common Shares participate in the transaction. No
adjustment need be made upon the issuance of any Common Shares pursuant to any
present or future plan providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional optional
amounts in Common Shares under any plan (including the Company’s existing
Dividend Reinvestment and Share Purchase Plan).



     No adjustment need be made upon the issuance of any Common Shares, options
to purchase Common Shares or phantom shares pursuant to any present or future
employee, officer, director or consultant benefit plan or program of or assumed
by the Company or any of its Subsidiaries.



     No adjustment need be made for a change in the par value or no par value
of the Common Shares or for any accrued and unpaid interest.



     To the extent the Convertible Notes become convertible pursuant to this
Article IV into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.



     SECTION 4.5 Notice of Adjustment.



     Whenever the Conversion Rate is adjusted, the Company shall promptly mail
to the Holders a notice of the adjustment. The Company shall file with the
Trustee and the Conversion Agent such notice and a certificate from the
Company’s independent public accountants briefly stating the facts requiring
the adjustment and the manner of computing it, The certificate shall be
conclusive evidence that the adjustment is correct. Neither the Trustee nor
any Conversion Agent shall be under any duty or responsibility with respect to
any such certificate except to exhibit the same to any Holder desiring
inspection thereof.



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     SECTION 4.6 Voluntary Increase.



     The Company from time to time may increase the Conversion Rate as the
Board of Trustees considers advisable to avoid or diminish any income tax to
holders of Common Shares or rights to purchase our Common Shares resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes. The Company may also, from time
to time, to the extent permitted by applicable law, increase the applicable
Conversion Rate by any amount for any period of at least 20 days if the Board
of Trustees has determined that such increase would be in the Company’s best
interests, which determination shall be conclusive. Whenever the Conversion
Rate is increased, the Company shall mail to Holders and file with the Trustee
and the Conversion Agent a notice of the increase. The Company shall mail the
notice at least 15 days before the date the increased Conversion Rate takes
effect. The notice shall state the increased Conversion Rate and the period it
will be in effect.



     SECTION 4.7 Notice of Certain Transactions.



     (a) Whenever any event described in Section 4.1 shall occur which shall
cause the Convertible Notes to become convertible into Common Shares, the
Company shall (i) promptly deliver in accordance with Sections 1.6 and 1.7 of
the Base Indenture, written notice of the convertibility of the Convertible
Notes to the Trustee and each Holder; and (ii) publicly announce that the
Convertible Notes have become convertible. Such written notice and public
announcement shall include a description of such event, a description of the
periods during which the Convertible Notes shall be convertible and the
procedures by which a Holder may convert its Convertible Notes.



     (b) If:




     (i) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 4.2 (unless no adjustment is to
occur pursuant to Section 4.4); or




     (ii) the Company takes any action that would require a supplemental
indenture pursuant to Section 4.8; or




     (iii) there is a liquidation or dissolution of the Company;



then the Company shall mail to Holders and file with the Trustee and the
Conversion Agent a notice stating the proposed Record Date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at
least 15 days before such date. Failure to file or mail the notice or any
defect in it shall not affect the validity of the transaction.



     SECTION 4.8 Reorganization of the Company; Special
Distributions.



     If the Company is a party to a transaction subject to Section 8.1 of the
Base Indenture (other than a sale of all or substantially all of the assets of
the Company in a transaction in which



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the holders of Common Shares immediately
prior to such transaction do not receive securities, cash or other assets of
the Company or any other person) or a merger or binding share exchange which
reclassifies or changes its outstanding Common Shares, the person obligated to
deliver securities, cash or other assets upon conversion of Convertible Notes
shall enter into a supplemental indenture. If the issuer of securities
deliverable upon conversion of Convertible Notes is an Affiliate of the
successor to the Company, that issuer shall join in the supplemental indenture.



     The supplemental indenture shall provide that the Holder of a Convertible
Note may convert it into the kind and amount of securities, cash or other
assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder had
converted the Convertible Note immediately before the effective date of the
transaction, assuming (to the extent applicable) that such Holder (i) was not a
constituent person or an Affiliate of a constituent person to such transaction;
(ii) made no election with respect thereto; and (iii) was treated alike with
the plurality of non-electing Holders. The supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be practical
to the adjustments provided for in this Article IV. The Company shall mail to
Holders a notice briefly describing the supplemental indenture.



