AMERICAN REALTY CAPITAL PROPERTIES, INC.



AND



U.S. BANK NATIONAL ASSOCIATION,



as Trustee



FIRST SUPPLEMENTAL INDENTURE



Dated as of July 29, 2013


 


3.00% Convertible Senior Notes due 2018


 


 




    	 



    	 



    

 


TABLE OF CONTENTS





 



 


	 	 	Page
	 	 	 
	Article 1
	Definitions
	 	 	 
	Section 1.01.	Definitions	2
	Section 1.02.	References to Interest	13
	 	 	 
	Article 2
	Issue, Description, Execution, Registration and Exchange of Notes
	 	 	 
	Section 2.01.	Applicability of Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.11 of the Base Indenture	14
	Section 2.02.	Scope of Supplemental Indenture	14
	Section 2.03.	Designation and Amount	14
	Section 2.04.	Form of Notes	14
	Section 2.05.	Date and Denomination of Notes; Payments of Interest and Defaulted Amounts	15
	Section 2.06.	Execution, Authentication and Delivery of Notes	17
	Section 2.07.	Exchange and Registration of Transfer of Notes; Restrictions on Transfer; Depositary	17
	Section 2.08.	Mutilated, Destroyed, Lost or Stolen Notes	20
	Section 2.09.	Temporary Notes	21
	Section 2.10.	Cancellation of Notes Paid, Converted, Etc	21
	Section 2.11.	CUSIP Numbers	22
	Section 2.12.	Additional Notes; Repurchases	22
	 
	Article 3
	Satisfaction and Discharge
	 	 	 
	Section 3.01.	Satisfaction and Discharge	23
	 
	Article 4
	Particular Covenants of the Company
	 	 	 
	Section 4.01.	Provisions as to Paying Agent	23
	Section 4.02.	Existence	24
	Section 4.03.	Reports	25
	Section 4.04.	Stay, Extension and Usury Laws	25
	Section 4.05.	Compliance Certificate; Statements as to Defaults	25
	Section 4.06.	Further Instruments and Acts	25


 




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	Article 5
	[Intentionally Omitted]
	 	 	 
	Article 6
	Defaults and Remedies
	 	 	 
	Section 6.01.	Applicability of Article VI of the Base Indenture	26
	Section 6.02.	Events of Default	26
	Section 6.03.	Acceleration; Rescission and Annulment	27
	Section 6.04.	Additional Interest	28
	Section 6.05.	Payments of Notes on Default; Suit Therefor	29
	Section 6.06.	Application of Monies Collected by Trustee	30
	Section 6.07.	Proceedings by Holders	31
	Section 6.08.	Proceedings by Trustee	32
	Section 6.09.	Remedies Cumulative and Continuing	32
	Section 6.10.	Direction of Proceedings and Waiver of Defaults by Majority of Holders	33
	Section 6.11.	Notice of Defaults	33
	Section 6.12.	Undertaking to Pay Costs	33
	 	 	 
	Article 7
	[Intentionally Omitted]
	 
	Article 8
	[Intentionally Omitted]
	 
	Article 9
	Holders’ Meetings
	 	 	 
	Section 9.01.	Purpose of Meetings	34
	Section 9.02.	Call of Meetings by Trustee	34
	Section 9.03.	Call of Meetings by Company or Holders	35
	Section 9.04.	Qualifications for Voting	35
	Section 9.05.	Regulations	35
	Section 9.06.	Voting	36
	Section 9.07.	No Delay of Rights by Meeting	36
	 
	Article 10
	Supplemental Indentures
	 	 	 
	Section 10.01.	Supplemental Indentures Without Consent of Holders	36
	Section 10.02.	Supplemental Indentures with Consent of Holders	37


 




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	Article 11
	Consolidation, Merger, Sale, Conveyance and Lease
	 	 	 
	Section 11.01.	Applicability of Article X of the Base Indenture	38
	Section 11.02.	Company May Consolidate, Etc. on Certain Terms	39
	Section 11.03.	Successor Corporation to Be Substituted	39
	Section 11.04.	Opinion of Counsel to Be Given to Trustee	40
	 
	Article 12
	[Intentionally Omitted]
	 
	Article 13
	[Intentionally Omitted]
	 
	Article 14
	Conversion of Notes
	 	 	 
	Section 14.01.	Conversion Privilege	40
	Section 14.02.	Conversion Procedure; Settlement Upon Conversion.	43
	Section 14.03.	Increased Conversion Rate Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes	47
	Section 14.04.	Adjustment of Conversion Rate	49
	Section 14.05. 	Adjustments of Prices	59
	Section 14.06.	Shares to Be Fully Paid	59
	Section 14.07.	Effect of Recapitalizations, Reclassifications and Changes of the Common Stock.	59
	Section 14.08.	Certain Covenants	62
	Section 14.09.	Responsibility of Trustee	62
	Section 14.10.	Notice to Holders Prior to Certain Actions	63
	Section 14.11.	Stockholder Rights Plans	63
	Section 14.12.	Limit on Issuance of Shares of Common Stock Upon Conversion	64
	Section 14.13.	Ownership Limit	64
	 	 	 
	Article 15
	Repurchase of Notes at Option of Holders
	 	 	 
	Section 15.01.	[Intentionally Omitted].	64
	Section 15.02.	Repurchase at Option of Holders Upon a Fundamental Change	64
	Section 15.03.	Withdrawal of Fundamental Change Repurchase Notice	67
	Section 15.04.	Deposit of Fundamental Change Repurchase Price	67
	Section 15.05.	Covenant to Comply with Applicable Laws Upon Repurchase of Notes	68


 




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	Article 16
	Redemption to Preserve REIT Status
	 	 	 
	Section 16.01.	Applicability of Article III of the Base Indenture	68
	Section 16.02.	Redemption to Preserve REIT Status	68
	Section 16.03.	Notice of Redemption; Selection of Notes	69
	Section 16.04.	Payment of Notes Called for Redemption	70
	Section 16.05.	Restrictions on Redemption	70
	 	 	 
	Article 17
	Miscellaneous Provisions
	 	 	 
	Section 17.01.	Provisions Binding on Company’s Successors	71
	Section 17.02.	Official Acts by Successor Corporation	71
	Section 17.03.	Governing Law; Jurisdiction	71
	Section 17.04.	Legal Holidays	71
	Section 17.05.	No Security Interest Created	72
	Section 17.06.	Table of Contents, Headings, Etc	72
	Section 17.07.	Execution in Counterparts	72
	Section 17.08.	Severability	72
	Section 17.09.	Waiver of Jury Trial	72
	Section 17.10.	Force Majeure	72
	Section 17.11.	Calculations	72
	Section 17.12.	USA PATRIOT Act	73
	 	 	 
	EXHIBIT
	Exhibit A	Form of Note	A-1


  




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FIRST SUPPLEMENTAL INDENTURE dated as of
July 29, 2013 (this “Supplemental Indenture”) between AMERICAN REALTY CAPITAL PROPERTIES, INC., a Maryland corporation,
as issuer (the “Company,” as more fully set forth in Section 1.01) and U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as trustee (the “Trustee,” as more fully set forth in Section 1.01).


 


WITNESSETH:


 


WHEREAS, the Company and the Trustee executed
and delivered an Indenture, dated as of July 29, 2013 (the “Base Indenture” and as supplemented by this Supplemental
Indenture and as may be further supplemented or amended with respect to the Notes, the “Indenture”), to provide
for the issuance by the Company from time to time of its senior unsecured debt securities (the “Securities”);
and


 


WHEREAS, Section 2.01 and Section 9.01 of
the Base Indenture provide that the Company and the Trustee, at any time and from time to time, may enter into one or more indentures
supplemental to the Base Indenture, without the consent of any Securityholders, to, among other things, provide for the issuance
of and establish the form and terms and conditions of Securities of any series as permitted by the Base Indenture; and


 


WHEREAS, for its lawful corporate purposes,
the Company has duly authorized the issuance of its 3.00% Convertible Senior Notes due 2018 (the “Notes”), initially
in an aggregate principal amount not to exceed $300,000,000 (as increased by an amount equal to the aggregate principal amount
of any additional Notes purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the
Underwriting Agreement), and in order to provide the terms and conditions upon which the Notes are to be authenticated, issued
and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture; and


 


WHEREAS, the Form of Note, the certificate
of authentication to be borne by each Note, the Form of Notice of Conversion and the Form of Fundamental Change Repurchase Notice
to be borne by the Notes are to be substantially in the forms hereinafter provided; and


 


WHEREAS, the conditions set forth in the
Base Indenture for the execution and delivery of this Supplemental Indenture have been complied with; and


 


WHEREAS, all acts and things necessary to
make the Notes, when executed by the Company and authenticated and delivered by the Trustee or a duly authorized authenticating
agent, as in the Indenture provided, the valid, binding and legal obligations of the Company, and this Supplemental Indenture a
valid agreement according to its terms, have been done and performed, and the execution of this Supplemental Indenture and the
issuance hereunder of the Notes have in all respects been duly authorized.


 


NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE
WITNESSETH:


 




    	 



    	 



    

 


That in order to declare the terms and conditions
upon which the Notes are, and are to be, authenticated, issued and delivered, and in consideration of the premises and of the purchase
and acceptance of the Notes by the Holders thereof, the Company covenants and agrees with the Trustee for the equal and proportionate
benefit of the respective Holders from time to time of the Notes (except as otherwise provided below), as follows:


 


Article
1



Definitions


 


Section 1.01. Definitions. For all
purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:


 


(a)     the terms
defined in this Section 1.01 shall have the respective meanings assigned to them in this Section 1.01 and include the plural as
well as the singular and, to the extent applicable, supersede the definitions thereof in the Base Indenture;


 


(b)     all words,
terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base
Indenture; and


 


(c)     the words
“herein,” “hereof” and “hereunder” and other words of similar import (i) when used with
regard to any specified Article, Section or subdivision, refer to such Article, Section or subdivision of this Supplemental Indenture
and (ii) otherwise, refer to the Indenture as a whole and not to any particular Article, Section or subdivision.


 


“Additional Interest”
means all amounts, if any, payable pursuant to Section 6.04.


 


“Additional Shares” shall
have the meaning specified in Section 14.03(a).


 


“Affiliate” of any specified
Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person
means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.


 


“Base Indenture” shall
have the meaning specified in the first paragraph of the recitals of this Supplemental Indenture.


 


“Bid Solicitation Agent”
means the Person appointed by the Company to solicit bids for the Trading Price of the Notes in accordance with Section 14.01(b)(i).
The Trustee shall initially act as the Bid Solicitation Agent.


 




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“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, and to be in full force and effect on the date of such certification, and delivered to the Trustee.


 


“Business Day” means,
with respect to any Note, any day other than a Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is authorized
or required by law or executive order to close or be closed.


 


“Capital Stock” means,
for any entity, any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity.


 


“Cash Settlement” shall
have the meaning specified in Section 14.02(a).


 


“Clause A Distribution”
shall have the meaning specified in Section 14.04(c).


 


“Clause B Distribution”
shall have the meaning specified in Section 14.04(c).


 


“Clause C Distribution”
shall have the meaning specified in Section 14.04(c).


 


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


 


“Combination Settlement”
shall have the meaning specified in Section 14.02(a).


 


“Commission” means the
U.S. Securities and Exchange Commission.


 


“Common Equity” of any
Person means Capital Stock of such Person that is generally entitled (a) to vote in the election of directors of such Person or
(b) if such Person is not a corporation, to vote or otherwise participate in the selection of the governing body, partners, managers
or others that will control the management or policies of such Person.


 


“Common Stock” means
the common stock of the Company, par value $0.01 per share, at the date of this Supplemental Indenture, subject to Section 14.07.


 


“Company” shall have
the meaning specified in the first paragraph of this Supplemental Indenture, and subject to the provisions of Article 11, shall
include its successors and assigns.


 


“Company Order” means
a written order of the Company, signed by (a) the Company’s Chief Executive Officer, President, Executive or Senior Vice
President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title
“Vice President”) and (b) any such other Officer designated in clause (a) of this definition or the Company’s
Treasurer or Assistant Treasurer or Secretary or any Assistant Secretary, and delivered to the Trustee.


 




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“Continuing Director”
means a director who either was a member of the Board of Directors on July 23, 2013 or who becomes a member of the Board of Directors
subsequent to that date and whose election, appointment or nomination for election by the stockholders of the Company is duly approved
by a majority of the continuing directors on the Board of Directors at the time of such approval, either by a specific vote or
by approval of the proxy statement issued by the Company on behalf of the entire Board of Directors in which such individual is
named as nominee for director. Solely for purposes of this definition, the phrase “or any duly authorized committee of such
Board” of the definition of “Board of Directors” set forth in the Base Indenture shall be disregarded.


 


“Conversion Agent” means
the office or agency maintained by the Company pursuant to Section 4.02 of the Base Indenture where the Notes may be surrendered
for conversion.


 


“Conversion Date” shall
have the meaning specified in Section 14.02(c).


 


“Conversion Obligation”
shall have the meaning specified in Section 14.01(a).


 


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


 


“Conversion Rate” shall
have the meaning specified in Section 14.01(a).


 


“Corporate Trust Office”
means the office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date
hereof is located at (i) solely for purposes of Section 4.02 of the Base Indenture, Section 2.05(b) hereof, Section 2.07(a) hereof
and Section 14.01 hereof, 100 Wall Street, Suite 1600, New York, New York 10005, Attention: American Realty Capital Properties,
Inc. 3.00% Convertible Senior Notes due 2018, or (ii) otherwise, One Federal Street, 3rd Floor, Boston, Massachusetts
02110, Attention: American Realty Capital Properties, Inc. 3.00% Convertible Senior Notes due 2018, in each case, or such other
address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust
office of any successor trustee (or such other address as such successor trustee may designate from time to time by notice to the
Holders and the Company).


 


“Custodian” means the
Trustee, as custodian for The Depository Trust Company, with respect to the Global Notes, or any successor entity thereto.


 


“Daily Conversion Value”
means, for each of the 20 consecutive Trading Days during the Observation Period, 5% of the product of (a) the Conversion Rate
on such Trading Day and (b) the Daily VWAP for such Trading Day.


 


“Daily Measurement Value”
means the Specified Dollar Amount (if any), divided by 20.


 


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


 


(a)     cash
in an amount equal to the lesser of (i) the Daily Measurement Value and (ii) the Daily Conversion Value on such Trading Day; and


 




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(b)     if
the Daily Conversion Value on such Trading Day exceeds the Daily Measurement Value, a number of shares of Common Stock equal to
(i) the difference between the Daily Conversion Value and the Daily Measurement Value, divided by (ii) the Daily VWAP for
such Trading Day.


 


“Daily VWAP” means, for
each of the 20 consecutive Trading Days during the relevant Observation Period, the per share volume-weighted average price as
displayed under the heading “Bloomberg VWAP” on Bloomberg page “ARCP <equity> AQR” (or its equivalent
successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close
of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market
value of one share of the Common Stock on such Trading Day determined, using a volume-weighted average method, by a nationally
recognized independent investment banking firm retained for this purpose by the Company). The “Daily VWAP” shall
be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.


 


“Defaulted Amounts” means
any amounts on any Note (including, without limitation, the Redemption Price, the Fundamental Change Repurchase Price, principal
and interest) that are payable but are not punctually paid or duly provided for.


 


“Depositary” means,
with respect to each Global Note, the Person specified in  Section 2.07(c) as the Depositary with respect to such Notes,
until a successor shall have been appointed and become such pursuant to the applicable provisions of the Indenture, and
thereafter, “Depositary” shall mean or include such successor.


 


“Distributed Property”
shall have the meaning specified in Section 14.04(c).


 


“Effective Date” shall
have the meaning specified in Section 14.03(c), except that, as used in
Section 14.04, “Effective Date” means the first date on which shares of the Common Stock trade on the applicable
exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.


 


“Event of Default” shall
have the meaning specified in Section 6.01.


 


“Ex-Dividend Date” means
the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without
the right to receive the issuance, dividend or distribution in question, from the Company or, if applicable, from the seller of
Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by such exchange or market.


 


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


 




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“Form of Fundamental Change Repurchase
Notice” means the “Form of Fundamental Change Repurchase Notice” attached as Attachment 2 to the Form of
Note attached hereto as Exhibit A.


 


“Form of Note” means
the “Form of Note” attached hereto as Exhibit A.


 


“Form of Notice of Conversion”
means the “Form of Notice of Conversion” attached as Attachment 1 to the Form of Note attached hereto as Exhibit A.


 


“Fundamental Change”
shall be deemed to have occurred at the time after the Notes are originally issued if any of the following occurs:


 


(a)     a
“person” or “group” within the meaning of Section 13(d) of the Exchange Act, other than the Company, its
Wholly Owned Subsidiaries and the employee benefit plans of the Company and its Wholly Owned Subsidiaries, has become the direct
or indirect “beneficial owner,” as defined in Rule 13d-3 under the Exchange Act, of the Company’s Common Equity
representing more than 50% of the voting power of the Company’s Common Equity;


 


(b)     the
consummation of (A) any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision
or combination) as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other
property or assets; (B) any share exchange, consolidation or merger of the Company pursuant to which the Common Stock will be converted
into cash, securities or other property or assets; or (C) any sale, lease or other transfer in one transaction or a series of transactions
of all or substantially all of the consolidated assets of the Company and its Subsidiaries, taken as a whole, to any Person other
than one of the Company’s Wholly Owned Subsidiaries; provided, however, that a transaction described in clause (A)
or (B), (i) in which the holders of all classes of the Company’s Common Equity immediately prior to such transaction own,
directly or indirectly, more than 50% of all classes of Common Equity of the continuing or surviving corporation or transferee
or the parent thereof immediately after such transaction in substantially the same proportions as such ownership immediately prior
to such transaction or (ii) effectuated solely to change the Company’s jurisdiction of incorporation or to form a holding
company for the Company that results in (1) the surviving entity or the holding company becoming the sole obligor on the Notes,
(2) a reclassification or share exchange or similar exchange of the outstanding Common Stock into solely common equity in the surviving
entity that is listed or quoted on The New York Stock Exchange, The NASDAQ Global Select Market or The NASDAQ Global Market (or
their respective successors) and (3) such common equity becoming the Reference Property for the Notes as described in Section 14.07,
shall not be a Fundamental Change pursuant to this clause (b);


 


(c)     Continuing
Directors cease to constitute at least a majority of the Board of Directors;


 




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(d)     the
stockholders of the Company approve any plan or proposal for the liquidation or dissolution of the Company; or


 


(e)     the
Common Stock (or other common stock underlying the Notes) ceases to be listed or quoted on any of The New York Stock Exchange,
The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors);


 


provided, however, that a transaction or transactions
described in clause (a) or (b) above shall not constitute a Fundamental Change, if at least 90% of the consideration received or
to be received by the common stockholders of the Company, excluding cash payments for fractional shares, in connection with such
transaction or transactions consists of shares of common stock that are listed or quoted on any of The New York Stock Exchange,
The NASDAQ Global Select Market or The NASDAQ Global Market (or any of their respective successors) or will be so listed or quoted
when issued or exchanged in connection with such transaction or transactions and as a result of such transaction or transactions
the Notes become convertible into such consideration, excluding cash payments for fractional shares (subject to the provisions
of Section 14.02(a)). Solely for purposes of clause (c) above, the words “or any duly authorized committee of such Board”
in the definition of “Board of Directors” set forth in the Base Indenture shall be disregarded.


 


“Fundamental Change Company Notice”
shall have the meaning specified in Section 15.02(c).


 


“Fundamental Change Repurchase
Date” shall have the meaning specified in Section 15.02(a).


 


“Fundamental Change Repurchase
Notice” shall have the meaning specified in Section 15.02(b)(i).


 


“Fundamental Change Repurchase
Price” shall have the meaning specified in Section 15.02(a).


 


“Global Note” shall have
the meaning specified in Section 2.07(b).