     If this Section applies, Section 4.2 does not apply.



     If the Company makes a distribution to all holders of its Common Shares of
any of its assets, or debt securities or any rights, warrants or options to
purchase Convertible Notes of the Company that, but for the provisions of the
last paragraph of Section 4.4, would otherwise result in an adjustment in the
Conversion Rate pursuant to the provisions of Section 4.4, then, from and after
the record date for determining the holders of Common Shares entitled to
receive the distribution, a Holder of a Convertible Note that converts such
Convertible Note in accordance with the provisions of this Indenture shall upon
such conversion be entitled to receive, in addition to the shares of Common
Shares into which the Convertible Note is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the Convertible Note
immediately prior to the Record Date for determining the holders of Common
Shares entitled to receive the distribution.



     SECTION 4.9 Company Determination Final.



     Any determination that the Company or its Board of Trustees must make
pursuant to Section 4.1(d), 4.2, 4.3, 4.4, 4.8 or 4.11 is conclusive, absent
manifest error.



     SECTION 4.10 Trustee’s Adjustment Disclaimer.



     The Trustee has no duty to determine when an adjustment under this Article
IV should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 4.8 need be
entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall
not be accountable for and makes no representation as to the validity or value
of any securities or assets delivered upon conversion of Convertible Notes.
The Trustee shall not be responsible for the Company’s failure to comply with
this Article IV. Each Conversion Agent shall have the same protection under
this



-29-









 





Section 4.10 as the Trustee. Unless and until the Trustee receives a
certificate from the Company setting forth the particulars of an adjustment
under this Article IV, the Trustee may assume without inquiry that no such
adjustment has been, or is required to be, made.



     SECTION 4.11 Simultaneous Adjustments.



     In the event that this Article IV requires adjustments to the Conversion
Rate under more than one circumstance set forth in Sections 4.2 and the record
dates for the distributions giving rise to such adjustments shall occur on the
same date, then such adjustments shall be made by applying the provisions of
Section 4.2.



     SECTION 4.12 Successive Adjustments.



     After an adjustment to the Conversion Rate under this Article IV, any
subsequent event requiring an adjustment under this Article IV shall cause an
adjustment to the Conversion Rate as so adjusted.



     SECTION 4.13 Savings Provisions.



     Notwithstanding any other provision of this Indenture, the Company shall
not be obligated to convert Convertible Notes into Common Shares with respect
to any Holder to the extent that such conversion would result in a violation of
the “Ownership Limit” as defined in Article VIII of the Company’s Declaration
of Trust.



ARTICLE V




COVENANTS




     SECTION 5.1 Restriction on Subsidiary Indebtedness and Preferred
Stock.



     (a) The Company shall not permit the Partnership or any Subsidiary (i) to
incur unsecured Indebtedness, except for (A) Indebtedness payable to the
Company and (B) Indebtedness (not to exceed $4.4 million) issued in exchange
for, or the net proceeds of which are used to refinance, refund, repay or
defease, currently outstanding unsecured Indebtedness payable to third parties
in the amount of $4.4 million, or any refinancings thereof in an amount not to
exceed the amount so refinanced, refunded, repaid or defeased (plus premiums,
accrued interest, fees and expenses) or (ii) to guarantee unsecured
Indebtedness, unless in each case the Convertible Notes will rank pari passu,
with such Indebtedness.



     (b) The Company shall not permit the Partnership to issue, other than to
the Company, preferred units of partnership interest in the Partnership, unless
the Convertible Notes will rank senior to any such preferred units.



     (c) If the Partnership issues its Guarantee of the Convertible Notes in
accordance with the Section 3.1 of the Base Indenture, such Guarantee shall be
deemed to satisfy the foregoing conditions. Notwithstanding the foregoing, the
Company and the Trustee agree that the satisfaction of the provisions of the
immediately preceding sentence shall not be the



-30-









 





exclusive means of satisfying
the restrictions set forth in Section 5.1(a) and 5.1(b) of this Supplemental
Indenture.