 


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


 


“Indenture” shall have
the meaning specified in the first paragraph of the recitals of this Supplemental Indenture.


 


“Initial Dividend Threshold”
shall have the meaning specified in Section 14.04(d).


 


“Interest Payment Date”
means each February 1 and August 1 of each year, beginning on February 1, 2014.


 




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“Last Reported Sale Price”
of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of
the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common
Stock is traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant
date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter
market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted,
the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected
by the Company for this purpose.


 


“Make-Whole Fundamental Change”
means any transaction or event that constitutes a Fundamental Change (as defined above and determined after giving effect to any
exceptions to or exclusions from such definition, but without regard to the proviso in clause (b) of the definition thereof).


 


“Market Disruption Event”
means, for the purposes of determining amounts due upon conversion, (a) a failure by the primary U.S. national or regional securities
exchange or market on which the Common Stock is listed or admitted for trading to open for trading during its regular trading session
or (b) the occurrence or existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day for the Common Stock for
more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading
(by reason of movements in price exceeding limits permitted by the relevant stock exchange or otherwise) in the Common Stock or
in any options contracts or future contracts relating to the Common Stock.


 


“Maturity Date” means
August 1, 2018.


 


“Measurement Period”
shall have the meaning specified in Section 14.01(b)(i).


 


“Merger Common Stock”
shall have the meaning specified in Section 14.07(e)(i).


 


“Merger Event” shall
have the meaning specified in Section 14.07(a).


 


“Merger Valuation Percentage”
for any Merger Event shall be equal to (x) the arithmetic average of the Last Reported Sale Prices of one share of such Merger
Common Stock over the relevant Merger Valuation Period (determined as if references to “Common Stock” in the definition
of “Last Reported Sale Price” were references to the “Merger Common Stock” for such Merger Event), divided
by (y) the arithmetic average of the Last Reported Sale Prices of one share of Common Stock over the relevant Merger Valuation
Period.


 


“Merger Valuation Period”
for any Merger Event means the five consecutive Trading Day period immediately preceding, but excluding, the effective date for
such Merger Event.


 




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“Note” or “Notes”
shall have the meaning specified in the third paragraph of the recitals of this Supplemental Indenture.


 


“Note Register” shall
have the meaning specified in Section 2.07(a).


 


“Note Registrar” shall
have the meaning specified in Section 2.07(a).


 


“Notice of Conversion”
shall have the meaning specified in Section 14.02(b).


 


“Observation Period”
with respect to any Note surrendered for conversion means: (i) subject to clause (ii), if the relevant Conversion Date occurs prior
to February 1, 2018, the 20 consecutive Trading Day period beginning on, and including, the second Trading Day immediately succeeding
such Conversion Date; (ii) if the relevant Conversion Date occurs on or after the date of the Company’s issuance of a Redemption
Notice with respect to the Notes pursuant to Section 16.03 and prior to the relevant Redemption Date, the 20 consecutive Trading
Days beginning on, and including, the 22nd Scheduled Trading Day immediately preceding such Redemption Date; and (iii) subject
to clause (ii), if the relevant Conversion Date occurs on or after February 1, 2018, the 20 consecutive Trading Days beginning
on, and including, the 22nd Scheduled Trading Day immediately preceding the Maturity Date.


 


“Officer” means, with
respect to the Company, the President, the Chief Executive Officer, the Treasurer, the Secretary, any Executive or Senior Vice
President or any Vice President (whether or not designated by a number or numbers or word or words added before or after the title
“Vice President”).


 


“Officers’ Certificate,”
when used with respect to the Company, means a certificate that is delivered to the Trustee and that is signed by (a) two Officers
of the Company or (b) one Officer of the Company and one of the Treasurer, any Assistant Treasurer, the Secretary, any Assistant
Secretary or the Controller of the Company. Each such certificate shall include the statements provided for in Section
13.07 of the Base Indenture if and to the extent required by the provisions of such Section. One of the Officers giving
an Officers’ Certificate pursuant to Section 4.05 shall be the principal executive, financial or accounting officer of the
Company.


 


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


 


“Opinion of Counsel”
means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company, or other counsel acceptable
to the Trustee, that is delivered to the Trustee. Each such opinion shall include the statements provided for in Section 13.07
of the Base Indenture if and to the extent required by the provisions of such Section
13.07 of the Base Indenture.


 


“outstanding,” when used
with reference to Notes, shall, subject to the provisions of Section 8.04
of the Base Indenture, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under the Indenture,
except:


 




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(a)     Notes
theretofore canceled by the Trustee or accepted by the Trustee for cancellation;


 


(b)     Notes,
or portions thereof, that have become due and payable and in respect of which monies in the necessary amount shall have been deposited
in trust with the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent);


 


(c)     Notes
that have been paid pursuant to Section 2.08 or Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.08 unless proof satisfactory to the Trustee is presented that any
such Notes are held by protected purchasers in due course;


 


(d)     Notes
converted pursuant to Article 14 and required to be cancelled pursuant
to Section 2.10; and


 


(e)     Notes
repurchased by the Company pursuant to the penultimate sentence of Section 2.12.


 


“Paying Agent” means
the office or agency maintained by the Company pursuant to Section 4.02 of the Base Indenture where the Notes may be surrendered
for presentation for payment or repurchase.


 


“Person” means an individual,
a corporation, a limited liability company, an association, a partnership, a joint venture, a joint stock company, a trust, an
unincorporated organization or a government or an agency or a political subdivision thereof.


 


“Physical Notes” means
permanent certificated Notes in registered form issued in denominations of $1,000 principal amount and integral multiples thereof.


 


“Physical Settlement”
shall have the meaning specified in Section 14.02(a).


 


“Predecessor Note” of
any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular
Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.08 in lieu of or in exchange
for a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or
stolen Note that it replaces.


 


“Prospectus Supplement”
means the preliminary prospectus supplement dated July 23, 2013, as supplemented by the related pricing term sheet dated July 23,
2013, relating to the offering and sale of the Notes.


 


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


 




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“Redemption” shall have
the meaning specified in Section 16.01.


 


“Redemption Date” shall
have the meaning specified in Section 16.03.


 


“Redemption Notice” shall
have the meaning specified in Section 16.03.


 


“Redemption Price” means,
for any Notes to be redeemed pursuant to Section 16.01, 100% of the principal amount of such Notes, plus accrued and unpaid
interest, if any, to, but excluding, the Redemption Date (unless the Redemption Date falls after a Regular Record Date but on or
prior to the immediately succeeding Interest Payment Date, in which case interest accrued to the Interest Payment Date will be
paid to Holders of record of such Notes on such Regular Record Date, and the Redemption Price will be equal to 100% of the principal
amount of such Notes).


 


“Reference Property”
shall have the meaning specified in Section 14.07(a).


 


“Regular Record Date,”
with respect to any Interest Payment Date, means the January 15 or July 15 (whether or not such day is a Business Day) immediately
preceding the applicable February 1 or August 1 Interest Payment Date, respectively.


 


“REIT” means a “real
estate investment trust,” as defined in Subchapter M of the Internal Revenue Code of 1986, as amended.


 


“Responsible Officer”
means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of the Indenture.


 


“Scheduled Trading Day”
means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which
the Common Stock is listed or admitted for trading. If the Common Stock is not so listed or admitted for trading, “Scheduled
Trading Day” means a Business Day.


 


“Securities” shall have
the meaning specified in the first paragraph of the recitals of this Supplemental Indenture.


 


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


 




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“Settlement Amount” has
the meaning specified in Section 14.02(a)(iv).


 


“Settlement Method” means,
with respect to any conversion of Notes, Physical Settlement, Cash Settlement or Combination Settlement, as elected (or deemed
to have been elected) by the Company.


 


“Settlement Notice” has
the meaning specified in Section 14.02(a)(iii).


 


“Significant Subsidiary”
means a Subsidiary of the Company that meets the definition of “significant subsidiary” in Article 1, Rule 1-02 of
Regulation S-X under the Exchange Act.


 


“Specified Dollar Amount”
means the maximum cash amount per $1,000 principal amount of Notes to be received upon conversion as specified in the Settlement
Notice related to any converted Notes.


 


“Spin-Off” shall have
the meaning specified in Section 14.04(c).


 


“Stock Price” shall have
the meaning specified in Section 14.03(c).


 


“Successor Company” shall
have the meaning specified in Section 11.02(a).


 


“Supplemental Indenture”
shall have the meaning specified in the first paragraph of this Supplemental Indenture.


 


“Trading Day” means a
day on which (i) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs
on The NASDAQ Global Select Market or, if the Common Stock (or such other security) is not then listed on The NASDAQ Global Select
Market, on the principal other U.S. national or regional securities exchange on which the Common Stock (or such other security)
is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange,
on the principal other market on which the Common Stock (or such other security) is then traded and (ii) a Last Reported Sale Price
for the Common Stock (or such other security) is available on such securities exchange or market; provided that if the Common
Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day; and provided,
further, that for purposes of determining amounts due upon conversion only, “Trading Day” means a day
on which (x) there is no Market Disruption Event and (y) trading in the Common Stock generally occurs on The NASDAQ Global Select
Market or, if the Common Stock is not then listed on The NASDAQ Global Select Market, on the principal other U.S. national or regional
securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional
securities exchange, on the principal other market on which the Common Stock is then listed or admitted for trading, except that
if the Common Stock is not so listed or admitted for trading, “Trading Day” means a Business Day.


 




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“Trading Price” of the
Notes on any date of determination means the average of the secondary market bid quotations obtained by the Bid Solicitation Agent
for $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from three
independent nationally recognized securities dealers the Company selects for this purpose and whose names the Company provides
to the Bid Solicitation Agent; provided that if three such bids cannot reasonably be obtained by the Bid Solicitation Agent
but two such bids are obtained, then the average of the two bids shall be used, and if only one such bid can reasonably be obtained
by the Bid Solicitation Agent, that one bid shall be used. If the Bid Solicitation Agent cannot reasonably obtain at least one
bid for $5,000,000 principal amount of Notes from a nationally recognized securities dealer on any determination date, then the
Trading Price per $1,000 principal amount of Notes on such determination date shall be deemed to be less than 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate.


 


“Trigger Event” shall
have the meaning specified in Section 14.04(c).


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as it was in force at the date of execution of this Supplemental Indenture;
provided, however, that in the event the Trust Indenture Act of 1939 is amended after the date hereof, the term “Trust
Indenture Act” shall mean, to the extent required by such amendment, the Trust Indenture Act of 1939, as so amended.


 


“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Supplemental Indenture until a successor trustee shall
have become such pursuant to the applicable provisions of the Indenture, and thereafter “Trustee” shall mean
or include each Person who is then a Trustee hereunder.


 


“Underwriters” means
J.P. Morgan Securities LLC, Citigroup Global Markets Inc., Barclays Capital Inc., BMO Capital Markets Corp., KeyBanc Capital Markets
Inc., JMP Securities LLC, Ladenburg Thalmann & Co. Inc. and RCS Capital.


 


“Underwriting Agreement”
means that certain Underwriting Agreement, dated as of July 23, 2013, among the Company and the Underwriters.


 


“unit of Reference Property”
shall have the meaning specified in Section 14.07(a).


 


“Valuation Period” shall
have the meaning specified in Section 14.04(c).


 


“Wholly Owned Subsidiary”
means, with respect to any Person, any Subsidiary of such Person, except that, solely for purposes of this definition, each reference
to “at least a majority” in the definition of “Subsidiary” set forth in the Base Indenture shall be deemed
replaced by a reference to “100%”.


 


Section 1.02. References to Interest.
Unless the context otherwise requires, any reference to interest on, or in respect of, any Note in the Indenture shall be deemed
to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to Section 6.04. Unless
the context otherwise requires, any express mention of Additional Interest in any provision hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is not made.


 




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Article
2



Issue, Description, Execution, Registration and Exchange of Notes


 


Section 2.01. Applicability of Sections
2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.11 of the Base Indenture. Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08
and 2.11 of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 2 shall, with respect
to the Notes, supersede in their entirety Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.11 of the Base Indenture, and
all references in the Base Indenture to Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08 and 2.11 of the Base Indenture shall,
with respect to the Notes, be deemed to be references to the applicable provisions set forth in this Article 2.


 


Section 2.02. Scope of Supplemental Indenture.
This Supplemental Indenture amends and supplements the provisions of the Base Indenture, to which provisions reference is hereby
made. The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable
only with respect to, and shall only govern the terms of, the Notes, which may be issued from time to time in accordance herewith,
and shall not apply to any other Securities that may be issued under the Base Indenture unless a supplemental indenture with respect
to such other Securities specifically incorporates such changes, modifications and supplements. For all purposes under the Base
Indenture, the Notes shall constitute a single series of Securities, and with regard to any matter requiring the consent under
the Base Indenture of Securityholders of multiple series of Securities voting together as a single class, the consent of Holders
of the Notes voting as a separate class shall also be required and the same threshold shall apply. The provisions of this Supplemental
Indenture shall supersede any conflicting provisions in the Base Indenture.


 


Section 2.03. Designation and Amount.
The Notes shall be designated as the “3.00% Convertible Senior Notes due 2018.” The aggregate principal amount of Notes
that may be authenticated and delivered under the Indenture is initially limited to $300,000,000 (as increased by an amount equal
to the aggregate principal amount of any additional Notes purchased by the Underwriters pursuant to the exercise of their over-allotment
option as set forth in the Underwriting Agreement), subject to Section 2.12 and except for Notes authenticated and delivered upon
registration or transfer of, or in exchange for, or in lieu of other Notes pursuant to Section 2.07, Section 2.08, Section 2.09,
Section 14.02 and Section 15.04 hereof and Section 9.04 of the Base Indenture.


 


Section 2.04. Form of Notes. The
Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the respective
forms set forth in Exhibit A, the terms and provisions of which shall constitute, and are hereby expressly incorporated in and
made a part of the Indenture. To the extent applicable, the Company and the Trustee, by their execution and delivery of the Indenture,
expressly agree to such terms and provisions and to be bound thereby.


 




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Any Global Note may be endorsed with or
have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of the Indenture
as may be required by the Custodian or the Depositary, or as may be required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange or automated quotation system upon which the Notes may
be listed or traded or designated for issuance or to conform with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.


 


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


 


Each Global Note shall represent such principal
amount of the outstanding Notes as shall be specified therein and shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be increased or reduced to reflect redemptions, repurchases, cancellations, conversions, transfers
or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the amount
of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in such
manner and upon instructions given by the Holder of such Notes in accordance with the Indenture. Payment of principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, a Global
Note shall be made to the Holder of such Note on the date of payment, unless a record date or other means of determining Holders
eligible to receive payment is provided for herein.


 


Section 2.05. Date and Denomination of
Notes; Payments of Interest and Defaulted Amounts. (a) The Notes shall be issuable in registered form without coupons in denominations
of $1,000 principal amount and integral multiples thereof. Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of such Note. Accrued interest on the Notes shall be computed on the basis of a 360-day
year composed of twelve 30-day months and, for partial months, on the basis of actual days elapsed over a 30-day month.


 




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(b)     The Person
in whose name any Note (or its Predecessor Note) is registered on the Note Register at the close of business on any Regular Record
Date with respect to any Interest Payment Date shall be entitled to receive the interest payable on such Interest Payment Date.
Interest shall be payable at the office or agency of the Company maintained by the Company for such purposes in the Borough of
Manhattan, The City of New York, which shall initially be the Corporate Trust Office. The Company shall pay interest (i) on any
Physical Notes (A) to Holders holding Physical Notes having an aggregate principal amount of $5,000,000 or less, by check mailed
to the Holders of these Notes at their address as it appears in the Note Register and (B) to Holders holding Physical Notes having
an aggregate principal amount of more than $5,000,000, either by check mailed to each Holder or, upon application by such a Holder
to the Note Registrar not later than the relevant Regular Record Date, by wire transfer in immediately available funds to that
Holder’s account within the United States, which application shall remain in effect until the Holder notifies, in writing,
the Note Registrar to the contrary or (ii) on any Global Note by wire transfer of immediately available funds to the account of
the Depositary or its nominee.


 


(c)     Any Defaulted
Amounts shall forthwith cease to be payable to the Holder on the relevant payment date but shall accrue interest per annum at the
rate borne by the Notes plus one percent, subject to the enforceability thereof under applicable law, from, and including,
such relevant payment date, and such Defaulted Amounts together with such interest thereon shall be paid by the Company, at its
election in each case, as provided in clause (i) or (ii) below:


 


(i)     The
Company may elect to make payment of any Defaulted Amounts to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for the payment of such Defaulted Amounts, which shall
be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of the Defaulted Amounts proposed
to be paid on each Note and the date of the proposed payment (which shall be not less than 25 days after the receipt by the Trustee
of such notice, unless the Trustee shall consent to an earlier date), and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount to be paid in respect of such Defaulted Amounts or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Amounts as in this clause provided. Thereupon the Company shall fix a
special record date for the payment of such Defaulted Amounts which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment, and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment.
The Company shall promptly notify the Trustee of such special record date and the Trustee, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Amounts and the special record date therefor to be mailed,
first-class postage prepaid, to each Holder at its address as it appears in the Note Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted Amounts and the special record date therefor having been
so mailed, such Defaulted Amounts shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on such special record date and shall no longer be payable pursuant to the following clause
(ii) of this Section 2.05(c).


 


(ii)     The
Company may make payment of any Defaulted Amounts in any other lawful manner not inconsistent with the requirements of any securities
exchange or automated quotation system on which the Notes may be listed or designated for issuance, and upon such notice as may
be required by such exchange or automated quotation system, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.


 




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Section 2.06. Execution, Authentication
and Delivery of Notes. The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile signature
of its Chief Executive Officer, President, Chief Financial Officer, Treasurer, Secretary or any of its Executive or Senior Vice
Presidents.


 


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


 


Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the form of Note attached as Exhibit A hereto, executed manually
or by facsimile by an authorized officer of the Trustee (or an authenticating agent appointed by the Trustee as provided by Section
2.10 of the Base Indenture), shall be entitled to the benefits of the Indenture or be valid or obligatory for any purpose.
Such certificate by the Trustee (or such an authenticating agent) upon any Note executed by the Company shall be conclusive evidence
that the Note so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits
of the Indenture.


 


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


 


Section 2.07. Exchange and Registration
of Transfer of Notes; Restrictions on Transfer; Depositary. (a) The Company shall cause to be kept at the Corporate Trust Office
a register (the register maintained in such office or in any other office or agency of the Company designated pursuant to Section
4.02 of the Base Indenture, the “Note Register”) in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Notes and of transfers of Notes. Such register shall be in
written form or in any form capable of being converted into written form within a reasonable period of time. The Trustee is hereby
initially appointed the “Note Registrar” for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-Note Registrars in accordance with Section
4.02 of the Base Indenture.


 




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Upon surrender for registration of transfer
of any Note to the Note Registrar or any co-Note Registrar, and satisfaction of the requirements for such transfer set forth in
this Section 2.07, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by the Indenture.


 


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


 


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


 


No service charge shall be imposed by the
Company, the Trustee, the Note Registrar, any co-Note Registrar or the Paying Agent for any exchange or registration of transfer
of Notes, but the Company may require a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer
tax required in connection therewith as a result of the name of the Holder of new Notes issued upon such exchange or registration
of transfer being different from the name of the Holder of the old Notes surrendered for exchange or registration of transfer.


 


None of the Company, the Trustee, the Note
Registrar or any co-Note Registrar shall be required to exchange or register a transfer of (i) any Notes surrendered for conversion
or, if a portion of any Note is surrendered for conversion, such portion thereof surrendered for conversion, (ii) any Notes, or
a portion of any Note, surrendered for repurchase (and not withdrawn) in accordance with Article 15
or (iii) any Notes, or a portion of any Note, selected for redemption in accordance with Article 16.