     SECTION 5.2 Provision of Financial Information.



     (a) If the Company shall be required to file reports with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, it will file such reports
by the required date and, within 15 days of such date, deliver copies of all
such reports to the Trustee for, and transmit a copy to, each holder of the
Convertible Notes. If the Company is not required to file reports with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, it will deliver
to the Trustee and transmit to each holder of the Convertible Notes reports
that contain substantially the same kind of information that would have been
included in annual and quarterly reports filed with the Commission had the
Company been required to file such reports, such information to be delivered or
transmitted within 15 days after the same would have been required to be filed
with the Commission had the Company been required to file such reports.



     (b) Notwithstanding the foregoing, if the Company is not required to file
reports with the Commission because information about the Company is contained
in the reports filed by another entity with the Commission, the delivery to the
Trustee for the Convertible Notes of the reports filed by such entity with the
Commission and the transmittal by mail to all holders of the Convertible Notes
of each annual and quarterly report filed with the Commission by such entity
within the time periods set forth in the preceding sentence shall be deemed to
satisfy the Company’s obligations to provide financial information under the
applicable provisions of the Base Indenture.



ARTICLE VI




MISCELLANEOUS PROVISIONS




     SECTION 6.1 Ratification and Incorporation of Base
Indenture.



     As supplemented by this Supplemental Indenture, the Base Indenture is in
all respects ratified and confirmed, and the Base Indenture together with this
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.



     SECTION 6.2 Governing Law.



     This Supplement and the Convertible Notes shall be governed by, and
construed in accordance with, the laws of the state of New York (without
giving effect to the conflicts of laws principles thereof).



     SECTION 6.3 Counterparts.



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



-31-









 





     SECTION 6.4 Entire Agreement.



     This Supplemental Indenture, together with the Base Indenture, constitutes
the entire agreement between the parties hereto with respect to the subject
matter hereof, and fully supersedes any prior of contemporaneous agreements
relating to such subject matter.



[SIGNATURE PAGE FOLLOWS]




-32-









 








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



	 	 	 	 	 
	 	 	CAPITAL AUTOMOTIVE REIT,
	 	 	as Issuer
	 
	 	 	 	 
	 	 	By: /s/ Thomas D. Eckert
	

	 	 	 	

	 	 	Name: Thomas D. Eckert
	 	 	Title: President and Chief Executive Officer







	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION,
	 	 	as Trustee
	 
	 	 	 	 
	 	 	By: /s/ Joseph P. O’Donnell
	

	 	 	 	

	 	 	Name: Joseph P. O’Donnell
	 	 	Title: Assistant Vice President







[SECOND SUPPLEMENTAL TRUST INDENTURE]




 









 





GLOBAL SECURITY




6% CONVERTIBLE NOTES DUE MAY 15, 2024




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. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE
TRANSFERRED EXCEPT 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, 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 SUCH
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.



Exhibit A, Page 1





 










 





CAPITAL AUTOMOTIVE REIT




6% CONVERTIBLE NOTES DUE MAY 15, 2024




	 	 	 
	ISIN: US139733AB56
	 	 
	CUSIP No.: 139733AB5
	 	 
	Certificate No.

	 	U.S.$110,000,000







     Capital Automotive REIT, a real estate investment trust organized under
the laws of the State of Maryland (the “Company”), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of One Hundred Ten Million United States Dollars (U.S.$110,000,000) on May 15,
2024, unless prepaid prior thereto, together with accrued interest thereon at
the rate of 6% per annum.




	1.	 	Interest.





     Interest on this Convertible Note shall be due and payable in accordance
with the terms hereof and of the Indenture (defined below). Interest shall be
payable semi-annually in arrears on each May 15 and November 15, commencing on
November 15, 2004, to registered holders of the Convertible Notes on the last
day of the preceding month. Payments of interest on the Convertible Notes
shall include interest accrued to but excluding the respective Interest Payment
Dates. Interest payments for the Convertible Notes shall be computed and paid
on the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on the Convertible Notes is not a Business
Day, then payment of the interest payable on such date shall be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), with the same force and effect as if
made on the date the payment was originally payable.