 


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


 


(b)     So
long as the Notes are eligible for book-entry settlement with the Depositary, unless otherwise required by law, subject
to the fourth paragraph from the end of Section 2.07(c), all Notes shall be represented by one or more Notes in
global form (each, a “Global Note”) registered in the name of the Depositary or the nominee of the
Depositary. The transfer and exchange of beneficial interests in a Global Note that does not involve the issuance of a
Physical Note shall be effected through the Depositary (but not the Trustee or the Custodian) in accordance with the
Indenture (including the restrictions on transfer set forth herein) and the procedures of the Depositary therefor.


 




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(c)     Notwithstanding
any other provisions of the Indenture (other than the provisions set forth in this Section 2.07(c)), Global
Note may not be transferred as a whole or in part except (i) 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 by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary and (ii) for transfers of portions of a Global Note in certificated form
made upon request of a member of, or a participant in, the Depositary (for itself or on behalf of a beneficial owner) by written
notice given to the Trustee by or on behalf of the Depositary in accordance with customary procedures of the Depositary and in
compliance with this Section 2.07(c) .


 


The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints The Depository Trust Company to act as Depositary with respect
to each Global Note. Initially, each Global Note shall be issued to the Depositary, registered in the name of Cede & Co., as
the nominee of the Depositary, and deposited with the Trustee as custodian for Cede & Co.


 


If (i) the Depositary notifies the Company
at any time that the Depositary is unwilling or unable to continue as depositary for the Global Notes and a successor depositary
is not appointed within 90 days, (ii) the Depositary ceases to be registered as a clearing agency under the Exchange Act and a
successor depositary is not appointed within 90 days or (iii) an Event of Default with respect to the Notes has occurred and is
continuing and a beneficial owner of any Note requests that its beneficial interest therein be issued as a Physical Note, the Company
shall execute, and the Trustee, upon receipt of an Officers’ Certificate and a Company Order for the authentication and delivery
of Notes, shall authenticate and deliver (x) in the case of clause (iii), a Physical Note to such beneficial owner in a principal
amount equal to the principal amount of such Note corresponding to such beneficial owner’s beneficial interest and (y) in
the case of clause (i) or (ii), Physical Notes to each beneficial owner of the related Global Notes (or a portion thereof) in an
aggregate principal amount equal to the aggregate principal amount of such Global Notes in exchange for such Global Notes, and
upon delivery of the Global Notes to the Trustee such Global Notes shall be canceled.


 


Physical Notes issued in exchange for all
or a part of the Global Note pursuant to this Section 2.07(c) 
shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee. Upon execution and authentication, the Trustee shall deliver
such Physical Notes to the Persons in whose names such Physical Notes are so registered.


 


At such time as all interests in a Global
Note have been converted, canceled, repurchased or transferred, such Global Note shall be, upon receipt thereof, canceled by the
Trustee in accordance with standing procedures and existing instructions between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Note is exchanged for Physical Notes, converted, canceled, repurchased
or transferred to a transferee who receives Physical Notes therefor or any Physical Note is exchanged or transferred for part of
such Global Note, the principal amount of such Global Note shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced or increased, as the case may be, and an endorsement shall be
made on such Global Note, by the Trustee or the Custodian, at the direction of the Trustee, to reflect such reduction or increase.


 




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None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.


 


(d)     Any Note
or Common Stock issued upon the conversion or exchange of a Note that is repurchased or owned by any Affiliate of the Company (or
any Person who was an Affiliate of the Company at any time during the three months preceding) may not be resold by such Affiliate
(or such Person, as the case may be) unless registered under the Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction that results in such Note or Common Stock, as the case may be, no longer being
a “restricted security” (as defined under Rule 144 under the Securities Act). The Company shall cause any Note that
is repurchased or owned by it to be surrendered to the Trustee for cancellation in accordance with Section 2.10.


 


Section 2.08. Mutilated, Destroyed, Lost
or Stolen Notes. In case any Note shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may
execute, and upon its written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Note, bearing a registration number not contemporaneously outstanding, in exchange and substitution for the mutilated Note,
or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note
shall furnish to the Company, to the Trustee and, if applicable, to such authenticating agent such security or indemnity as may
be required by them to save each of them harmless from any loss, liability, cost or expense caused by or connected with such substitution,
and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable,
to such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such Note and of the ownership
thereof.


 


The Trustee or such authenticating agent
may authenticate any such substituted Note and deliver the same upon the receipt of such security or indemnity as the Trustee,
the Company and, if applicable, such authenticating agent may require. No service charge shall be imposed by the Company, the Trustee,
the Note Registrar, any co-Note Registrar or the Paying Agent upon the issuance of any substitute Note, but the Company may require
a Holder to pay a sum sufficient to cover any documentary, stamp or similar issue or transfer tax required in connection therewith
as a result of the name of the Holder of the new substitute Note being different from the name of the Holder of the old Note that
became mutilated or was destroyed, lost or stolen. In case any Note that has matured or is about to mature or has been surrendered
for required repurchase or is about to be converted in accordance with Article 14 shall become mutilated or be destroyed, lost
or stolen, the Company may, in its sole discretion, instead of issuing a substitute Note, pay or authorize the payment of or convert
or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and, if applicable, to such authenticating
agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense
caused by or connected with such substitution, and, in every case of destruction, loss or theft, evidence satisfactory to the Company,
the Trustee and, if applicable, any Paying Agent or Conversion Agent evidence of their satisfaction of the destruction, loss or
theft of such Note and of the ownership thereof.


 




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Every substitute Note issued pursuant to
the provisions of this Section 2.08 by virtue of the fact that any Note is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any time, and shall
be entitled to all the benefits of (but shall be subject to all the limitations set forth in) the Indenture equally and proportionately
with any and all other Notes duly issued hereunder. To the extent permitted by law, all Notes shall be held and owned upon the
express condition that the foregoing provisions are exclusive with respect to the replacement, payment, redemption, conversion
or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to the replacement, payment, redemption, conversion
or repurchase of negotiable instruments or other securities without their surrender.


 


Section 2.09. Temporary Notes. Pending
the preparation of Physical Notes, the Company may execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon written request of the Company, authenticate and deliver temporary Notes (printed or lithographed). Temporary Notes
shall be issuable in any authorized denomination, and substantially in the form of the Physical Notes but with such omissions,
insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Company. Every such temporary
Note shall be executed by the Company and authenticated by the Trustee or such authenticating agent upon the same conditions and
in substantially the same manner, and with the same effect, as the Physical Notes. Without unreasonable delay, the Company shall
execute and deliver to the Trustee or such authenticating agent Physical Notes (other than any Global Note) and thereupon any or
all temporary Notes (other than any Global Note) may be surrendered in exchange therefor, at each office or agency maintained by
the Company pursuant to Section 4.02 of the Base Indenture and
the Trustee or such authenticating agent shall authenticate and deliver in exchange for such temporary Notes an equal aggregate
principal amount of Physical Notes. Such exchange shall be made by the Company at its own expense and without any charge therefor.
Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits and subject to the same limitations
under the Indenture as Physical Notes authenticated and delivered hereunder.


 


Section 2.10. Cancellation of Notes Paid,
Converted, Etc. The Company shall cause all Notes surrendered for the purpose of payment, repurchase, redemption, registration
of transfer or exchange or conversion, if surrendered to any Person other than the Trustee (including any of the Company’s
agents, Subsidiaries or controlled Affiliates), to be surrendered to the Trustee for cancellation. All Notes delivered to the Trustee
shall be canceled promptly by it, and no Notes shall be authenticated in exchange thereof except as expressly permitted by any
of the provisions of the Indenture. The Trustee shall dispose of canceled Notes in accordance with its customary procedures and,
after such disposition, shall deliver a certificate of such disposition to the Company, at the Company’s written request
in a Company Order.


 




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Section 2.11. CUSIP Numbers. The
Company in issuing the Notes may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
“CUSIP” numbers in all notices issued to Holders as a convenience to such Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers either as printed on the Notes or on such notice
and that reliance may be placed only on the other identification numbers printed on the Notes. The Company shall promptly notify
the Trustee in writing of any change in the “CUSIP” numbers.


 


Section 2.12. Additional Notes; Repurchases.
The Company may, without the consent of the Holders and notwithstanding Section 2.01, reopen the Indenture and issue additional
Notes hereunder with the same terms as the Notes initially issued hereunder (other than differences in the issue price and interest
accrued prior to the issue date of such additional Notes) in an unlimited aggregate principal amount; provided that if any
such additional Notes are not fungible with the Notes initially issued hereunder for U.S. federal income tax purposes, such additional
Notes shall have a separate CUSIP number. Prior to the issuance of any such additional Notes, the Company shall deliver to the
Trustee a Company Order, an Officers’ Certificate and an Opinion of Counsel, such Officers’ Certificate and Opinion
of Counsel to cover such matters, in addition to those required by Section
13.07 of the Base Indenture, as the Trustee shall reasonably request. In addition, the Company may, to the extent permitted
by law, and directly or indirectly (regardless of whether such Notes are surrendered to the Company), repurchase Notes in the open
market or otherwise, whether by the Company or its Subsidiaries or through a private or public tender or exchange offer or through
counterparties to private agreements, including by cash-settled swaps or other derivatives. The Company shall cause any Notes so
repurchased (other than Notes repurchased pursuant to cash-settled swaps or other derivatives) to be surrendered to the Trustee
for cancellation in accordance with Section 2.10.


 




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Article
3



Satisfaction and Discharge


 


Section 3.01. Satisfaction and Discharge.
Article XI of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Section 3.01 shall, with
respect to the Notes, supersede in its entirety Article XI of the Base Indenture, and all references in the Base Indenture to Article
XI thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this
Section 3.01 and the applicable provisions set forth in this Section 3.01, respectively. The Indenture shall upon request of the
Company contained in an Officers’ Certificate cease to be of further effect, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of the Indenture, when (a) (i) all Notes theretofore
authenticated and delivered (other than (x) Notes which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.08 and (y) Notes for whose payment money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 4.01(d)) have
been delivered to the Trustee for cancellation; or (ii) the Company has deposited with the Trustee or delivered to Holders, as
applicable, after the Notes have become due and payable, whether on the Maturity Date, any Redemption Date, any Fundamental Change
Repurchase Date, upon conversion or otherwise, cash or cash, shares of Common Stock or a combination thereof, as applicable, solely
to satisfy the Company’s Conversion Obligation, sufficient to pay all of the outstanding Notes and all other sums due and
payable under the Indenture by the Company; and (b) the Company has delivered to the Trustee an Officers’ Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge
of the Indenture have been complied with. Notwithstanding the satisfaction and discharge of the Indenture, the obligations of the
Company to the Trustee under Section 7.07 of the Base Indenture shall survive.


 


Article
4



Particular Covenants of the Company


 


Section 4.01. Provisions as to Paying
Agent. This Section 4.01 shall supersede Section 4.03 of the Base
Indenture, and any reference in the Base Indenture to Section 4.03 thereof shall be deemed to refer instead to this Section
4.01.  (a) If the Company shall appoint a Paying Agent other than
the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 4.01:


 


(i)     that
it will hold all sums held by it as such agent for the payment of the principal (including the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes in trust for the benefit of the Holders
of the Notes;


 


(ii)     that
it will give the Trustee prompt notice of any failure by the Company to make any payment of the principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes when the same
shall be due and payable; and


 


(iii)     that
at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all
sums so held in trust.


 


The Company shall, on or before each due
date of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued
and unpaid interest on, the Notes, deposit with the Paying Agent a sum sufficient to pay such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) or accrued and unpaid interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of any failure to take such action; provided that if such deposit
is made on the due date, such deposit must be received by the Paying Agent by 11:00 a.m., New York City time, on such date.


 




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(b)     If the
Company shall act as its own Paying Agent, it will, on or before each due date of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, and accrued and unpaid interest on, the Notes, set aside, segregate
and hold in trust for the benefit of the Holders of the Notes a sum sufficient to pay such principal (including the Redemption
Price and the Fundamental Change Repurchase Price, if applicable) and accrued and unpaid interest so becoming due and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company to make any payment of the principal
(including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest
on, the Notes when the same shall become due and payable.


 


(c)     Anything
in this Section 4.01 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction
and discharge of the Indenture, or for any other reason, pay, cause to be paid or deliver to the Trustee all sums or amounts held
in trust by the Company or any Paying Agent hereunder as required by this Section 4.01, such sums or amounts to be held by the
Trustee upon the trusts herein contained and upon such payment or delivery by the Company or any Paying Agent to the Trustee, the
Company or such Paying Agent shall be released from all further liability but only with respect to such sums or amounts.


 


(d)     Any money
and shares of Common Stock deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment
of the principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, accrued and unpaid
interest on and the consideration due upon conversion of any Note and remaining unclaimed for two years after such principal (including
the Redemption Price and the Fundamental Change Repurchase Price, if applicable), interest or consideration due upon conversion
has become due and payable shall be paid to the Company on request of the Company contained in an Officers’ Certificate,
or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such trust money and shares of Common Stock, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business
Day and of general circulation in The Borough of Manhattan, The City of New York, notice that such money and shares of Common Stock
remain unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money and shares of Common Stock then remaining will be repaid or delivered to the Company.


 


Section 4.02. Existence. Subject
to Article 11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence.


 




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Section 4.03. Reports. (a) The Company
shall file with the Trustee, within 15 days after the same are required to be filed with the Commission, copies of any documents
or reports that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving
effect to any grace period provided by Rule 12b-25 under the Exchange Act). Any such document or report that the Company files
with the Commission via the Commission’s EDGAR system shall be deemed to be filed with the Trustee for purposes of this Section
4.03 at the time such documents are filed via the EDGAR system.


 


(b)     Delivery
of the reports and documents described in subsection Section 4.03 above to the Trustee is for informational purposes only, and
the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable
from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely on an Officers’ Certificate).


 


Section 4.04. Stay, Extension and Usury
Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture; and the Company
(to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will
not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.


 


Section 4.05. Compliance Certificate;
Statements as to Defaults. In addition to Section 4.06 of the Base Indenture, the Company shall deliver to the Trustee, as
soon as possible, and in any event within 30 days after the occurrence of any Event of Default or Default, an Officers’ Certificate
setting forth the details of such Event of Default or Default, its status and the action that the Company is taking or proposing
to take in respect thereof.


 


Section 4.06. Further Instruments and
Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and do such further acts as
may be reasonably necessary or proper to carry out more effectively the purposes of the Indenture.


 


Article
5



[Intentionally Omitted]


 




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Article
6



Defaults and Remedies


 


Section 6.01. Applicability of Article
VI of the Base Indenture. Article VI of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth
in this Article 6 shall, with respect to the Notes, supersede in its entirety Article VI of the Base Indenture, and all references
in the Base Indenture to Article VI thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be
deemed to be references to this Article 6 and the applicable provisions set forth in this Article 6, respectively.


 


Section 6.02. Events of Default.
Each of the following events shall be an “Event of Default” with respect to the Notes:


 


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


 


(b)     default
in the payment of principal of any Note when due and payable on the Maturity Date, upon Redemption, upon any required repurchase,
upon declaration of acceleration or otherwise;


 


(c)     failure
by the Company to comply with its obligation to convert the Notes in accordance with the Indenture upon exercise of a Holder’s
conversion right, and such default is not cured within five Business Days;


 


(d)     failure
by the Company to issue a Fundamental Change Company Notice in accordance with Section 15.02(c),
and such failure is not cured within ten days after the due date for such notice, or failure by the Company to issue notice of
a specified corporate event in accordance with Section 14.01(b)(ii) or 14.01(b)(iii) when due;


 


(e)     failure
by the Company to comply with its obligations under Article 11;


 


(f)     failure
by the Company for 60 days after written notice from the Trustee or the Holders of at least 25% in principal amount of the Notes
then outstanding has been received by the Company to comply with any of its other agreements contained in the Notes or the Indenture;


 


(g)     default
by the Company or any Significant Subsidiary with respect to any mortgage, agreement or other instrument under which there may
be outstanding, or by which there may be secured or evidenced, any indebtedness for money borrowed in excess of $50 million (or
its foreign currency equivalent) in the aggregate of the Company and/or any such Significant Subsidiary, whether such indebtedness
now exists or shall hereafter be created (i) resulting in such indebtedness becoming or being declared due and payable or (ii)
constituting a failure to pay the principal or interest of any such debt when due and payable at its stated maturity, upon required
repurchase, upon declaration of acceleration or otherwise;


 


(h)     a final
judgment for the payment of $50 million (or its foreign currency equivalent) or more (excluding any amounts covered by insurance)
rendered against the Company or any Significant Subsidiary, which judgment is not discharged or stayed within 60 days after (i)
the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights
to appeal have been extinguished;


 




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(i)     the Company
or any Significant Subsidiary shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to the Company or any such Significant Subsidiary or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of the Company or any such Significant Subsidiary or any substantial part of its property, or shall consent to any such relief
or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due;
or


 


(j)     an involuntary
case or other proceeding shall be commenced against the Company or any Significant Subsidiary seeking liquidation, reorganization
or other relief with respect to the Company or such Significant Subsidiary or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar
official of the Company or such Significant Subsidiary or any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 50 consecutive days.


 


Section 6.03. Acceleration; Rescission
and Annulment. If one or more Events of Default shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or governmental body), then, and in each and every
such case (other than an Event of Default specified in Section 6.02(i) or Section 6.02(j) with respect to the Company or any of
its Significant Subsidiaries), unless the principal of all of the Notes shall have already become due and payable, either the Trustee
or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding determined in accordance with Section
8.04 of the Base Indenture, by notice in writing to the Company (and to the Trustee if given by Holders), may declare 100%
of the principal of, and accrued and unpaid interest on, all the Notes to be due and payable immediately, and upon any such declaration
the same shall become and shall automatically be immediately due and payable, anything contained in the Indenture or in the Notes
to the contrary notwithstanding. If an Event of Default specified in Section 6.02(i) or Section 6.02(j) with respect to the Company
or any of its Significant Subsidiaries occurs and is continuing, 100% of the principal of, and accrued and unpaid interest, if
any, on, all Notes shall become and shall automatically be immediately due and payable.


 




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The immediately preceding paragraph, however,
is subject to the conditions that if, at any time after the principal of the Notes shall have been so declared due and payable,
and before any judgment or decree for the payment of the monies due shall have been obtained or entered as hereinafter provided,
the Company shall pay or shall deposit with the Trustee a sum sufficient to pay installments of accrued and unpaid interest upon
all Notes and the principal of any and all Notes that shall have become due otherwise than by acceleration (with interest on overdue
installments of accrued and unpaid interest to the extent that payment of such interest is enforceable under applicable law, and
on such principal at the rate borne by the Notes plus one percent at such time) and amounts due to the Trustee pursuant
to Section 7.07 of the Base Indenture, and if (1) rescission would
not conflict with any judgment or decree of a court of competent jurisdiction and (2) any and all existing Events of Default under
the Indenture, other than the nonpayment of the principal of and accrued and unpaid interest, if any, on Notes that shall have
become due solely by such acceleration, shall have been cured, waived or otherwise remedied pursuant to Section 6.10, then and
in every such case (except as provided in the immediately succeeding sentence) the Holders of a majority in aggregate principal
amount of the Notes then outstanding, by written notice to the Company and to the Trustee, may waive all Defaults or Events of
Default with respect to the Notes and rescind and annul such declaration and its consequences and such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of the Indenture; but no such waiver
or rescission and annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall impair any right
consequent thereon. Notwithstanding anything to the contrary herein, no such waiver or rescission and annulment shall extend to
or shall affect any Default or Event of Default resulting from (i) the nonpayment of the principal (including the Redemption Price
and the Fundamental Change Repurchase Price, if applicable) of, or accrued and unpaid interest on, any Notes, (ii) a failure to
repurchase any Notes when required or (iii) a failure to pay or deliver, as the case may be, the consideration due upon conversion
of the Notes.


 


Section 6.04. Additional Interest.
Notwithstanding anything in the Indenture or in the Notes to the contrary, to the extent the Company elects, the sole remedy for
an Event of Default relating to (i) the failure by the Company to file with the Trustee pursuant to Section 314(a)(1) of the Trust
Indenture Act any documents or reports that the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act or (ii) the Company’s failure to comply with its obligations as set forth in Section 4.03
shall after the occurrence of such an Event of Default consist exclusively of the right to receive Additional Interest on the Notes
at a rate equal to (a) 0.25% per annum of the principal amount of the Notes outstanding for the first 90 days of the 180-day
period during which such Event of Default is continuing beginning on, and including, the date on which such an Event of Default
first occurs and (b) 0.50% per annum of the principal amount of the Notes outstanding for the last 90 days of such 180-day period
as long as such Event of Default is continuing. If the Company so elects, such Additional Interest shall be payable in the same
manner and on the same dates as the stated interest payable on the Notes. On the 181st day after such Event of Default (if the
Event of Default relating to the Company’s failure to file is not cured or waived prior to such 181st day), the Notes shall
be immediately subject to acceleration as provided in Section 6.03. In the event the Company does not elect to pay Additional Interest
following an Event of Default in accordance with this Section 6.04 or the Company elected to make such payment but does not pay
the Additional Interest when due, the Notes shall be immediately subject to acceleration as provided in Section 6.03.


 


In order to elect to pay Additional Interest
as the sole remedy during the first 180 days after the occurrence of any Event of Default described in the immediately preceding
paragraph, the Company must notify all Holders of the Notes, the Trustee and the Paying Agent of such election prior to the beginning
of such 180-day period. Upon the failure to timely give such notice, the Notes shall be immediately subject to acceleration as
provided in Section 6.03.


 




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Section 6.05. Payments of Notes on Default;
Suit Therefor. If an Event of Default described in clause (a) or (b) of Section 6.01 shall have occurred, the Company shall,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable
on the Notes for principal and interest, if any, with interest on any overdue principal and interest, if any, at the rate borne
by the Notes plus one percent at such time, and, in addition thereto, such further amount as shall be sufficient to cover
any amounts due to the Trustee under Section 7.07 of the Base Indenture.
If the Company shall fail to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment
or final decree and may enforce the same against the Company or any other obligor upon the Notes and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon the Notes,
wherever situated.


 


In the event there shall be pending proceedings
for the bankruptcy or for the reorganization of the Company or any other obligor on the Notes under Title 11 of the United States
Code, or any other applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator
or similar official shall have been appointed for or taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the event of any other judicial proceedings relative to the Company or such other obligor
upon the Notes, or to the creditors or property of the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this Section 6.05, shall be entitled and empowered, by intervention
in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and accrued and unpaid
interest, if any, in respect of the Notes, and, in case of any judicial proceedings, to file such proofs of claim and other papers
or documents and to take such other actions as it may deem necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Notes, its or their creditors,
or its or their property, and to collect and receive any monies or other property payable or deliverable on any such claims, and
to distribute the same after the deduction of any amounts due to the Trustee under Section
7.07 of the Base Indenture; and any receiver, assignee or trustee in bankruptcy or reorganization, liquidator, custodian
or similar official is hereby authorized by each of the Holders to make such payments to the Trustee, as administrative expenses,
and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for reasonable compensation, expenses, advances and disbursements, including agents and counsel fees, and including
any other amounts due to the Trustee under Section 7.07 of the Base Indenture,
incurred by it up to the date of such distribution. To the extent that such payment of reasonable compensation, expenses, advances
and disbursements out of the estate in any such proceedings shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends, monies, securities and other property that the Holders
of the Notes may be entitled to receive in such proceedings, whether in liquidation or under any plan of reorganization or arrangement
or otherwise.


 




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Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting such Holder or the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.


 


All rights of action and of asserting claims
under the Indenture, or under any of the Notes, may be enforced by the Trustee without the possession of any of the Notes, or the
production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Notes.


 


In any proceedings brought by the Trustee
(and in any proceedings involving the interpretation of any provision of the Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Notes, and it shall not be necessary to make any Holders of the Notes
parties to any such proceedings.


 


In case the Trustee shall have proceeded
to enforce any right under the Indenture and such proceedings shall have been discontinued or abandoned because of any waiver pursuant
to Section 6.10 or any rescission and annulment pursuant to Section 6.03 or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the Company, the Holders and the Trustee shall, subject to any determination
in such proceeding, be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the Company, the Holders and the Trustee shall continue as though no such proceeding had been instituted.


 


Section 6.06. Application of Monies Collected
by Trustee. Any monies collected by the Trustee pursuant to this Article 6 with respect to the Notes shall be applied in the
following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several
Notes, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:


 


First, to the payment of all amounts
due the Trustee under Section 7.07 of the Base Indenture;


 


Second, in case the principal of
the outstanding Notes shall not have become due and be unpaid, to the payment of interest on, and any cash due upon conversion
of, the Notes in default in the order of the date due of the payments of such interest and cash due upon conversion, as the case
may be, with interest (to the extent that such interest has been collected by the Trustee) upon such overdue payments at the rate
borne by the Notes at such time, such payments to be made ratably to the Persons entitled thereto;


 




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Third, in case the principal of the
outstanding Notes shall have become due, by declaration or otherwise, and be unpaid to the payment of the whole amount (including,
if applicable, the payment of the Redemption Price and the Fundamental Change Repurchase Price and any cash due upon conversion)
then owing and unpaid upon the Notes for principal and interest, if any, with interest on the overdue principal and, to the extent
that such interest has been collected by the Trustee, upon overdue installments of interest at the rate borne by the Notes at such
time plus one percent, and in case such monies shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Notes, then to the payment of such principal (including, if applicable, the Redemption Price and the Fundamental Change
Repurchase Price and the cash due upon conversion) and interest without preference or priority of principal over interest, or of
interest over principal or of any installment of interest over any other installment of interest, or of any Note over any other
Note, ratably to the aggregate of such principal (including, if applicable, the Redemption Price and the Fundamental Change Repurchase
Price and any cash due upon conversion) and accrued and unpaid interest; and


 


Fourth, to the payment of the remainder,
if any, to the Company.


 


Section 6.07. Proceedings by Holders.
Except to enforce the right to receive payment of principal (including, if applicable, the Redemption Price and the Fundamental
Change Repurchase Price) or interest when due, or the right to receive payment or delivery of the consideration due upon conversion,
no Holder of any Note shall have any right by virtue of or by availing of any provision of the Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to the Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless:


 


(a)     such Holder
previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof, as herein provided;


 


(b)     Holders
of at least 25% in aggregate principal amount of the Notes then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder;


 


(c)     such Holders
shall have offered to the Trustee such security or indemnity reasonably satisfactory to it against any loss, liability or expense
to be incurred therein or thereby;


 


(d)     the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding; and


 


(e)     no direction
that, in the opinion of the Trustee, is inconsistent with such written request shall have been given to the Trustee by the Holders
of a majority of the aggregate principal amount of the Notes then outstanding within such 60-day period pursuant to Section 6.10,


 




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it being understood and intended, and being
expressly covenanted by the taker and Holder of every Note with every other taker and Holder and the Trustee that no one or more
Holders shall have any right in any manner whatever by virtue of or by availing of any provision of the Indenture to affect, disturb
or prejudice the rights of any other Holder, or to obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under the Indenture, except in the manner herein provided and for the equal, ratable and common benefit
of all Holders (except as otherwise provided herein). For the protection and enforcement of this Section 6.07, each and every Holder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.


 


Notwithstanding any other provision of the
Indenture and any provision of any Note, the right of any Holder to receive payment or delivery, as the case may be, of (x) the
principal (including the Redemption Price and the Fundamental Change Repurchase Price, if applicable) of, (y) accrued and unpaid
interest, if any, on, and (z) the consideration due upon conversion of, such Note, on or after the respective due dates expressed
or provided for in such Note or in the Indenture, or to institute suit for the enforcement of any such payment or delivery, as
the case may be, on or after such respective dates against the Company shall not be impaired or affected without the consent of
such Holder.


 


Section 6.08. Proceedings by Trustee.
In case of an Event of Default, the Trustee may in its discretion (and subject to the provisions of Sections 7.01 and 7.07 of the
Base Indenture) proceed to protect and enforce the rights vested in it by the Indenture by such appropriate judicial proceedings
as are necessary to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy
or otherwise, whether for the specific enforcement of any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in the Indenture, or to enforce any other legal or equitable right vested in the Trustee by the Indenture
or by law.


 


Section 6.09. Remedies Cumulative and
Continuing. Except as provided in the last paragraph of Section 2.08, all powers and remedies given by this Article 6 to the
Trustee or to the Holders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any
other powers and remedies available to the Trustee or the Holders of the Notes, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements contained in the Indenture, and no delay or omission of the Trustee
or of any Holder of any of the Notes to exercise any right or power accruing upon any Default or Event of Default shall impair
any such right or power, or shall be construed to be a waiver of any such Default or Event of Default or any acquiescence therein;
and, subject to the provisions of Section 6.07, every power and remedy given by this Article 6 or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders.


 




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Section 6.10. Direction of Proceedings
and Waiver of Defaults by Majority of Holders. The Holders of a majority of the aggregate principal amount of the Notes at
the time outstanding determined in accordance with Section 8.04 of the
Base Indenture shall have the right to direct the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however,
that (a) such direction shall not be in conflict with any rule of law or with the Indenture, (b) the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such direction, and (c) the Trustee may demand security or indemnity
reasonably satisfactory to it in accordance with Sections 7.01 and 7.03 of the Base Indenture. The Trustee may refuse to follow
any direction that it determines is unduly prejudicial to the rights of any other Holder or that would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04 of the Base Indenture may on behalf of the Holders
of all of the Notes waive any past Default or Event of Default hereunder and its consequences except (i) a default in the payment
of accrued and unpaid interest, if any, on, or the principal (including any Redemption Price and any Fundamental Change Repurchase
Price) of, the Notes when due that has not been cured pursuant to the provisions of Section 6.01, (ii) a failure by the Company
to pay or deliver, as the case may be, the consideration due upon conversion of the Notes or (iii) a default in respect of a covenant
or provision hereof which under Article 10 cannot be modified or amended without the consent of each Holder of an outstanding Note
affected. Upon any such waiver the Company, the Trustee and the Holders of the Notes shall be restored to their former positions
and rights hereunder; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived as permitted by this Section 6.10,
said Default or Event of Default shall for all purposes of the Notes and the Indenture be deemed to have been cured and to be not
continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.


 


Section 6.11. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence and continuance of a Default of which a Responsible Officer has actual knowledge,
mail to all Holders as the names and addresses of such Holders appear upon the Note Register, notice of all Defaults known to a
Responsible Officer, unless such Defaults shall have been cured or waived before the giving of such notice; provided that,
except in the case of a Default in the payment of the principal of (including the Redemption Price and the Fundamental Change Repurchase
Price, if applicable), or accrued and unpaid interest on, any of the Notes or a Default in the payment or delivery of the consideration
due upon conversion, the Trustee shall be protected in withholding such notice if and so long as a committee of Responsible Officers
of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.


 


Section 6.12. Undertaking to Pay Costs.
All parties to the Indenture agree, and each Holder of any Note by its acceptance thereof shall be deemed to have agreed, that
any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under the Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; provided that the provisions of this Section 6.12 (to the extent permitted
by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Notes at the time outstanding determined in accordance with Section
8.04 of the Base Indenture, or to any suit instituted by any Holder for the enforcement of the payment of the principal
of or accrued and unpaid interest, if any, on any Note (including, but not limited to, the Redemption Price and the Fundamental
Change Repurchase Price, if applicable) on or after the due date expressed or provided for in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions of Article 14.


 




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Article
7



[Intentionally Omitted]


 


Article
8



[Intentionally Omitted]


 


Article
9



Holders’ Meetings


 


Section 9.01. Purpose of Meetings.
A meeting of Holders may be called at any time and from time to time pursuant to the provisions of this Article 9 for any of the
following purposes:


 


(a)     to give
any notice to the Company or to the Trustee or to give any directions to the Trustee permitted under the Indenture, or to consent
to the waiving of any Default or Event of Default hereunder (in each case, as permitted under the Indenture) and its consequences,
or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article 6;


 


(b)     to remove
the Trustee and nominate a successor trustee pursuant to the provisions of Article VII of the Base Indenture;


 


(c)     to consent
to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or


 


(d)     to take
any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of the Notes
under any other provision of the Indenture or under applicable law.


 


Section 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders to take any action specified in Section 9.01, to be held at such time and
at such place as the Trustee shall determine. Notice of every meeting of the Holders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting and the establishment of any record date pursuant
to Section 8.01 of the Base Indenture, shall be mailed to Holders
of such Notes at their addresses as they shall appear on the Note Register. Such notice shall also be mailed to the Company. Such
notices shall be mailed not less than 20 nor more than 90 days prior to the date fixed for the meeting.


 




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Any meeting of Holders shall be valid without
notice if the Holders of all Notes then outstanding are present in person or by proxy or if notice is waived before or after the
meeting by the Holders of all Notes then outstanding, and if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.


 


Section 9.03. Call of Meetings by Company
or Holders. In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% of the aggregate
principal amount of the Notes then outstanding, shall have requested the Trustee to call a meeting of Holders, by written request
setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed the notice
of such meeting within 20 days after receipt of such request, then the Company or such Holders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in Section 9.01, by mailing notice thereof as provided
in Section 9.02.


 


Section 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Notes on the record date pertaining
to such meeting or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Notes on the record
date pertaining to such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.


 


Section 9.05. Regulations. Notwithstanding
any other provisions of the Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of Holders, in regard to proof of the holding of Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think fit.


 


The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders as provided
in Section 9.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint
a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of
a majority in aggregate principal amount of the Notes represented at the meeting and entitled to vote at the meeting.


 


Subject to the provisions of Section
8.04 of the Base Indenture, at any meeting of Holders each Holder or proxyholder shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by him or her; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Note challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Notes held by it or instruments in
writing as aforesaid duly designating it as the proxy to vote on behalf of other Holders. Any meeting of Holders duly called pursuant
to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time by the Holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so adjourned
without further notice.


 




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Section 9.06. Voting. The vote upon
any resolution submitted to any meeting of Holders shall be by written ballot on which shall be subscribed the signatures of the
Holders or of their representatives by proxy and the outstanding aggregate principal amount of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate
of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote
by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts setting forth a copy of the notice
of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall show the aggregate principal
amount of the Notes voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to
the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting.


 


Any record so signed and verified shall
be conclusive evidence of the matters therein stated.


 


Section 9.07. No Delay of Rights by Meeting.
Nothing contained in this Article 9 shall be deemed or construed to authorize or permit, by reason of any call of a meeting of
Holders or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any
right or rights conferred upon or reserved to the Trustee or to the Holders under any of the provisions of the Indenture or of
the Notes.


 


Article
10



Supplemental Indentures


 


Section 10.01. Supplemental Indentures
Without Consent of Holders. This Section 10.01 shall supersede Section
9.01 of the Base Indenture, and any reference in the Base Indenture to Section 9.01 thereof shall be deemed to refer instead to
this Section 10.01.  The Company and the Trustee, at the
Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for one
or more of the following purposes:


 


(a)     to cure
any ambiguity, omission, defect or inconsistency that does not adversely affect Holders of the Notes;


 


(b)     to provide
for the assumption by a Successor Company of the obligations of the Company under the Indenture pursuant to Article 11;


 




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(c)     to add
guarantees with respect to the Notes;


 


(d)     to secure
the Notes;


 


(e)     to add
to the covenants or Events of Default of the Company for the benefit of the Holders or surrender any right or power conferred upon
the Company;


 


(f)     to make
any change that does not materially adversely affect the rights of any Holder;


 


(g)     in connection
with any Merger Event, provide that the notes are convertible into Reference Property, subject to the provisions of Section 14.02,
and make such related changes to the terms of the Notes to the extent expressly required by Section 14.07;


 


(h)     to conform
the provisions of the Indenture or the Notes to the “Description of notes” section of the Prospectus Supplement; or


 


(i)     evidence
and provide for the appointment under the Indenture of a successor trustee.


 


Upon the written request of the Company,
the Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or immunities under the Indenture
or otherwise.


 


Any supplemental indenture authorized by
the provisions of this Section 10.01 may be executed by the Company and the Trustee without the consent of the Holders of any of
the Notes at the time outstanding, notwithstanding any of the provisions of Section 10.02.


 


Section 10.02. Supplemental Indentures
with Consent of Holders. This Section 10.02 shall supersede Section
9.02 of the Base Indenture, and any reference in the Base Indenture to Section 9.02 thereof shall be deemed to refer instead to
this Section 10.02. With the consent (evidenced as provided
in Article VIII of the Base Indenture) of the Holders of at least
a majority of the aggregate principal amount of the Notes then outstanding (determined in accordance with Article
VIII of the Base Indenture and including, without limitation, consents obtained in connection with a repurchase of, or tender
or exchange offer for, Notes), the Company, when authorized by the resolutions of the Board of Directors, and the Trustee, at the
Company’s expense, may from time to time and at any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or any supplemental
indenture or of modifying in any manner the rights of the Holders; provided, however, that, without the consent of
each Holder of an outstanding Note affected, no such supplemental indenture shall:


 


(a)     reduce
the amount of Notes whose Holders must consent to an amendment;


 


(b)     reduce
the rate of or extend the stated time for payment of interest on any Note;


 




    	37



    	 



    

 


(c)     reduce
the principal of or extend the Maturity Date of any Note;


 


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


 


(e)     reduce
the Redemption Price or the Fundamental Change Repurchase Price of any Note or amend or modify in any manner adverse to the Holders
the Company’s obligation to make such payments, whether through an amendment or waiver of provisions in the covenants, definitions
or otherwise;


 


(f)      make any
Note payable in a currency, or at a place of payment, other than that stated in the Note;


 


(g)     comply
with any requirement of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;


 


(h)    change
the ranking of the Notes;


 


(i)      impair
the right of any Holder to receive payment of principal and interest on such Holder’s Notes on or after the due dates therefor
or to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes; or


 


(j)      make any
change in this Article 10 that requires each Holder’s consent or in the waiver provisions in Section 6.03 or Section 6.10.


 


Upon the written request of the Company,
and upon the filing with the Trustee of evidence of the consent of Holders as aforesaid and subject to Section
9.05 of the Base Indenture, the Trustee shall join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee’s own rights, duties or immunities under the Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.


 


Holders do not need under this Section 10.02
to approve the particular form of any proposed supplemental indenture. It shall be sufficient if such Holders approve the substance
thereof. After any such supplemental indenture becomes effective, the Company shall mail to the Holders a notice briefly describing
such supplemental indenture. However, the failure to give such notice to all the Holders, or any defect in the notice, will not
impair or affect the validity of the supplemental indenture.


 


Article
11



Consolidation, Merger, Sale, Conveyance and Lease


 


Section 11.01. Applicability of Article
X of the Base Indenture. Article X of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in
this Article 11 shall, with respect to the Notes, supersede in its entirety Article X of the Base Indenture, and all references
in the Base Indenture to Article X thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be
deemed to be references to this Article 11 and the applicable provisions set forth in this Article 11, respectively. In addition,
Section 4.05 of the Base Indenture shall be deemed deleted with respect to the Notes.


 




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Section 11.02. Company May Consolidate,
Etc. on Certain Terms. Subject to the provisions of Section 11.03, the Company shall not consolidate with, merge with or into,
or sell, convey, transfer or lease all or substantially all of its properties and assets to another Person, unless:


 


(a)     the resulting,
surviving or transferee Person (the “Successor Company”), if not the Company, shall be a corporation organized
and existing under the laws of the United States of America, any State thereof or the District of Columbia, and the Successor Company
(if not the Company) shall expressly assume, by supplemental indenture all of the obligations of the Company under the Notes and
the Indenture; and


 


(b)     immediately
after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing under the Indenture.