     Any interest that is not punctually paid or duly provided for on an
Interest Payment Date shall forthwith cease to be payable to the Holders on the
Regular Record Date and may either be paid to the Person or Persons in whose
name the Convertible Notes are registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Convertible Notes not
less than ten days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange, if any, on which the Convertible Notes shall be listed,
and upon such notice as may be required by any such exchange, all as more fully
provided in the Indenture.




	2.	 	Method of Payment.





     Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the Redemption Price, Purchase Price, Change in
Control Purchase Price and the principal amount at Stated Maturity, as the case
may be, to the Holder who furnishes appropriate endorsements and transfer
documents relating to the Convertible Note, if required by the Paying Agent to
collect such payments in respect of the Convertible Note. The Company will pay
cash amounts in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
interest, the Redemption Price,



Exhibit A, Page 2









 




Purchase Price, Change in Control Purchase Price and the principal amount
at Stated Maturity, as the case may be, by check or wire payable in such money;
provided, however that a Holder holding Convertible Notes with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may
mail an interest check to the Holder’s registered address. Notwithstanding the
foregoing, so long as this Convertible Note is registered in the name of a
Depositary or its nominee, all payments hereon shall be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.





	3.	 	Paying Agent, Conversion Agent and Registrar.





     Initially, Wells Fargo Bank, National Association (the “Trustee”)
will act as Paying Agent, Conversion Agent, and Registrar. The Company may
appoint and change any Paying Agent, Conversion Agent or Registrar without
notice, other than notice to the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent or Registrar.




	4.	 	Indenture.





     This Note is one of a duly authorized issue of 6% Convertible Notes due
May 15, 2024 (the “Convertible Notes”) issued and to be issued under an
indenture dated as of April 15, 2004 (the “Base Indenture”), as
supplemented by the Second Supplemental Indenture dated May 12, 2004 (the
“Supplemental Indenture,” and collectively with the Base Indenture, the
“Indenture”), by and between the Company and Wells Fargo Bank, National
Association, as trustee (the “Trustee,” which term includes any
successor trustee as permitted under the Indenture). Reference is hereby made
to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Convertible Notes and the terms upon which the Convertible Notes
are, and are to be, authenticated and delivered.



     Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture.




	5.	 	Redemption at the Option of the Company.





     No sinking fund is provided for the Convertible Notes. The Convertible
Notes are not redeemable prior to May 15, 2009. On or after May 15, 2009, the
Convertible Notes are redeemable, at any time in whole or from time to time in
part, for a redemption price equal to 100% of the principal amount of the
Convertible Notes to be redeemed (“Redemption Price”) plus accrued and
unpaid interest up to but not including the Redemption Date; provided that, if
the Redemption Date is on or after a Regular Record Date but on or prior to the
related Interest Payment Date, interest will be payable to the Holders in whose
names the Convertible Notes are registered at the close of business on the
relevant Regular Record Date.




	6.	 	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 the Holder, all or any portion of
the Convertible Notes held



Exhibit A, Page 3









 




by such Holder, in any integral multiple of $1,000, on May 15, 2009, May
15, 2014 and May 15, 2019 (each, a “Purchase Date”) at a purchase price
equal to 100% of the aggregate principal amount of the Convertible Note (the
“Purchase Price”), together with accrued and unpaid interest up to but
not including the Purchase Date; provided that if the Purchase Date is on or
after a Regular Record Date but on or prior to the related Interest Payment
Date, interest will be payable to the Holders in whose names the Convertible
Notes are registered at the close of business on the relevant Regular Record
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 20
Business Days prior to such Purchase Date, and upon delivery of the Convertible
Notes to the Paying Agent by the Holder as set forth in the Indenture. The
Company shall be required to pay the Purchase Price in cash, provided, however,
that if an Accounting Event (as defined in the Indenture) has occurred, the
Company may elect to pay the Purchase Price in cash or Common Shares valued at
the Current Market Price.