 


For purposes of this Section 11.01, the
sale, conveyance, transfer or lease of all or substantially all of the properties and assets of one or more Subsidiaries of the
Company to another Person, which properties and assets, if held by the Company instead of such Subsidiaries, would constitute all
or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the sale, conveyance,
transfer or lease of all or substantially all of the properties and assets of the Company to another Person.


 


Section 11.03. Successor Corporation
to Be Substituted. In case of any such consolidation, merger, sale, conveyance, transfer or lease and upon the assumption by
the Successor Company, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and accrued and unpaid interest on all of the Notes, the due and punctual delivery
or payment, as the case may be, of any consideration due upon conversion of the Notes and the due and punctual performance of all
of the covenants and conditions of the Indenture to be performed by the Company, such Successor Company (if not the Company) shall
succeed to and, except in the case of a lease of all or substantially all of the Company’s properties and assets, shall be
substituted for the Company, with the same effect as if it had been named herein as the party of the first part. Such Successor
Company thereupon may cause to be signed, and may issue either in its own name or in the name of the Company any or all of the
Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the
order of such Successor Company instead of the Company and subject to all the terms, conditions and limitations in the Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be authenticated and delivered, any Notes that previously
shall have been signed and delivered by the Officers of the Company to the Trustee for authentication, and any Notes that such
Successor Company thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall
in all respects have the same legal rank and benefit under the Indenture as the Notes theretofore or thereafter issued in accordance
with the terms of the Indenture as though all of such Notes had been issued at the date of the execution hereof. In the event of
any such consolidation, merger, sale, conveyance or transfer (but not in the case of a lease), upon compliance with this Article
11 the Person named as the “Company” in the first paragraph of this Supplemental Indenture (or any successor that shall
thereafter have become such in the manner prescribed in this Article 11)
may be dissolved, wound up and liquidated at any time thereafter and, except in the case of a lease, such Person shall be released
from its liabilities as obligor and maker of the Notes and from its obligations under the Indenture and the Notes.


 




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In case of any such consolidation, merger,
sale, conveyance, transfer or lease, such changes in phraseology and form (but not in substance) may be made in the Notes thereafter
to be issued as may be appropriate.


 


Section 11.04. Opinion of Counsel to
Be Given to Trustee. No such consolidation, merger, sale, conveyance, transfer or lease shall be effective unless the Trustee
shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, conveyance, transfer or lease and any such assumption and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, complies with the provisions of this Article 11.


 


Article
12



[Intentionally Omitted]


 


Article
13



[Intentionally Omitted]


 


Article
14



Conversion of Notes


 


Section 14.01. Conversion Privilege.
(a) Subject to and upon compliance with the provisions of this Article 14, each Holder of a Note shall have the right, at such
Holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral
multiple thereof) of such Note (i) subject to satisfaction of the conditions described in Section 14.01(b), at any time prior to
the close of business on the Business Day immediately preceding February 1, 2018 under the circumstances and during the periods
set forth in Section 14.01(b), and (ii) regardless of the conditions described in Section 14.01(b), at any time on or after February
1, 2018 and prior to the close of business on the Business Day immediately preceding the Maturity Date, in each case, at an initial
conversion rate of 59.8050 shares of Common Stock (subject to adjustment as provided in this
Article 14, the “Conversion Rate”) per $1,000 principal amount of Notes (subject to, and in accordance
with, the settlement provisions of Section 14.02, the “Conversion Obligation”).


 




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(b)          (i)
Prior to the close of business on the Business Day immediately preceding February 1, 2018, a Holder may surrender all or any portion
of its Notes for conversion at any time during the five Business Day period immediately after any five consecutive Trading Day
period (the “Measurement Period”) in which the Trading Price per $1,000 principal amount of Notes, as determined
following a request by a Holder of Notes in accordance with this subsection (b)(i), for each Trading Day of the Measurement Period
was less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate on each such Trading
Day. The Trading Prices shall be determined by the Bid Solicitation Agent pursuant to this subsection (b)(i) and the definition
of Trading Price set forth in this Supplemental Indenture. The Company shall provide written notice to the Bid Solicitation Agent
of the three independent nationally recognized securities dealers selected by the Company pursuant to the definition of Trading
Price, along with appropriate contact information for each. The Bid Solicitation Agent shall have no obligation to determine the
Trading Price per $1,000 principal amount of Notes unless the Company has requested such determination and provided the Bid Solicitation
Agent with the names of at least three nationally recognized securities dealers, and the Company shall have no obligation to make
such request unless a Holder provides the Company with reasonable evidence that the Trading Price per $1,000 principal amount of
Notes would be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate, at which
time the Company shall instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes
beginning on the next Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount of Notes
is greater than or equal to 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion Rate. If
the Company does not instruct the Bid Solicitation Agent to determine the Trading Price per $1,000 principal amount of Notes when
obligated as provided in the preceding sentence, or if the Company instructs the Bid Solicitation Agent to obtain bids and the
Bid Solicitation Agent fails to make such determination, then, in either case, the Trading Price per $1,000 principal amount of
Notes shall be deemed to be less than 98% of the product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate on each Trading Day of such failure. If the Trading Price condition set forth above has been met, the Company shall so notify
the Holders, the Trustee and the Conversion Agent (if other than the Trustee). If, at any time after the Trading Price condition
set forth above has been met, the Trading Price per $1,000 principal amount of Notes is greater than or equal to 98% of the product
of the Last Reported Sale Price of the Common Stock and the Conversion Rate for such date, the Company shall so notify the Holders
of the Notes, the Trustee and the Conversion Agent (if other than the Trustee).


 


(ii)         If,
prior to the close of business on the Business Day immediately preceding February 1, 2018, the Company elects to:


 


(A)         issue
to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period of not more
than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at
a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading
Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance; or


 




    	41



    	 



    

 


(B)         distribute
to all or substantially all holders of the Common Stock the Company’s assets, securities or rights to purchase securities
of the Company (excluding for this purpose a distribution solely in the form of cash required to preserve the Company’s status
as a REIT), which distribution has a per share value, as reasonably determined by the Board of Directors, exceeding 10% of the
Last Reported Sale Price of the Common Stock on the Trading Day preceding the date of announcement for such distribution,


 


then, in either case, the Company shall notify all Holders of
the Notes, the Trustee and the Conversion Agent (if other than the Trustee) at least 30 Scheduled Trading Days prior to the Ex-Dividend
Date for such issuance or distribution. Once the Company has given such notice, a Holder may surrender all or any portion of its
Notes for conversion at any time until the earlier of (1) the close of business on the Business Day immediately preceding the Ex-Dividend
Date for such issuance or distribution and (2) the Company’s announcement that such issuance or distribution will not take
place, in each case, even if the Notes are not otherwise convertible at such time.


 


(iii)        If
a transaction or event that constitutes a Fundamental Change or a Make-Whole Fundamental Change occurs prior to the close of business
on the Business Day immediately preceding February 1, 2018, regardless of whether a Holder has the right to require the Company
to repurchase the Notes pursuant to Section 15.02, or if the Company is a party to a consolidation, merger, binding share exchange,
or transfer or lease of all or substantially all of its assets, in each case, pursuant to which the Common Stock would be converted
into cash, securities or other assets, all or any portion of a Holder’s Notes may be surrendered for conversion at any time
from or after the date that is 30 Scheduled Trading Days prior to the anticipated effective date of the transaction (or, if later,
the Business Day after the Company gives notice of such transaction) until 35 Trading Days after the actual effective date of such
transaction or, if such transaction also constitutes a Fundamental Change, until the related Fundamental Change Repurchase Date.
The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee) (i) as promptly as practicable
following the date the Company publicly announces such transaction but in no event less than 30 Scheduled Trading Days prior to
the anticipated effective date of such transaction or (ii) if the Company does not have knowledge of such transaction at least
30 Scheduled Trading Days prior to the anticipated effective date of such transaction, within one Business Day of the date upon
which the Company receives notice, or otherwise becomes aware, of such transaction, but in no event later than the actual effective
date of such transaction.


 




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(iv)        Prior
to the close of business on the Business Day immediately preceding February 1, 2018, a Holder may surrender all or
any portion of its Notes for conversion at any time during any calendar quarter commencing after the calendar quarter ending
on September 30, 2013 (and only during such calendar quarter), if the Last Reported Sale Price of the Common Stock for at
least 20 Trading Days (whether or not consecutive) during the period of 30 consecutive Trading Days ending on the last
Trading Day of the immediately preceding calendar quarter (as reported to the Conversion Agent by the Company) is greater
than or equal to 130% of the Conversion Price on each applicable Trading Day. Upon receipt of and on the basis of such
report from the Company, the Conversion Agent, on behalf of the Company, shall determine at the beginning of each calendar
quarter commencing after September 30, 2013 whether the Notes may be surrendered for conversion in accordance with this
clause (iv) and shall notify the Company and the Trustee if the Notes become convertible in accordance with this clause
(iv).


 


(v)         If
the Company calls any or all of the Notes for redemption pursuant to Article 16 prior to the close of business on the Business
Day immediately preceding February 1, 2018, then a Holder may surrender all or any portion of its Notes for conversion at any time
prior to the close of business on the Scheduled Trading Day prior to the Redemption Date, even if the Notes are not otherwise convertible
at such time. After that time, the right to convert shall expire, unless the Company defaults in the payment of the Redemption
Price, in which case a Holder of Notes may convert its Notes until the Redemption Price has been paid or duly provided for.


 


Section 14.02. Conversion Procedure;
Settlement Upon Conversion.


 


(a)          Subject
to this Section 14.02, Section 14.03(b) and Section 14.07(a), upon conversion of any Note, the Company shall pay or deliver, as
the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, cash (“Cash
Settlement”), shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of
Common Stock in accordance with subsection (j) of this Section 14.02 (“Physical Settlement”) or a combination
of cash and shares of Common Stock, together with cash, if applicable, in lieu of delivering any fractional share of Common Stock
in accordance with subsection (j) of this Section 14.02 (“Combination Settlement”), at its election, as set
forth in this Section 14.02.


 


(i)          All
conversions for which the relevant Conversion Date occurs on or after February 1, 2018, and all conversions for which the relevant
Conversion Date occurs after the Company’s issuance of a Redemption Notice with respect to the Notes and prior to the related
Redemption Date, shall be settled using the same Settlement Method.


 


(ii)         Except
for any conversions for which the relevant Conversion Date occurs after the Company’s issuance of a Redemption Notice with
respect to the Notes but prior to the related Redemption Date, and any conversions for which the relevant Conversion Date occurs
on or after February 1, 2018, the Company shall use the same Settlement Method for all conversions with the same Conversion Date,
but the Company shall not have any obligation to use the same Settlement Method with respect to conversions with different Conversion
Dates.


 




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(iii)        If,
in respect of any Conversion Date (or one of the periods described in the third immediately succeeding set of parentheses, as the
case may be), the Company elects to deliver a notice (the “Settlement Notice”) of the relevant Settlement Method
in respect of such Conversion Date (or such period, as the case may be), the Company, through the Trustee, shall deliver such Settlement
Notice to converting Holders no later than the close of business on the Trading Day immediately following the relevant Conversion
Date (or, in the case of any conversions for which the relevant Conversion Date occurs (x) subject to clause (y), after the date
of issuance of a Redemption Notice with respect to the Notes and prior to the related Redemption Date, in such Redemption Notice
or (y) on or after February 1, 2018, no later than February 1, 2018). If the Company does not elect a Settlement Method prior to
the deadline set forth in the immediately preceding sentence, the Company shall no longer have the right to elect Cash Settlement
or Physical Settlement and the Company shall be deemed to have elected Combination Settlement in respect of its Conversion Obligation,
and the Specified Dollar Amount per $1,000 principal amount of Notes shall be equal to $1,000. Such Settlement Notice shall specify
the relevant Settlement Method and in the case of an election of Combination Settlement, the relevant Settlement Notice shall indicate
the Specified Dollar Amount per $1,000 principal amount of Notes. If the Company delivers a Settlement Notice electing Combination
Settlement in respect of its Conversion Obligation but does not indicate a Specified Dollar Amount per $1,000 principal amount
of Notes in such Settlement Notice, the Specified Dollar Amount per $1,000 principal amount of Notes shall be deemed to be $1,000.


 


(iv)        The
cash, shares of Common Stock or combination of cash and shares of Common Stock in respect of any conversion of Notes (the “Settlement
Amount”) shall be computed as follows:


 


(A)         if
the Company elects to satisfy its Conversion Obligation in respect of such conversion by Physical Settlement, the Company
shall deliver (or cause its stock transfer agent to deliver) to the converting Holder in respect of each $1,000 principal
amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion
Date;


 


(B)         if
the Company elects to satisfy its Conversion Obligation in respect of such conversion by Cash Settlement, the Company shall pay
to the converting Holder in respect of each $1,000 principal amount of Notes being converted cash in an amount equal to the sum
of the Daily Conversion Values for each of the 20 consecutive Trading Days during the related Observation Period; and


 


(C)         if
the Company elects (or is deemed to have elected) to satisfy its Conversion Obligation in respect of such conversion by Combination
Settlement, the Company shall pay or deliver, as the case may be, in respect of each $1,000 principal amount of Notes being converted,
a Settlement Amount equal to the sum of the Daily Settlement Amounts for each of the 20 consecutive Trading Days during the related
Observation Period.


 




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(v)         The
Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly
following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily
Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering any fractional share of Common Stock,
the Company shall notify the Trustee and the Conversion Agent (if other than the Trustee) of the Daily Settlement Amounts or the
Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of delivering fractional shares of Common Stock.
The Trustee and the Conversion Agent (if other than the Trustee) shall have no responsibility for any such determination.


 


(b)          Subject
to Section 14.02(e), before any Holder of a Note shall be entitled
to convert a Note as set forth above, such Holder shall (i) in the case of a Global Note, comply with the procedures of the Depositary
in effect at that time and, if required, pay funds equal to interest payable on the next Interest Payment Date to which such Holder
is not entitled as set forth in Section 14.02(h) and (ii) in the case of a Physical Note (1) complete, manually sign and deliver
an irrevocable notice to the Conversion Agent as set forth in the Form of Notice of Conversion (or a facsimile thereof) (a “Notice
of Conversion”) at the office of the Conversion Agent and state in writing therein the principal amount of Notes to be
converted and the name or names (with addresses) in which such Holder wishes the certificate or certificates for any shares of
Common Stock to be delivered upon settlement of the Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at the office of the Conversion
Agent, (3) if required, furnish appropriate endorsements and transfer documents and (4) if required, pay funds equal to interest
payable on the next Interest Payment Date to which such Holder is not entitled as set forth in Section 14.02(h). The Trustee (and
if different, the Conversion Agent) shall notify the Company of any conversion pursuant to this Article 14 on the Conversion Date
for such conversion. No Notice of Conversion with respect to any Notes may be surrendered by a Holder thereof if such Holder has
also delivered a Fundamental Change Repurchase Notice to the Company in respect of such Notes and has not validly withdrawn such
Fundamental Change Repurchase Notice in accordance with Section 15.03.


 


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


 




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(c)          A
Note shall be deemed to have been converted immediately prior to the close of business on the date (the “Conversion
Date”) that the Holder has complied with the requirements set forth in subsection (b) above. Except as provided in
Section 14.03 and Section 14.07 below, the Company shall pay or deliver, as the case may be, the consideration due in respect
of the Conversion Obligation on the third Business Day immediately following the relevant Conversion Date, if the Company
elects Physical Settlement, or on the third Business Day immediately following the last Trading Day of the Observation
Period, in the case of any other Settlement Method. If any shares of Common Stock are due to converting Holders, the Company
shall issue or cause to be issued by its stock transfer agent, and deliver to the Conversion Agent or to such Holder, or such Holder’s nominee or
nominees, certificates or a book-entry transfer through the Depositary for the full number of shares of Common Stock to which
such Holder shall be entitled in satisfaction of the Company’s Conversion Obligation. Prior to the issuance of Common Stock, the Company shall give the Conversion Agent notice of the number of shares of Common
Stock being so issued and the method by which the issuance shall take place. Any required funds due to a converting Holder
in connection with a Cash Settlement or Combination Settlement shall be delivered to the Paying Agent. For the avoidance of
doubt, neither the Conversion Agent nor the Trustee shall have any responsibility for the issuance by the Company of shares
of Common Stock.


 


(d)          In
case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Note so surrendered a new Note or Notes in authorized denominations
in an aggregate principal amount equal to the unconverted portion of the surrendered Note, without payment of any service
charge by the converting Holder but, if required by the Company or Trustee, with payment by the converting Holder of a sum
sufficient to cover any documentary, stamp or similar issue or transfer tax or similar governmental charge required by law or
that may be imposed in connection therewith as a result of the name of the Holder of the new Notes issued upon such
conversion being different from the name of the Holder of the old Notes surrendered for such conversion.


 


(e)          If
a Holder submits a Note for conversion, the Company shall pay any documentary, stamp or similar issue or transfer tax due
on the issue of any shares of Common Stock upon conversion, unless the tax is due because the Holder requests such shares to
be issued in a name other than the Holder’s name, in which case the Holder shall pay that tax. The Company (or if
the stock certificates are delivered by the Company to the Conversion Agent for further delivery to the converting Holder, the
Conversion Agent) may refuse to deliver the certificates representing the shares of Common Stock being issued in a name
other than the Holder’s name until the Trustee receives a sum sufficient to pay any tax that is due by such Holder in
accordance with the immediately preceding sentence.


 


(f)          Except
as provided in Section 14.04, no adjustment shall be made for dividends on any shares of Common Stock issued upon the conversion
of any Note.


 


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


 




    	46



    	 



    

 


(h)          Upon
conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below.
The Company’s settlement of the full Conversion Obligation shall be deemed to satisfy in full its obligation to pay the principal
amount of the Note and accrued and unpaid interest, if any, to, but not including, the relevant Conversion Date. As a result, accrued
and unpaid interest, if any, to, but not including, the relevant Conversion Date shall be deemed to be paid in full rather than
cancelled, extinguished or forfeited. Upon a conversion of Notes into a combination of cash and shares of Common Stock, accrued
and unpaid interest will be deemed to be paid first out of the cash paid upon such conversion. Notwithstanding the foregoing, if
Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on
such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date
notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record
Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount
of interest payable on the Notes so converted; provided that no such payment shall be required (1) for conversions following
the Regular Record Date immediately preceding the Maturity Date; (2) if the Company has specified a Redemption Date that is after
a Regular Record Date and on or prior to the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental
Change Repurchase Date that is after a Regular Record Date and on or prior to the Business Day immediately following the corresponding
Interest Payment Date; or (4) to the extent of any Defaulted Amounts, if any Defaulted Amounts exist at the time of conversion
with respect to such Note. Therefore, for the avoidance of doubt, all Holders of record on the Regular Record Date immediately
preceding the Maturity Date shall receive the full interest payment due on the Maturity Date regardless of whether their Notes
have been converted following such Regular Record Date.


 


(i)          The
Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as
a stockholder of record as of the close of business on the relevant Conversion Date (if the Company elects to satisfy the related
Conversion Obligation by Physical Settlement) or the last Trading Day of the relevant Observation Period (if the Company elects
to satisfy the related Conversion Obligation by Combination Settlement), as the case may be. Upon a conversion of Notes, such Person
shall no longer be a Holder of such Notes surrendered for conversion.


 


(j)          The
Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of
delivering any fractional share of Common Stock issuable upon conversion based on the Daily VWAP for the relevant Conversion Date
(in the case of Physical Settlement) or based on the Daily VWAP for the last Trading Day of the relevant Observation Period (in
the case of Combination Settlement). For each Note surrendered for conversion, if the Company has elected Combination Settlement,
the full number of shares that shall be issued upon conversion thereof shall be computed on the basis of the aggregate Daily Settlement
Amounts for the relevant Observation Period and any fractional shares remaining after such computation shall be paid in cash.