     At the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase the Convertible Notes
held by such Holder 45 Business Days after the occurrence of a Change in
Control of the Company (the “Change in Control Purchase Date”), for a
purchase price equal to 100% of the principal amount thereof (the “Change in
Control Purchase Price”) plus accrued and unpaid interest up to but not
including the Change in Control Purchase Date, which Change in Control Purchase
Price shall be paid in cash.



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



     If cash sufficient to pay the Purchase Price or Change in Control Purchase
Price, as the case may be, and accrued and unpaid interest if any, of all
Convertible Notes or portions thereof to be purchased as of the Purchase Date
or the Change in Control Purchase Date, as the case may be, is deposited with
the Paying Agent on the Purchase Date or the Change in Control Purchase Date,
interest ceases to accrue on such Convertible Notes (or portions thereof) upon
such Purchase Date or Change in Control Purchase Date, and the Holder thereof
shall have no other rights as such other than the right to receive the Purchase
Price or Change in Control Purchase Price, as the case may be, upon surrender
of such Convertible Note.




	7.	 	Notice of Redemption.





     Notice of redemption pursuant to paragraph 5 of this Convertible Note will
be mailed at least 15 days but not more than 60 days before the Redemption Date
to each Holder of Convertible Notes to be redeemed at the Holder’s registered
address. If money sufficient to pay the Redemption Price of all Convertible
Notes (or portions thereof) to be redeemed on the Redemption Date is deposited
with the Paying Agent prior to or on the Redemption Date, immediately after
such Redemption Date interest ceases to accrue on such Convertible Notes or
portions thereof. Convertible Notes in denominations larger than $1,000 of
principal amount may be redeemed in part but only in integral multiples of
$1,000 of principal amount.



Exhibit A, Page 4









 






	8.	 	Conversion.





     A Holder of a Convertible Note may convert the principal amount of such
Convertible Note (or any portion thereof equal to $1,000 or any integral
multiple of $1,000 in excess thereof) into Common Shares on any Business Day,
subject to the conditions set forth in Section 4.1 of the Indenture; provided,
however, that if such Convertible Note is called for redemption or subject to
purchase upon a Change in Control or upon exercise of the purchase right
described in paragraph 6 above, the conversion right will terminate at the
close of business on the Business Day immediately preceding the Redemption
Date, the Change in Control Purchase Date or a Purchase Date, as the case may
be, for such Convertible Note or such earlier date as the Holder presents such
Convertible Note for redemption or purchase (unless the Company shall default
in paying the redemption payment, Change in Control Purchase Price or a
Purchase Price, as the case may be, when due, in which case the conversion
right shall terminate at the close of business on the date such default is
cured and such Convertible Note is redeemed or purchased, as the case may be).



     The initial conversion price is $35.5679. The initial Conversion Rate is
28.1152 Common Shares per $1,000 principal amount of Convertible Notes. The
number of Common Shares deliverable upon conversion of a Convertible Note is
determined by dividing (x) the principal amount of the Convertible Note, or the
portion thereof being converted, by (y) the Conversion Price in effect on the
Conversion Date.



     A Convertible Note in respect of which a Holder has delivered a Purchase
Notice or Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Convertible Note may be
converted only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture.



     To surrender a Convertible Note for conversion, a Holder must (i) complete
and manually sign a conversion notice (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (ii)
furnish appropriate endorsements and transfer documents, if required by the
Company, the Trustee or the Conversion Agent, (iii) pay any transfer or similar
tax, if required and (iv) in the case of a conversion pursuant to section
4.1(b)(1) of the Indenture, provide the Company with reasonable evidence that
the conditions to such conversion have been satisfied.




	9.	 	Denominations; Transfer; Exchange.





     This Note is a Global Security deposited with the Trustee as custodian for
The Depositary Trust Company (“DTC”) acting as Depositary, and
registered in the name of CEDE & CO., a nominee of DTC, and CEDE & CO., as
holder of record of this Convertible Note, shall be entitled to receive
payments of principal and interest by wire transfer of immediately available
funds. The statements in the legend relating to DTC set forth above are an
integral part of the terms of this Convertible Note and by acceptance thereof
each holder of this Note agrees to be subject to and bound by the terms and
provisions set forth in such legend, if any.