 


Section 14.03. Increased Conversion Rate
Applicable to Certain Notes Surrendered in Connection with Make-Whole Fundamental Changes. (a) If a Make-Whole Fundamental
Change occurs or becomes effective prior to the Maturity Date and a Holder elects to convert its Notes in connection with such
Make-Whole Fundamental Change, the Company shall, under the circumstances described below, increase the Conversion Rate for the
Notes so surrendered for conversion by a number of additional shares of Common Stock (the “Additional Shares”),
as described below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such Make-Whole
Fundamental Change if the relevant Notice of Conversion is received by the Conversion Agent from, and including, the Effective
Date of the Make-Whole Fundamental Change up to, and including, the Business Day immediately prior to the related Fundamental Change
Repurchase Date (or, in the case of a Make-Whole Fundamental Change that would have been a Fundamental Change but for the proviso
in clause (b) of the definition thereof, the 35th Trading Day immediately following the Effective Date of such Make-Whole Fundamental
Change).


 




    	47



    	 



    

 


(b)          Upon
surrender of Notes for conversion in connection with a Make-Whole Fundamental Change pursuant to Section 14.01(b)(iii), the Company
shall, at its option, satisfy the related Conversion Obligation by Physical Settlement, Cash Settlement or Combination Settlement
in accordance with Section 14.02; provided, however, that if, at the effective time of a Make-Whole Fundamental Change
described in clause (b) of the definition of Fundamental Change, the Reference Property following such Make-Whole Fundamental Change
is composed entirely of cash, for any conversion of Notes following the Effective Date of such Make-Whole Fundamental Change, the
Conversion Obligation shall be calculated based solely on the Stock Price for the transaction and shall be deemed to be an amount
of cash per $1,000 principal amount of converted Notes equal to the Conversion Rate (including any adjustment for Additional Shares),
multiplied by such Stock Price. In such event, the Conversion Obligation shall be paid to Holders in cash on the third Business
Day following the Conversion Date. The Company shall notify the Holders of Notes of the Effective Date of any Make-Whole Fundamental
Change and issue a press release announcing such Effective Date no later than five Business Days after such Effective Date.


 


(c)          The
number of Additional Shares, if any, by which the Conversion Rate shall be increased shall be determined by reference to the table
below, based on the date on which the Make-Whole Fundamental Change occurs or becomes effective (the “Effective Date”)
and the price (the “Stock Price”) paid (or deemed to be paid) per share of the Common Stock in the Make-Whole
Fundamental Change. If the holders of the Common Stock receive in exchange for their Common Stock only cash in a Make-Whole Fundamental
Change described in clause (b) of the definition of Fundamental Change, the Stock Price shall be the cash amount paid per share.
Otherwise, the Stock Price shall be the average of the Last Reported Sale Prices of the Common Stock over the five Trading Day
period ending on, and including, the Trading Day immediately preceding the Effective Date of the Make-Whole Fundamental Change.
The Board of Directors shall make appropriate adjustments to the Stock Price, in its good faith determination, to account for any
adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the
Ex-Dividend Date of the event occurs, during such five consecutive Trading Day period.


 


(d)          The
Stock Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate
of the Notes is otherwise adjusted. The adjusted Stock Prices shall equal the Stock Prices applicable immediately prior to such
adjustment, multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to such adjustment
giving rise to the Stock Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of Additional
Shares set forth in the table below shall be adjusted in the same manner and at the same time as the Conversion Rate as set forth
in Section 14.04.


 




    	48



    	 



    

  


(e)          The
following table sets forth the number of Additional Shares by which the Conversion Rate shall be increased per $1,000 principal
amount of Notes pursuant to this Section 14.03 for each Stock Price and Effective Date set forth below:


 


	 	 	Stock Price	 
	Effective Date	 	$14.54	 	 	$16.00	 	 	$17.00	 	 	$18.00	 	 	$19.00	 	 	$20.00	 	 	$22.00	 	 	$24.00	 	 	$26.00	 
	July 29, 2013	 	 	8.9707	 	 	 	5.5247	 	 	 	3.8125	 	 	 	2.5209	 	 	 	1.5747	 	 	 	0.9117	 	 	 	0.2170	 	 	 	0.0175	 	 	 	0.0000	 
	August 1, 2014	 	 	8.9707	 	 	 	6.2646	 	 	 	4.3938	 	 	 	2.9701	 	 	 	1.9116	 	 	 	1.1528	 	 	 	0.3148	 	 	 	0.0404	 	 	 	0.0000	 
	August 1, 2015	 	 	8.9707	 	 	 	6.6899	 	 	 	4.6964	 	 	 	3.1810	 	 	 	2.0565	 	 	 	1.2495	 	 	 	0.3515	 	 	 	0.0496	 	 	 	0.0000	 
	August 1, 2016	 	 	8.9707	 	 	 	6.5928	 	 	 	4.5226	 	 	 	2.9738	 	 	 	1.8518	 	 	 	1.0735	 	 	 	0.2631	 	 	 	0.0262	 	 	 	0.0000	 
	August 1, 2017	 	 	8.9707	 	 	 	5.7593	 	 	 	3.6504	 	 	 	2.1664	 	 	 	1.1821	 	 	 	0.5783	 	 	 	0.0810	 	 	 	0.0000	 	 	 	0.0000	 
	August 1, 2018	 	 	8.9707	 	 	 	2.6950	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 	 	 	0.0000	 



 


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


 


(i)          if
the Stock Price is between two Stock Prices in the table above or the Effective Date is between two Effective Dates in the table,
the number of Additional Shares shall be determined by a straight-line interpolation between the number of Additional Shares set
forth for the higher and lower Stock Prices and the earlier and later Effective Dates, as applicable, based on a 365-day year;


 


(ii)         if
the Stock Price is greater than $26.00 per share (subject to adjustment in the same manner as the Stock Prices set forth in the
column headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate;
and


 


(iii)        if
the Stock Price is less than $14.54 per share (subject to adjustment in the same manner as the Stock Prices set forth in the column
headings of the table above pursuant to subsection (d) above), no Additional Shares shall be added to the Conversion Rate.


 


Notwithstanding the foregoing, in no event
shall the Conversion Rate per $1,000 principal amount of Notes exceed 68.7757 shares of Common Stock, subject to adjustment in
the same manner as the Conversion Rate pursuant to Section 14.04.


 


(f)          Nothing
in this Section 14.03 shall prevent an adjustment to the Conversion Rate pursuant to Section 14.04 in respect of a Make-Whole Fundamental
Change.


 


Section 14.04. Adjustment of Conversion
Rate. The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except
that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes participate (other than in the case
of (x) a share split or share combination or (y) a tender or exchange offer), at the same time and upon the same terms as holders
of the Common Stock and solely as a result of holding the Notes, in any of the transactions described in this Section 14.04, without
having to convert their Notes, as if they held a number of shares of Common Stock equal to the Conversion Rate, multiplied by
the principal amount (expressed in thousands) of Notes held by such Holder.


 




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(a)          If
the Company exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Company
effects a share split or share combination, the Conversion Rate shall be adjusted based on the following formula: 


 


 


  


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or Effective Date;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or Effective Date; and
	 	 	 
	OS'	=	the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.







  


Any adjustment made under this Section 14.04(a) shall become
effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution, or immediately after
the open of business on the Effective Date for such share split or share combination, as applicable. If any dividend or distribution
of the type described in this Section 14.04(a) is declared but not so paid or made, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors determines not to pay such dividend or distribution, to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.


 


(b)          If
the Company issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for
a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of
the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such
issuance, the Conversion Rate shall be increased based on the following formula:





 


 


 




    	50



    	 



    

  


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
	 	 	 
	X	=	the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
	 	 	 
	Y	=	the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.







  


Any increase made under this Section 14.04(b) shall be made
successively whenever any such rights, options or warrants are issued and shall become effective immediately after the open of
business on the Ex-Dividend Date for such issuance. To the extent that shares of the Common Stock are not delivered after the expiration
of such rights, options or warrants, the Conversion Rate shall be decreased to the Conversion Rate that would then be in effect
had the increase with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or warrants are not so issued, the Conversion Rate
shall be decreased to the Conversion Rate that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.


 


For purposes of this Section 14.04(b) and
for the purpose of Section 14.01(b)(ii)(A), in determining whether any rights, options or warrants entitle the holders to subscribe
for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the
10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for
such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account
any consideration received by the Company for such rights, options or warrants and any amount payable on exercise or conversion
thereof, the value of such consideration, if other than cash, to be determined by the Board of Directors.


 




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(c)          If
the Company distributes shares of its Capital Stock, evidences of its indebtedness, other assets or property of the Company or
rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common
Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 14.04(a)
or Section 14.04(b), (ii) dividends or distributions paid exclusively in cash as to which an adjustment was effected pursuant to
Section 14.04(d), and (iii) Spin-Offs as to which the provisions set forth below in this Section 14.04(c) shall apply (any of such
shares of Capital Stock, evidences of indebtedness, other assets or property or rights, options or warrants to acquire Capital
Stock or other securities, the “Distributed Property”), then the Conversion Rate shall be increased based on
the following formula:





 





 


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distribution;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
	 	 	 
	SP0	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
	 	 	 
	FMV	=	the fair market value (as determined by the Board of Directors) of the Distributed Property with respect to each outstanding share of the Common Stock on the Ex-Dividend Date for such distribution.







  


Any increase made under the portion of this
Section 14.04(c) above shall become effective immediately after the open of business on the Ex-Dividend Date for such distribution.
If such distribution is not so paid or made, the Conversion Rate shall be decreased to the Conversion Rate that would then be in
effect if such distribution had not been declared. Notwithstanding the foregoing, if “FMV” (as defined above) is equal
to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common
Stock receive the Distributed Property, the amount and kind of Distributed Property such Holder would have received if such Holder
owned a number of shares of Common Stock equal to the Conversion Rate in effect on the Ex-Dividend Date for the distribution. If
the Board of Directors determines the “FMV” (as defined above) of any distribution for purposes of this Section 14.04(c)
by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market
over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period
ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.


 


With respect to an adjustment pursuant to
this Section 14.04(c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital
Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company,
that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”),
the Conversion Rate shall be increased based on the following formula:


 




    	52



    	 



    

  





 


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the end of the Valuation Period;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the end of the Valuation Period;
	 	 	 
	FMV0	=	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as set forth in Section 1.01 as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
	 	 	 
	MP0	=	the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.







  


The adjustment to the Conversion Rate under the preceding paragraph
shall occur on the last Trading Day of the Valuation Period; provided that in respect of any conversion of Notes during
the Valuation Period, references in the portion of this Section 14.04(c) related to Spin-Offs with respect to 10 Trading Days shall
be deemed to be replaced with such lesser number of Trading Days as have elapsed between the Ex-Dividend Date of such Spin-Off
and the Conversion Date in determining the Conversion Rate. If the Ex-Dividend Date of the Spin-Off is after the 10th Trading Day
immediately preceding, and including, the end of any Observation Period in respect of a conversion of Notes, references in the
preceding paragraph to 10 Trading Days will be deemed to be replaced, solely in respect of that conversion of Notes, with such
lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date for the Spin-Off to, and including, the
last Trading Day of such Observation Period.


 




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For purposes of this Section 14.04(c) (and
subject in all respect to Section 14.11), rights, options or warrants
distributed by the Company to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Company’s
Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until
the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such
shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock,
shall be deemed not to have been distributed for purposes of this Section 14.04(c) (and no adjustment to the Conversion Rate under
this Section 14.04(c) will be required) until the occurrence of
the earliest Trigger Event, whereupon such rights, options or 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 14.04(c). If any such right, option or
warrant, including any such existing rights, options or warrants distributed prior to the date of this Supplemental Indenture,
are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the
date of distribution and Ex-Dividend Date with respect to new rights, options or warrants with such rights (in which case the existing
rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).
In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or
other event (of the type described in the immediately 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 14.04(c) was made, (1) in the
case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof,
upon such final redemption or purchase (x) the Conversion Rate shall be readjusted as if such rights, options or warrants had not
been issued and (y) the Conversion Rate shall then again be readjusted to give effect to such distribution, deemed distribution
or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price
received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained
such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in
the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof,
the Conversion Rate shall be readjusted as if such rights, options and warrants had not been issued.


 


For purposes of Section 14.04(a),
Section 14.04(b) and this Section 14.04(c), if any dividend or
distribution to which this Section 14.04(c) is applicable also includes one or both of:


 


(A)         a
dividend or distribution of shares of Common Stock to which Section 14.04(a) is applicable (the “Clause A Distribution”);
or


 


(B)         a
dividend or distribution of rights, options or warrants to which Section 14.04(b) is applicable (the “Clause B Distribution”),


 


then, in either case, (1) such dividend or
distribution, other than the Clause A Distribution and the Clause B Distribution, shall be deemed to be a dividend or distribution
to which this Section 14.04(c) is applicable (the “Clause
C Distribution”) and any Conversion Rate adjustment required by this Section 14.04(c) with respect to such Clause C Distribution
shall then be made, and (2) the Clause A Distribution and Clause B Distribution shall be deemed to immediately follow the Clause
C Distribution and any Conversion Rate adjustment required by Section 14.04(a) and Section 14.04(b) with respect thereto shall
then be made, except that, if determined by the Company (I) the “Ex-Dividend Date” of the Clause A Distribution and
the Clause B Distribution shall be deemed to be the Ex-Dividend Date of the Clause C Distribution and (II) any shares of Common
Stock included in the Clause A Distribution or Clause B Distribution shall be deemed not to be “outstanding immediately prior
to the open of business on such Ex-Dividend Date or Effective Date” within the meaning of Section 14.04(a) or “outstanding
immediately prior to the open of business on such Ex-Dividend Date” within the meaning of Section 14.04(b).


 




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(d)          If
any cash dividend or distribution is made to all or substantially all holders of the Common Stock, other than a regular, monthly
(or other regular dividend period the Company has at the time) cash dividend that does not exceed $0.07583 per share (or proportionally
adjusted for any change in the Company’s regular monthly dividend period) (the “Initial Dividend Threshold”),
the Conversion Rate shall be adjusted based on the following formula:





 





 


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the open of business on the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	SP0	=	the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution;
	 	 	 
	T	=	the Initial Dividend Threshold; provided that if the dividend or distribution is not a regular cash dividend, the Initial Dividend Threshold shall be deemed to be zero; and
	 	 	 
	C	=	the amount in cash per share the Company distributes to all or substantially all holders of the Common Stock.







  


The Initial Dividend Threshold shall be subject to adjustment
in a manner inversely proportional to adjustments to the Conversion Rate; provided that no adjustment shall be made to the
Initial Dividend Threshold for any adjustment to the Conversion Rate pursuant to this Section 14.04(d).


 


Any increase pursuant to this Section 14.04(d)
shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution.
If such dividend or distribution is not so paid, the Conversion Rate shall be decreased, effective as of the date the Board of
Directors determines not to make or pay such dividend or distribution, to be the Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. Notwithstanding the foregoing, if “C” (as defined above) is equal
to or greater than “SP0” (as defined above), in lieu of the foregoing increase, each Holder of a Note shall
receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common
Stock, the amount of cash that such Holder would have received if such Holder owned a number of shares of Common Stock equal to
the Conversion Rate on the Ex-Dividend Date for such cash dividend or distribution.


 




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(e)          If
the Company or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock, to the extent
that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of
the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the
Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer,
the Conversion Rate shall be increased based on the following formula:


 





 


where,


 





	CR0	=	the Conversion Rate in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
	 	 	 
	CR'	=	the Conversion Rate in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
	 	 	 
	AC	=	the aggregate value of all cash and any other consideration (as determined by the Board of Directors) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
	 	 	 
	OS0	=	the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
	 	 	 
	OS'	=	the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
	 	 	 
	SP'	=	the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.




 




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The adjustment to the Conversion Rate under this Section 14.04(e)
shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next
succeeding the date such tender or exchange offer expires; provided that in respect of any conversion of Notes within the
10 Trading Days immediately following, and including, the expiration date of any tender or exchange offer, references in this Section
14.04(e) with respect to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed between
the date that such tender or exchange offer expires and the Conversion Date in determining the Conversion Rate. In addition, if
the Trading Day next succeeding the date such tender or exchange offer expires is after the 10th Trading Day immediately preceding,
and including, the end of any Observation Period in respect of a conversion of Notes, references in the preceding paragraph to
10 Trading Days shall be deemed to be replaced, solely in respect of that conversion of Notes, with such lesser number of Trading
Days as have elapsed from, and including, the Trading Day next succeeding the date such tender or exchange offer expires to, and
including, the last Trading Day of such Observation Period.


 


(f)          Notwithstanding
this Section 14.04 or any other provision of the Indenture or the Notes, if a Conversion Rate adjustment becomes effective on any
Ex-Dividend Date, and a Holder that has converted its Notes on or after such Ex-Dividend Date and on or prior to the related Record
Date would be treated as the record holder of the shares of Common Stock as of the related Conversion Date as described under Section
14.02(i) based on an adjusted Conversion Rate for such Ex-Dividend Date, then, notwithstanding the Conversion Rate adjustment provisions
in this Section 14.04, the Conversion Rate adjustment relating to such Ex-Dividend Date shall not be made for such converting Holder.
Instead, such Holder shall be treated as if such Holder were the record owner of the shares of Common Stock on an unadjusted basis
and participate in the related dividend, distribution or other event giving rise to such adjustment.


 


(g)          Except
as stated herein, the Company shall not adjust the Conversion Rate for the issuance of shares of the Common Stock or any securities
convertible into or exchangeable for shares of the Common Stock or the right to purchase shares of the Common Stock or such convertible
or exchangeable securities.


 


(h)          In
addition to those adjustments required by clauses (a), (b), (c), (d) and (e) of this Section 14.04, and to the extent permitted
by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed,
the Company from time to time may increase the Conversion Rate by any amount for a period of at least 20 Business Days if the Board
of Directors determines that such increase would be in the Company’s best interest. In addition, to the extent permitted
by applicable law and subject to the applicable rules of any exchange on which any of the Company’s securities are then listed,
the Company may (but is not required to) increase the Conversion Rate to avoid or diminish any income tax to holders of Common
Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to
acquire shares of Common Stock) or similar event. Whenever the Conversion Rate is increased pursuant to either of the preceding
two sentences, the Company shall mail to the Holder of each Note at its last address appearing on the Note Register a notice of
the increase at least 15 days prior to the date the increased Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.


 


(i)          Except
as described above in this Article 14, the Conversion Rate shall not be adjusted:


 




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


 


(ii)         upon
the issuance of any shares of Common Stock or options or rights to purchase those shares pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or any of the Company’s Subsidiaries;


 


(iii)        upon
the issuance of any shares of the Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or convertible
security not described in clause (ii) of this subsection and outstanding as of the date the Notes were first issued;


 


(iv)        solely
for a change in the par value of the Common Stock or a change in the Company’s jurisdiction of incorporation;


 


(v)         for
accrued and unpaid interest, if any; or


 


(vi)        for
an event otherwise requiring an adjustment, as described herein if such event is not consummated.


 


(j)          All
calculations and other determinations under this Article 14 shall be made by the Company and shall be made to the nearest one-ten
thousandth (1/10,000th) of a share. The Company shall not be required to make an adjustment in the Conversion Rate unless such
adjustment would require a change of at least 1% in the Conversion Rate. However, the Company shall carry forward any adjustments
that are less than 1% of the Conversion Rate and make such carried forward adjustment, regardless of whether the aggregate adjustment
is less than 1%, on the Conversion Date for any Notes and on each Trading Day of any Observation Period for any converted Notes.


 


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


 




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(l)          For
purposes of this Section 14.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common
Stock held in the treasury of the Company so long as the Company does not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company, but shall include shares of Common Stock issuable in respect of scrip certificates
issued in lieu of fractions of shares of Common Stock.


 


Section 14.05. Adjustments of Prices.
Whenever any provision of the Indenture requires the Company to calculate the Last Reported Sale Prices, the Daily VWAPs, the
Daily Conversion Values or the Daily Settlement Amounts over a span of multiple days (including an Observation Period and the period
for determining the Stock Price for purposes of a Make-Whole Fundamental Change), the Board of Directors shall make appropriate
adjustments to each to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment
to the Conversion Rate where the Ex-Dividend Date of the event occurs, at any time during the period when the Last Reported Sale
Prices, the Daily VWAPs, the Daily Conversion Values or the Daily Settlement Amounts are to be calculated.


 


Section 14.06. Shares to Be Fully Paid.
The Company shall provide, free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient
shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion (assuming
that at the time of computation of such number of shares, all such Notes would be converted by a single Holder and that Physical
Settlement is applicable).


 


Section 14.07. Effect of Recapitalizations,
Reclassifications and Changes of the Common Stock.


 


(a)          In
the case of:


 


(i)          any
recapitalization, reclassification or change of the Common Stock (other than changes resulting from a subdivision or combination),


 


(ii)         any
consolidation, merger or combination involving the Company,


 


(iii)        any
sale, lease or other transfer to a third party of the consolidated assets of the Company and the Company’s Subsidiaries substantially
as an entirety or


 


(iv)        any
statutory share exchange,


 




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in each case, as a result of which the Common
Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination
thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the
right to convert each $1,000 principal amount of Notes shall be changed into a right to convert such principal amount of Notes
into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof)
that a holder of a number of shares of Common Stock equal to the Conversion Rate immediately prior to such Merger Event would have
owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property”
meaning the kind and amount of Reference Property that a holder of one share of Common Stock is entitled to receive) upon such
Merger Event and, prior to or at the effective time of such Merger Event, the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture permitted under Section 10.01(f) providing for such change
in the right to convert each $1,000 principal amount of Notes; provided, however, that at and after the effective
time of the Merger Event (A) the Company shall continue to have the right to determine the form of consideration to be paid or
delivered, as the case may be, upon conversion of Notes in accordance with Section 14.02 and (B) (I) any amount payable in cash
upon conversion of the Notes in accordance with Section 14.02 shall continue to be payable in cash, (II) any shares of Common Stock
that the Company would have been required to deliver upon conversion of the Notes in accordance with Section 14.02 shall instead
be deliverable in the amount and type of Reference Property that a holder of that number of shares of Common Stock would have been
entitled to receive in such Merger Event and (III) the Daily VWAP shall be calculated based on the value of a unit of Reference
Property.


 


If the Merger Event causes the Common Stock
to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part
upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed
to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively
make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration
actually received by the holders of Common Stock, and (ii) the unit of Reference Property for purposes of the immediately preceding
paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock. If the holders
of the Common Stock receive only cash in such Merger Event, then for all conversions for which the relevant Conversion Date occurs
after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Notes
shall be solely cash in an amount equal to the Conversion Rate in effect on the Conversion Date (as may be increased by any Additional
Shares pursuant to Section 14.03), multiplied by the price paid per share of Common Stock in such Merger Event and (B) the
Company shall satisfy the Conversion Obligation by paying cash to converting Holders on the third Business Day immediately following
the relevant Conversion Date. The Company shall notify Holders, the Trustee and the Conversion Agent (if other than the Trustee)
of such weighted average as soon as practicable after such determination is made.


 


Such supplemental indenture described in
the second immediately preceding paragraph shall provide for anti-dilution and other adjustments that shall be as nearly equivalent
as is possible to the adjustments provided for in this Article 14. If, in the case of any Merger Event, the Reference Property
includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other
than the successor or purchasing corporation, as the case may be, in such Merger Event, then such supplemental indenture shall
also be executed by such other Person and shall contain such additional provisions to protect the interests of the Holders of the
Notes as the Board of Directors shall reasonably consider necessary by reason of the foregoing, including, to the extent required
by the Board of Directors and practicable, the provisions providing for the repurchase rights set forth in Article 15.


 




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(b)          When
the Company executes a supplemental indenture pursuant to subsection (a) of this Section 14.07, the Company shall promptly file
with the Trustee an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or
property or asset that will comprise a unit of Reference Property after any such Merger Event, any adjustment to be made with respect
thereto and that all conditions precedent have been complied with, and shall promptly mail notice thereof to all Holders. The Company
shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at its address appearing on the
Note Register provided for in the Indenture, within 20 days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.


 


(c)          The
Company shall not become a party to any Merger Event unless its terms are consistent with this Section 14.07. None of the foregoing
provisions shall affect the right of a Holder of Notes to convert its Notes into cash, shares of Common Stock or a combination
of cash and shares of Common Stock, as applicable, as set forth in Section 14.01 and Section 14.02 prior to the effective date
of such Merger Event.


 


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


 


(e)          In
connection with any Merger Event, the Initial Dividend Threshold shall be subject to adjustment as described in clause (i), clause
(ii) or clause (iii) below, as the case may be.


 


(i)          In
the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding
any dissenters’ appraisal rights) is composed entirely of shares of common stock (the “Merger Common Stock”),
the Initial Dividend Threshold at and after the effective time of such Merger Event will be equal to (x) the Initial Dividend Threshold
immediately prior to the effective time of such Merger Event, divided by (y) the number of shares of Merger Common Stock
that a holder of one share of Common Stock would receive in such Merger Event (such quotient rounded down to the nearest cent).


 


(ii)         In
the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to subsection (a) above and excluding
any dissenters’ appraisal rights) is composed in part of shares of Merger Common Stock, the Initial Dividend Threshold at
and after the effective time of such Merger Event will be equal to (x) the Initial Dividend Threshold immediately prior to the
effective time of such Merger Event, multiplied by (y) the Merger Valuation Percentage for such Merger Event (such product
rounded down to the nearest cent).


 


(iii)        For
the avoidance of doubt, in the case of a Merger Event in which the Reference Property (determined, as appropriate, pursuant to
subsection (a) above and excluding any dissenters’ appraisal rights) is composed entirely of consideration other than shares
of common stock, the Initial Dividend Threshold at and after the effective time of such Merger Event will be equal to zero.


 




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Section 14.08. Certain Covenants.
(a) The Company covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable
by the Company and free from all taxes, liens and charges (other than those created by the Holder) with respect to the issue thereof.


 


(b)          The
Company covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly
issued upon conversion, the Company will, to the extent then permitted by the rules and interpretations of the Commission, secure
such registration or approval, as the case may be.


 


(c)          The
Company further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated
quotation system the Company will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated
quotation system, any Common Stock issuable upon conversion of the Notes.


 


Section 14.09. Responsibility of Trustee.
The Trustee and any other Conversion Agent shall not at any time be under any duty or responsibility to any Holder to determine
the Conversion Rate (or any adjustment thereto) or whether any facts exist that may require any adjustment (including any increase)
of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect
to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and
any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any shares
of Common Stock, or of any securities, property or cash that may at any time be issued or delivered upon the conversion of any
Note; and the Trustee and any other Conversion Agent make no representations with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or
stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the Company contained in this Article. Without limiting the generality
of the foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to determine the correctness of
any provisions contained in any supplemental indenture entered into pursuant to Section 14.07 relating either to the kind or amount
of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of their Notes after any
event referred to in such Section 14.07 or to any adjustment to be made with respect thereto, but, subject to the provisions of
Section 7.01 of the Base Indenture, may accept (without any independent
investigation) as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto. Neither the Trustee nor the Conversion Agent shall be responsible for determining whether any event contemplated
by Section 14.01(b) has occurred that makes the Notes eligible for conversion or no longer eligible therefor until the Company
has delivered to the Trustee and the Conversion Agent the notices referred to in Section 14.01(b) with respect to the commencement
or termination of such conversion rights, on which notices the Trustee and the Conversion Agent may conclusively rely, and the
Company agrees to deliver such notices to the Trustee and the Conversion Agent immediately after the occurrence of any such event
or at such other times as shall be provided for in Section 14.01(b).


 




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Section 14.10. Notice to Holders Prior
to Certain Actions. In case of any:


 


(a)          action
by the Company or one of its Subsidiaries that would require an adjustment in the Conversion Rate pursuant to Section 14.04
or Section 14.11;


 


(b)          Merger
Event; or


 


(c)          voluntary
or involuntary dissolution, liquidation or winding-up of the Company or any of its Subsidiaries;


 


then, in each case (unless notice of such event is otherwise
required pursuant to another provision of the Indenture), the Company shall cause to be filed with the Trustee and the Conversion
Agent (if other than the Trustee) and to be mailed to each Holder at its address appearing on the Note Register, as promptly as
possible but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on
which a record is to be taken for the purpose of such action by the Company or one of its Subsidiaries or, if a record is not to
be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the
Company or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected
to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled
to exchange their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or
winding-up. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the
Company or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up.


 


Section 14.11. Stockholder Rights Plans.
If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued
upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the
Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such
stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights
have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan so that
the Holders would not be entitled to receive any rights in respect of Common Stock, if any, issuable upon conversion of the Notes,
the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders
of the Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration,
termination or redemption of such rights.


 




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Section 14.12. Limit on Issuance of Shares
of Common Stock Upon Conversion. Notwithstanding anything to the contrary in the Indenture, if an event occurs that would result
in an increase in the Conversion Rate by an amount in excess of limitations imposed by any shareholder approval rules or listing
standards of any national or regional securities exchange that are applicable to the Company, the Company will, at its option,
either obtain stockholder approval of any issuance of Common Stock upon conversion of the Notes in excess of such limitations or
pay cash in lieu of delivering any shares of Common Stock otherwise deliverable upon conversions in excess of such limitations
based on the Daily VWAP for each Trading Day of the relevant Observation Period in respect of which, in lieu of delivering shares
of Common Stock, the Company pays cash pursuant to this Section 14.12.


 


Section 14.13. Ownership Limit. Notwithstanding
any other provision of the Indenture or the Notes, no Holder of Notes shall be entitled to convert such Notes into shares of Common
Stock to the extent that receipt of such shares would cause such Holder (or any other Person) to exceed the ownership limitations
contained in Section 4.07 of the Articles of Amendment and Restatement of the Company dated as of July 5, 2011, filed with the
State Department of Assessments and Taxation of Maryland, as amended on July 2, 2013 and as amended, supplemented or restated from
time to time.


 


Article
15


Repurchase of Notes at Option of Holders


 


Section 15.01. [Intentionally Omitted].


 


Section 15.02. Repurchase at Option
of Holders Upon a Fundamental Change. (a) If a Fundamental Change occurs at any time, each Holder shall have the right, at
such Holder’s option, to require the Company to repurchase for cash all of such Holder’s Notes, or any portion thereof
that is equal to $1,000 or an integral multiple of $1,000, on the date (the “Fundamental Change Repurchase Date”)
specified by the Company that is not less than 20 calendar days or more than 35 calendar days following the date of the Fundamental
Change Company Notice at a repurchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”),
unless the Fundamental Change Repurchase Date falls after a Regular Record Date but on or prior to the Interest Payment Date to
which such Regular Record Date relates, in which case the Company shall instead pay the full amount of accrued and unpaid interest
to Holders of record as of such Regular Record Date, and the Fundamental Change Repurchase Price shall be equal to 100% of the
principal amount of Notes to be repurchased pursuant to this Article 15.


 


(b)          Repurchases
of Notes under this Section 15.02 shall be made, at the option of the Holder thereof, upon:


 


(i)          delivery
to the Paying Agent by a Holder of a duly completed notice (the “Fundamental Change Repurchase Notice”) in the
form set forth in Attachment 2 to the Form of Note attached hereto as Exhibit A, if the Notes are Physical Notes, or in compliance
with the Depositary’s procedures for surrendering interests in Global Notes, if the Notes are Global Notes, in each case
on or before the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date; and


 




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(ii)         delivery
of the Notes, if the Notes are Physical Notes, to the Paying Agent at any time after delivery of the Fundamental Change Repurchase
Notice (together with all necessary endorsements for transfer) at the Corporate Trust Office of the Paying Agent, or book-entry
transfer of the Notes, if the Notes are Global Notes, in compliance with the procedures of the Depositary, in each case such delivery
being a condition to receipt by the Holder of the Fundamental Change Repurchase Price therefor.


 


The Fundamental Change Repurchase Notice
in respect of any Notes to be repurchased shall state:


 


(i)          in
the case of Physical Notes, the certificate numbers of the Notes to be delivered for repurchase;


 


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


 


(iii)        that
the Notes are to be repurchased by the Company pursuant to the applicable provisions of the Notes and the Indenture;


 


provided, however, that if the Notes are Global
Notes, the Fundamental Change Repurchase Notice must comply with appropriate Depositary procedures.


 


Notwithstanding anything herein to the contrary,
any Holder delivering to the Paying Agent the Fundamental Change Repurchase Notice contemplated by this Section 15.02 shall have
the right to withdraw, in whole or in part, such Fundamental Change Repurchase Notice at any time prior to the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase Date by delivery of a written notice of withdrawal
to the Paying Agent in accordance with Section 15.03.


 


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


 


(c)          On
or before the 20th calendar day after the occurrence of the effective date of a Fundamental Change, the Company shall provide to
all Holders of Notes and the Trustee and the Paying Agent (in the case of a Paying Agent other than the Trustee) a notice (the
“Fundamental Change Company Notice”) of the occurrence of the effective date of the Fundamental Change and of
the repurchase right at the option of the Holders arising as a result thereof. In the case of Physical Notes, such notice shall
be by first class mail or, in the case of Global Notes, such notice shall be delivered in accordance with the applicable procedures
of the Depositary. Simultaneously with providing such notice, the Company shall publish a notice containing the information set
forth in the Fundamental Change Company Notice in a newspaper of general circulation in The City of New York or publish such information
on the Company’s website or through such other public medium as the Company may use at that time. Each Fundamental Change
Company Notice shall specify:


 




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(i)          the
events causing the Fundamental Change;


 


(ii)         the
date of the Fundamental Change;


 


(iii)        the
last date on which a Holder may exercise the repurchase right pursuant to this Article 15;


 


(iv)        the
Fundamental Change Repurchase Price;


 


(v)         the
Fundamental Change Repurchase Date;


 


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


 


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


 


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


 


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


 


No failure of the Company to give the foregoing
notices and no defect therein shall limit the Holders’ repurchase rights or affect the validity of the proceedings for the
repurchase of the Notes pursuant to this Section 15.02.


 


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


 


(d)          Notwithstanding
the foregoing, no Notes may be repurchased by the Company on any date at the option of the Holders upon a Fundamental Change if
the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to such date
(except in the case of an acceleration resulting from a Default by the Company in the payment of the Fundamental Change Repurchase
Price with respect to such Notes). The Paying Agent will promptly return to the respective Holders thereof any Physical Notes held
by it during the acceleration of the Notes (except in the case of an acceleration resulting from a Default by the Company in the
payment of the Fundamental Change Repurchase Price with respect to such Notes), or any instructions for book-entry transfer of
the Notes in compliance with the procedures of the Depositary shall be deemed to have been cancelled, and, upon such return or
cancellation, as the case may be, the Fundamental Change Repurchase Notice with respect thereto shall be deemed to have been withdrawn.


 




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Section 15.03. Withdrawal of Fundamental
Change Repurchase Notice. (a) A Fundamental Change Repurchase Notice may be withdrawn (in whole or in part) by means of a written
notice of withdrawal delivered to the Corporate Trust Office of the Paying Agent in accordance with this Section 15.03 at any time
prior to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date, specifying:


 


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


 


(ii)         if
Physical Notes have been issued, the certificate number of the Note in respect of which such notice of withdrawal is being submitted,
and


 


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


 


provided, however, that if the Notes are Global
Notes, the notice must comply with appropriate procedures of the Depositary.


 


Section 15.04. Deposit of Fundamental
Change Repurchase Price. (a) The Company will deposit with the Trustee (or other Paying Agent appointed by the Company, or
if the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 4.01) on or prior
to 11:00 a.m., New York City time, on the Fundamental Change Repurchase Date an amount of money sufficient to repurchase all of
the Notes to be repurchased at the appropriate Fundamental Change Repurchase Price. Subject to receipt of funds and/or Notes by
the Trustee (or other Paying Agent appointed by the Company), payment for Notes surrendered for repurchase (and not withdrawn prior
to the close of business on the Business Day immediately preceding the Fundamental Change Repurchase Date) will be made on the
later of (i) the Fundamental Change Repurchase Date (provided the Holder has satisfied the conditions in Section 15.02)
and (ii) the time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent appointed by the Company)
by the Holder thereof in the manner required by Section 15.02 by
mailing checks for the amount payable to the Holders of such Notes entitled thereto as they shall appear in the Note Register;
provided, however, that payments to the Depositary shall be made by wire transfer of immediately available funds
to the account of the Depositary or its nominee. The Trustee shall, promptly after such payment and upon written demand by the
Company, return to the Company any funds in excess of the Fundamental Change Repurchase Price.


 




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(b)          If
by 11:00 a.m. New York City time, on the Fundamental Change Repurchase Date, the Trustee (or other Paying Agent appointed by the
Company) holds money sufficient to make payment on all the Notes or portions thereof that are to be repurchased on such Fundamental
Change Repurchase Date, then, with respect to the Notes that have been properly surrendered for repurchase and have not been validly
withdrawn, (i) such Notes will cease to be outstanding, (ii) interest will cease to accrue on such Notes (whether or not book-entry
transfer of the Notes has been made or the Notes have been delivered to the Trustee or Paying Agent) and (iii) all other rights
of the Holders of such Notes will terminate (other than the right to receive the Fundamental Change Repurchase Price).


 


(c)          Upon
surrender of a Note that is to be repurchased in part pursuant to Section 15.02, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Note in an authorized denomination equal in principal amount to the unrepurchased
portion of the Note surrendered.


 


Section 15.05. Covenant to Comply with
Applicable Laws Upon Repurchase of Notes. In connection with any repurchase offer, the Company will, if required:


 


(a)          comply
with the provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable;


 


(b)          file
a Schedule TO or any other required schedule under the Exchange Act; and


 


(c)          otherwise
comply with all federal and state securities laws in connection with any offer by the Company to repurchase the Notes;


 


in each case, so as to permit the rights and
obligations under this Article 15 to be exercised in the time and in the manner specified in this Article 15.


 


Article
16


Redemption to Preserve REIT Status


 


Section 16.01. Applicability of Article
III of the Base Indenture. Article III of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth
in this Article 16 shall, with respect to the Notes, supersede
in its entirety Article III of the Base Indenture, and all references in the Base Indenture to Article III thereof and the provisions
therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article
16 and the applicable provisions set forth in this Article 16,
respectively.


 


Section 16.02. Redemption to Preserve
REIT Status. No sinking fund is provided for the Notes. The Notes shall not be redeemable by the Company prior to the Maturity
Date except to the extent, and only to the extent, necessary to preserve the Company’s status as a REIT. If the Company determines
that it is necessary to redeem the Notes prior to the Maturity Date to preserve its status as a REIT, the Company may redeem (a
“Redemption”) for cash all or part of the Notes as necessary to preserve REIT status, at the Redemption Price.


 




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Section 16.03. Notice of Redemption;
Selection of Notes. (a) In case the Company exercises its Redemption right to redeem all or, as the case may be, any part of
the Notes pursuant to Section 16.01, it shall fix a date for redemption (each, a “Redemption Date”) and it or,
at its written request received by the Trustee not less than 55 calendar days prior to the Redemption Date (or such shorter period
of time as may be acceptable to the Trustee), the Trustee, in the name of and at the expense of the Company, shall mail or electronically
deliver or cause to be mailed or electronically delivered a notice of such Redemption (a “Redemption Notice”)
not less than 45 nor more than 60 calendar days prior to the Redemption Date to each Holder of Notes so to be redeemed as a whole
or in part at its last address as the same appears on the Note Register; provided, however, that, if the Company
shall give such notice, it shall also give written notice of the Redemption Date to the Trustee. The Redemption Date must be a
Business Day.