     The Convertible Notes may be issued in denominations of $1,000 of
principal amount and integral multiples of $1,000. A Holder may transfer or
exchange Convertible Notes in



Exhibit A, Page 5









 




accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not transfer or exchange any Convertible Notes selected for
redemption (except, in the case of a Convertible Note to be redeemed in part,
the portion of the Convertible Note not to be redeemed) or any Convertible
Notes in respect of which a Purchase Notice or a Change in Control Purchase
Notice has been given and not withdrawn (except, in the case of a Convertible
Note to be purchased in part, the portion of the Convertible Note not to be
purchased) or any Convertible Notes for a period of 15 days before the mailing
of a notice of redemption of Convertible Notes to be redeemed.





	10.	 	Persons Deemed Owners.





     The registered Holder of this Convertible Note may be treated as the owner
of this Convertible Note for all purposes.




	11.	 	Amendment; Waiver.





     Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Convertible Notes may be amended with the written consent of
the Holders of at least a majority in aggregate principal amount of the
Convertible Notes at the time outstanding and (ii) certain defaults or
noncompliance with certain provisions may be waived with the written consent of
the Holders of a majority in aggregate principal amount of the Convertible
Notes at the time outstanding. The Indenture or the Convertible Notes may be
amended without the consent of any Holders under circumstances set forth in
Section 9.1 of the Base Indenture.




	12.	 	Defaults and Remedies.





     Under the Indenture, Events of Default include (i) default for three days
in payment of any interest on any Convertible Notes, (ii) default in payment of
the principal amount, Redemption Price, Purchase Price or Change in Control
Purchase Price, as the case may be, in respect of the Convertible Notes when
the same becomes due and payable, (iii) default for 10 Business Days in
converting any Convertible Notes, (iv) failure by the Company to comply with
other agreements in the Indenture or the Convertible Notes, subject to notice
and lapse of time; (v) default by the Company under one or more agreements or
indentures under which the Company or certain related parties then has
outstanding indebtedness in excess of $10 million; and (vi) certain events of
bankruptcy or insolvency.



     Holders of Convertible Notes may not enforce the Indenture or the
Convertible Notes except as provided in the Indenture. The Trustee may refuse
to enforce the Indenture or the Convertible Notes unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority
in aggregate principal amount of the Convertible Notes at the time outstanding
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Convertible Notes notice of any continuing Default
(except a Default in payment of amounts specified in clause (i) or (ii) above)
if it determines that withholding notice is in their interests.




	13.	 	Authentication.





Exhibit A, Page 6









 





     This Convertible Note shall not be valid until an authorized signature of
the Trustee manually signs the Trustee’s Certificate of Authentication with
respect to this Convertible Note.



Exhibit A, Page 7









 





     IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.



Dated as of May 12, 2004.




CAPITAL AUTOMOTIVE REIT




	 	 	 	 	 
	By:

	 	

	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 







CERTIFICATE OF AUTHENTICATION




     This is one of the 6% Convertible Notes due May 15, 2024 referred to in
the within-mentioned Indenture.



WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE




	 	 	 	 	 
	By:

	 	

	 	 
	

	 	Authorized Signatory	 	 







Exhibit A, Page 8









 






ASSIGNMENT FORM



For value received                                                                                                                                                             



hereby sells, assigns and transfers unto



                                                                                                                                                                                                  



                                                                                                                                                                                                  



Please insert social security or

other identifying number of assignee



Please print or type name and address,

including zip code, of assignee:



                                                                                                                                                                                                  



                                                                                                                                                                                                  



                                                                                                                                                                                                  

                                                                                                                                                                                                  



the within Note and does hereby irrevocably constitute and appoint                    Attorney to
transfer the Note on the books of the Company with full power of substitution
in the premises.




	 	 	 
	Date:                     

	 	Your signature:                                                         
	

	 	(Sign exactly as your name
	

	 	appears on the Note)








Exhibit A, Page 9