 


(b)          The
Redemption Notice, if mailed or electronically delivered in the manner herein provided, shall be conclusively presumed to have
been duly given, whether or not the Holder receives such notice. In any case, failure to give such Redemption Notice by mail or
electronic delivery or any defect in the Redemption Notice to the Holder of any Note designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any other Note.


 


(c)          Each
Redemption Notice shall specify:


 


(i)          the
Redemption Date;


 


(ii)         the
Redemption Price;


 


(iii)        that
on the Redemption Date, the Redemption Price will become due and payable upon each Note to be redeemed, and that interest thereon,
if any, shall cease to accrue on and after the Redemption Date;


 


(iv)        the
place or places where such Notes are to be surrendered for payment of the Redemption Price;


 


(v)         that
Holders may surrender their Notes for conversion at any time prior to the close of business on the third Scheduled Trading Day
immediately preceding the Redemption Date;


 


(vi)        the
procedures a converting Holder must follow to convert its Notes and the Settlement Method and Specified Dollar Amount, if applicable;


 


(vii)       the
Conversion Rate and, if applicable, the number of Additional Shares added to the Conversion Rate in accordance with Section 14.03;


 


(viii)      the
CUSIP, ISIN or other similar numbers, if any, assigned to such Notes; and


 




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(ix)         in
case any Note is to be redeemed in part only, the portion of the principal amount thereof to be redeemed and on and after the Redemption
Date, upon surrender of such Note, a new Note in principal amount equal to the unredeemed portion thereof shall be issued.


 


A Redemption Notice shall be irrevocable.


 


(d)          If
fewer than all of the outstanding Notes are to be redeemed, the Trustee shall select the Notes or portions thereof of a Global
Note or the Notes in certificated form to be redeemed (in principal amounts of $1,000 or multiples thereof) by lot, on a pro
rata basis or by another method the Trustee considers to be fair and appropriate. If any Note selected for partial redemption
is submitted for conversion in part after such selection, the portion of the Note submitted for conversion shall be deemed (so
far as may be possible) to be the portion selected for redemption.


 


Section 16.04. Payment of Notes Called
for Redemption. (a) If any Redemption Notice has been given in respect of the Notes in accordance with Section 16.03, the Notes
shall become due and payable on the Redemption Date at the place or places stated in the Redemption Notice and at the applicable
Redemption Price. On presentation and surrender of the Notes at the place or places stated in the Redemption Notice, the Notes
shall be paid and redeemed by the Company at the applicable Redemption Price.


 


(b)          Prior
to the open of business on the Redemption Date, the Company shall deposit with the Paying Agent or, if the Company or a Subsidiary
of the Company is acting as the Paying Agent, shall segregate and hold in trust as provided in Section 7.06 of the Base Indenture
an amount of cash (in immediately available funds if deposited on the Redemption Date), sufficient to pay the Redemption Price
of all of the Notes to be redeemed on such Redemption Date. Subject to receipt of funds by the Paying Agent, payment for the Notes
to be redeemed shall be made promptly after the later of:


 


(i)          the
Redemption Date for such Notes; and


 


(ii)         the
time of presentation of such Note to the Trustee (or other Paying Agent appointed by the Company) by the Holder thereof in the
manner required by this Section 16.04.


 


The Paying Agent shall, promptly after such
payment and upon written demand by the Company, return to the Company any funds in excess of the Redemption Price.


 


Section 16.05. Restrictions on Redemption.
The Company may not redeem any Notes on any date if the principal amount of the Notes has been accelerated in accordance with the
terms of the Indenture, and such acceleration has not been rescinded, on or prior to the Redemption Date (except in the case of
an acceleration resulting from a Default by the Company in the payment of the Redemption Price with respect to such Notes).


 




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Article
17


Miscellaneous Provisions


 


Section 17.01. Provisions Binding on
Company’s Successors. All the covenants, stipulations, promises and agreements of the Company contained in the Indenture
shall bind its successors and assigns whether so expressed or not.


 


Section 17.02. Official Acts by Successor
Corporation. Any act or proceeding by any provision of the Indenture authorized or required to be done or performed by any
board, committee or Officer of the Company shall and may be done and performed with like force and effect by the like board, committee
or officer of any corporation or other entity that shall at the time be the lawful sole successor of the Company.


 


Section 17.03. Governing Law; Jurisdiction.
THIS SUPPLEMENTAL INDENTURE AND EACH NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS SUPPLEMENTAL
INDENTURE AND EACH NOTE, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS THEREOF).


 


The Company irrevocably consents and agrees,
for the benefit of the Holders from time to time of the Notes and the Trustee, that any legal action, suit or proceeding against
it with respect to obligations, liabilities or any other matter arising out of or in connection with this Supplemental Indenture
or the Notes may be brought in the courts of the State of New York or the courts of the United States located in the Borough of
Manhattan, New York City, New York and, until amounts due and to become due in respect of the Notes have been paid, hereby irrevocably
consents and submits to the non-exclusive jurisdiction of each such court in personam, generally and unconditionally with
respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.


 


The Company irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any
of the aforesaid actions, suits or proceedings arising out of or in connection with this Supplemental Indenture brought in the
courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York
and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient forum.


 


Section 17.04. Legal Holidays. This
Section 17.04 shall supersede Section 13.08 of the Base Indenture, and
any reference in the Base Indenture to Section 13.08 thereof shall be deemed to refer instead to this Section 17.04.
In any case where any Interest Payment Date, Fundamental Change Repurchase Date or Maturity Date is not a Business Day,
then any action to be taken on such date need not be taken on such date, but may be taken on the next succeeding Business Day with
the same force and effect as if taken on such date, and no interest shall accrue in respect of the delay.


 




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Section 17.05. No Security Interest Created.
Nothing in the Indenture or in the Notes, expressed or implied, shall be construed to constitute a security interest under the
Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction.


 


Section 17.06. Table of Contents, Headings,
Etc. The table of contents and the titles and headings of the articles and sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.


 


Section 17.07. Execution in 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. The exchange of copies of this Supplemental Indenture and of signature
pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the
parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.


 


Section 17.08. Severability. In the
event any provision of this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired.


 


Section 17.09. Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.


 


Section 17.10. Force Majeure. In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon
as practicable under the circumstances.


 


Section 17.11. Calculations. Except
as otherwise provided herein, the Company shall be responsible for making all calculations called for under the Notes. These calculations
include, but are not limited to, determinations of the Last Reported Sale Prices of the Common Stock, the Daily VWAPs, the Daily
Conversion Values, the Daily Settlement Amounts, accrued interest payable on the Notes and the Conversion Rate of the Notes. The
Company shall make all these calculations in good faith and, absent manifest error, the Company’s calculations shall be final
and binding on Holders of Notes. The Company shall provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy of the Company’s calculations
without independent verification. The Trustee will forward the Company’s calculations to any Holder of Notes upon the request
of that Holder at the sole cost and expense of the Company.


 




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Section 17.12. USA PATRIOT Act. The
parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information
that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to
the Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy
the requirements of the USA PATRIOT Act.


 


Section 17.13. The Trustee. In entering
into and performing in accordance with this Supplemental Indenture, the Trustee (in each of its representative capacities, including
Conversion Agent and Bid Solicitation Agent) shall have all of the rights, benefits, protections and immunities afforded to it
under the Base Indenture, in addition to the rights, benefits, protections and immunities afforded to it hereunder.


 


[Remainder of page
intentionally left blank] 


 




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


 





	 	AMERICAN REALTY CAPITAL PROPERTIES, INC.
	 	 	 
	 	By:	/s/ Brian S. Block
	 	 	Name: Brian S. Block
	 	 	Title: Chief Financial Officer and Executive Vice President
	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as Trustee
	 	 	 
	 	By:	/s/ Karen R. Beard
	 	 	Name: Karen R. Beard
	 	 	Title: Vice President


  




    	 



    	 



    

 


EXHIBIT A


 


[FORM OF FACE OF NOTE]


 


[INCLUDE FOLLOWING LEGEND
IF A GLOBAL NOTE]


 


[THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR
A NOMINEE OF THE 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, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY
OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.]


 




    	A-1



    	 



    

  


American Realty Capital Properties, Inc.



3.00% Convertible Senior Note due 2018


 


No. [_____]                                                                                          [Initially]1 $[_________]


 


CUSIP No. 02917T AA2


 


American Realty Capital Properties, Inc.,
a corporation duly organized and validly existing under the laws of the State of Maryland (the “Company,” which
term includes any successor corporation or other entity under the Indenture referred to on the reverse hereof), for value received
hereby promises to pay to [CEDE & CO.]2 [_______]3, or registered assigns, the principal sum [as set
forth in the “Schedule of Exchanges of Notes” attached hereto]4 [of $[_______]]5, which amount,
taken together with the principal amounts of all other outstanding Notes, shall not, unless permitted by the Indenture, exceed
$300,000,000 in aggregate at any time (or $330,000,000 if the Underwriters exercise their over-allotment option in full as set
forth in the Underwriting Agreement), in accordance with the rules and procedures of the Depositary, on August 1, 2018, and interest
thereon as set forth below.


 


This Note shall bear interest at the rate
of 3.00% per year from July 29, 2013, or from the most recent date to which interest had been paid or provided for to, but excluding,
the next scheduled Interest Payment Date until August 1, 2018. Interest is payable semi-annually in arrears on each February 1
and August 1, commencing on February 1, 2014, to Holders of record at the close of business on the preceding January 15 and July
15 (whether or not such day is a Business Day), respectively. Additional Interest will be payable as set forth in Section 6.04
of the within-mentioned Supplemental Indenture, and any reference to interest on, or in respect of, any Note therein shall be deemed
to include Additional Interest if, in such context, Additional Interest is, was or would be payable pursuant to such Section 6.04,
and any express mention of the payment of Additional Interest in any provision therein shall not be construed as excluding Additional
Interest in those provisions thereof where such express mention is not made.


 


Any Defaulted Amounts shall accrue interest
per annum at the rate borne by the Notes plus one percent, subject to the enforceability thereof under applicable law,
from, and including, the relevant payment date to, but excluding, the date on which such Defaulted Amounts shall have been paid
by the Company, at its election, in accordance with Section 2.05(c) of the Supplemental Indenture.


 





 



1 Include if a global
note.


2 Include if a global note.


3 Include if a physical note.


4 Include if a global note.


5 Include if a physical note.


 




    	A-2



    	 



    

 


The Company shall pay the principal of and
interest on this Note, if and so long as such Note is a Global Note, in immediately available funds to the Depositary or its nominee,
as the case may be, as the registered Holder of such Note. As provided in and subject to the provisions of the Indenture, the Company
shall pay the principal of any Notes (other than Notes that are Global Notes) at the office or agency designated by the Company
for that purpose. The Company has initially designated the Trustee as its Paying Agent and Note Registrar in respect of the Notes
and its agency in the Borough of Manhattan, The City of New York, as a place where Notes may be presented for payment or for registration
of transfer and exchange.


 


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


 


This Note, and any claim, controversy
or dispute arising under or related to this Note, shall be construed in accordance with and governed by the laws of the State of
New York (without regard to the conflicts of laws provisions thereof).


 


In the case of any conflict between this
Note and the Indenture, the provisions of the Indenture shall control and govern.


 


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


 


[Remainder of page intentionally left
blank]


 




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


 


	 	AMERICAN REALTY CAPITAL PROPERTIES, INC.
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:


  


Dated:


 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION



U.S. BANK NATIONAL ASSOCIATION

as Trustee, certifies that this is one of the Notes described

in the within-named Indenture.


 


	By:	 	 
	 	Authorized Officer	 


  




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[FORM OF REVERSE OF NOTE]


 


American Realty Capital Properties, Inc.

3.00% Convertible Senior Note due 2018


 


This Note is one of a duly authorized issue
of Notes of the Company, designated as its 3.00% Convertible Senior Notes due 2018 (the “Notes”), limited to
the aggregate principal amount of $300,000,000 (as increased by an amount equal to the aggregate principal amount of any additional
Notes purchased by the Underwriters pursuant to the exercise of their over-allotment option as set forth in the Underwriting Agreement)
all issued or to be issued under and pursuant to an Indenture dated as of July 29, 2013 (the “Base Indenture”),
as amended and supplemented by the First Supplemental Indenture dated as of July 29, 2013 (herein called the “Supplemental
Indenture”; the Base Indenture, as amended and supplemented by the Supplemental Indenture, and as it may be further amended
or supplemented from time to time, the “Indenture”), by and between the Company and U.S. Bank National Association
(the “Trustee”) to which Indenture and all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders
of the Notes. Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain conditions specified
in the Indenture. Capitalized terms used in this Note and not defined in this Note shall have the respective meanings set forth
in the Indenture.


 


In case certain Events of Default shall
have occurred and be continuing, the principal of, and interest on, all Notes may be declared, by either the Trustee or Holders
of at least 25% in aggregate principal amount of Notes then outstanding, and upon said declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions and certain exceptions set forth in the Indenture.


 


Subject to the terms and conditions of the
Indenture, the Company will make all payments and deliveries in respect of the Fundamental Change Repurchase Price on the Fundamental
Change Repurchase Date and the principal amount on the Maturity Date, as the case may be, to the Holder who surrenders a Note to
a Paying Agent to collect such payments in respect of the 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.


 


The Indenture contains provisions permitting
the Company and the Trustee in certain circumstances, without the consent of the Holders of the Notes, and in certain other circumstances,
with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures modifying the terms of the Indenture and the Notes as
described therein. It is also provided in the Indenture that, subject to certain exceptions, the Holders of a majority in aggregate
principal amount of the Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past Default or
Event of Default under the Indenture and its consequences.


 




    	A-5



    	 



    

 


No reference herein to the Indenture and
no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay or deliver, as the case may be, the principal (including the Fundamental Change Repurchase Price, if applicable) of, accrued
and unpaid interest on, and the consideration due upon conversion of, this Note at the place, at the respective times, at the rate
and in the lawful money herein prescribed.


 


The Notes are issuable in registered form
without coupons in denominations of $1,000 principal amount and integral multiples thereof. At the office or agency of the Company
referred to on the face hereof, and in the manner and subject to the limitations provided in the Indenture, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized denominations, without payment of any service charge but, if
required by the Company or Trustee, with payment of a sum sufficient to cover any transfer or similar tax that may be imposed in
connection therewith as a result of the name of the Holder of the new Notes issued upon such exchange of Notes being different
from the name of the Holder of the old Notes surrendered for such exchange.


 


The Notes shall be redeemable only in accordance
with the terms and conditions specified in the Indenture.


 


Upon the occurrence of a Fundamental Change,
the Holder has the right, at such Holder’s option, to require the Company to repurchase for cash all of such Holder’s
Notes or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to the Fundamental Change Repurchase Price.


 


Subject to the provisions of the Indenture,
the Holder hereof has the right, at its option, during certain periods and upon the occurrence of certain conditions specified
in the Indenture, prior to the close of business on the Business Day immediately preceding the Maturity Date, to convert any Notes
or portion thereof that is $1,000 or an integral multiple thereof, into cash, shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, at the Conversion Rate specified in the Indenture, as adjusted from time to time as provided
in the Indenture.


 




    	A-6



    	 



    

 


ABBREVIATIONS


 


The following abbreviations, when used in
the inscription of the face of this Note, shall be construed as though they were written out in full according to applicable laws
or regulations:


 


TEN COM = as tenants in common


 


UNIF GIFT MIN ACT = Uniform Gifts to Minors Act


 


CUST = Custodian


 


TEN ENT = as tenants by the entireties




JT TEN = joint tenants with right of survivorship and not as tenants in common 






Additional abbreviations may also be used
though not in the above list.


 




    	A-7



    	 



    

 


SCHEDULE A6


 


SCHEDULE OF EXCHANGES OF NOTES



American Realty Capital Properties, Inc.

3.00% Convertible Senior Notes due 2018


 


The initial principal amount of this Global
Note is _______ DOLLARS ($[_________]). The following increases or decreases in this Global Note have been made:


 





	
        Date of exchange
	
	
        Amount of

        decrease in

        principal amount

        of this Global Note
	
	
        Amount of

        increase in

        principal amount

        of this Global Note
	
	
        Principal amount

        of this Global Note

        following such

        decrease or

        increase
	
	
        Signature of

        authorized

        signatory of

        Trustee or

        Custodian

	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 







  





 



6 Include if a global
note.






    	A-8



    	 



    

 


ATTACHMENT 1


 


[FORM OF NOTICE OF CONVERSION]


 


To: American Realty Capital Properties, Inc.


 


The undersigned registered owner of this
Note hereby exercises the option to convert this Note, or the portion hereof (that is $1,000 principal amount or an integral multiple
thereof) below designated, into cash, shares of Common Stock or a combination of cash and shares of Common Stock, as applicable,
in accordance with the terms of the Indenture referred to in this Note, and directs that any cash payable and any shares of Common
Stock issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing
any unconverted principal amount hereof, be issued and delivered to the registered Holder hereof unless a different name has been
indicated below. If any shares of Common Stock or any portion of this Note not converted are to be issued in the name of a Person
other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance
with Section 14.02(d) and Section 14.02(e) of the Supplemental Indenture. Any amount required to be paid to the undersigned on
account of interest accompanies this Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such
terms in the Indenture.


 


	Dated:	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	Signature(s)


 


	 	 
	Signature Guarantee	 
	 	 
	Signature(s) must be guaranteed	 
	by an eligible Guarantor Institution	 
	(banks, stock brokers, savings and	 
	loan associations and credit unions)	 
	with membership in an approved	 
	signature guarantee medallion program	 
	pursuant to Securities and Exchange	 
	Commission Rule 17Ad-15 if shares	 
	of Common Stock are to be issued, or	 
	Notes are to be delivered, other than	 
	to and in the name of the registered holder.	 




    	1



    	 



    

  


	Fill in for registration of shares if	 	 	 
	to be issued, and Notes if to	 	 	 
	be delivered, other than to and in the	 	 	 
	name of the registered holder:	 	 	 
	 	 	 	 
	(Name)	 	 	 
	 	 	 	 
	(Street Address)	 	 	 
	 	 	 	 
	(City, State and Zip Code)	 	 	 
	Please print name and address	 	 	 
	 	 		 
	 	 	Principal amount to be converted (if less than all):  $______,000
	 	 	 	 
	 	 	NOTICE:  The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.
	 	 	 	 
	 	 	Social Security or Other Taxpayer	 
	 	 	Identification Number	 


  




    	2



    	 



    

 


ATTACHMENT 2


 


[FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE]


 


To: American Realty Capital Properties, Inc.


 


The undersigned registered owner of this
Note hereby acknowledges receipt of a notice from American Realty Capital Properties, Inc. (the “Company”) as
to the occurrence of a Fundamental Change with respect to the Company and specifying the Fundamental Change Repurchase Date and
requests and instructs the Company to pay to the registered holder hereof in accordance with Section 15.02 of the Supplemental
Indenture referred to in this Note (1) the entire principal amount of this Note, or the portion thereof (that is $1,000 principal
amount or an integral multiple thereof) below designated, and (2) if such Fundamental Change Repurchase Date does not fall during
the period after a Regular Record Date and on or prior to the corresponding Interest Payment Date, accrued and unpaid interest,
if any, thereon to, but excluding, such Fundamental Change Repurchase Date. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture.


 


In the case of Physical Notes, the certificate
numbers of the Notes to be repurchased are as set forth below:


 


	Dated:______________________		 	 
	 	 	 	 
	 	 	 	Signature(s)
	 	 	 	 
	 	 	 	 
	 	 	 	Social Security or Other Taxpayer
	 	 	 	Identification Number
	 	 	 	 
	 	 	 	Principal amount to be repaid (if less than all): $______,000
	 	 	 	 
	 	 	 	NOTICE:  The above signature(s) of the Holder(s) hereof must correspond with the name as written upon the face of the Note in every particular without alteration or enlargement or any change whatever.


  



    	1