Exhibit 4.1


 




 





iSTAR
FINANCIAL INC., as Issuer,


 


-and-


 


US BANK TRUST NATIONAL ASSOCIATION, as
Trustee


 






 


NINETEENTH SUPPLEMENTAL INDENTURE


 


Dated as of


 


October 15, 2007


 






 


Convertible Senior Floating Rate Notes due
2012




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  
	
   

  	
   

  	
   

  
	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
   

  	
   

  	
   

  
	
  Issue, Description, Execution, Registration
  and Exchange of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Designation
  Amount and Issue of Notes

  	
  9

  
	
  Section 2.02

  	
  Form of
  Notes

  	
  9

  
	
  Section 2.03

  	
  Date and
  Denomination of Notes; Payments of Interest

  	
  10

  
	
  Section 2.04

  	
  Execution of
  Notes

  	
  12

  
	
  Section 2.05

  	
  Exchange and
  Registration of Transfer of Notes

  	
  12

  
	
  Section 2.06

  	
  Mutilated,
  Destroyed, Lost or Stolen Notes

  	
  15

  
	
  Section 2.07

  	
  Temporary
  Notes

  	
  16

  
	
  Section 2.08

  	
  Cancellation
  of Notes

  	
  17

  
	
  Section 2.09

  	
  CUSIP
  Numbers

  	
  17

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  	
   

  
	
  Redemption and Repurchase of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Optional
  Redemption of Notes

  	
  17

  
	
  Section 3.02

  	
  Notice of
  Optional Redemption; Selection of Notes

  	
  18

  
	
  Section 3.03

  	
  Payment of
  Notes Called for Redemption by the Issuer

  	
  19

  
	
  Section 3.04

  	
  Sinking Fund

  	
  20

  
	
  Section 3.05

  	
  Repurchase
  at Option of Holders Upon a Fundamental Change

  	
  20

  
	
  Section 3.06

  	
  Issuer
  Repurchase Notice

  	
  21

  
	
  Section 3.07

  	
  Withdrawal
  of Repurchase Notice

  	
  22

  
	
  Section 3.08

  	
  Deposit of
  Repurchase Price

  	
  23

  
	
  Section 3.09

  	
  Notes
  Repurchased in Part

  	
  23

  
	
  Section 3.10

  	
  Third Party
  Purchase

  	
  23

  
	
  Section 3.11

  	
  Repayment to
  the Issuer

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
   

  	
   

  	
   

  
	
  Particular Covenants of the Issuer

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Payment of
  Principal, Premium and Interest

  	
  24

  
	
  Section 4.02

  	
  Maintenance
  of Office or Agency

  	
  24

  
	
  Section 4.03

  	
  Appointments
  to Fill Vacancies in Trustee’s Office

  	
  24

  



 


ii

















 


	
  Section 4.04

  	
  Provisions
  as to Paying Agent

  	
  25

  
	
  Section 4.05

  	
  Existence

  	
  26

  
	
  Section 4.06

  	
  Reserved

  	
  26

  
	
  Section 4.07

  	
  Stay,
  Extension and Usury Laws

  	
  26

  
	
  Section 4.08

  	
  Compliance
  Certificate

  	
  26

  
	
  Section 4.09

  	
  Special
  Interest Notice

  	
  26

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  	
   

  
	
  Noteholders’ Lists and Reports by the
  Issuer and the Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Noteholders’
  Lists

  	
  27

  
	
  Section 5.02

  	
  Preservation
  and Disclosure of Lists

  	
  27

  
	
  Section 5.03

  	
  Reports by
  Trustee

  	
  27

  
	
  Section 5.04

  	
  Reports by
  Issuer

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  	
   

  
	
  Remedies of the Trustee and Noteholders on
  an Event of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Events of
  Default

  	
  28

  
	
  Section 6.02

  	
  Payments of
  Notes on Default; Suit Therefor

  	
  31

  
	
  Section 6.03

  	
  Application
  of Monies Collected by Trustee

  	
  33

  
	
  Section 6.04

  	
  Proceedings
  by Noteholder

  	
  33

  
	
  Section 6.05

  	
  Proceedings
  by Trustee

  	
  34

  
	
  Section 6.06

  	
  Remedies
  Cumulative and Continuing

  	
  34

  
	
  Section 6.07

  	
  Direction of
  Proceedings and Waiver of Defaults by Majority of Noteholders

  	
  34

  
	
  Section 6.08

  	
  Notice of
  Defaults

  	
  35

  
	
  Section 6.09

  	
  Undertaking
  to Pay Costs

  	
  35

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  	
   

  
	
  The Trustee

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Duties and
  Responsibilities of Trustee

  	
  36

  
	
  Section 7.02

  	
  Reliance on Documents, Opinions, etc

  	
  37

  
	
  Section 7.03

  	
  No
  Responsibility for Recitals, etc

  	
  38

  
	
  Section 7.04

  	
  Trustee,
  Paying Agents, Conversion Agents or Note Registrar May Own Notes

  	
  38

  
	
  Section 7.05

  	
  Monies to be
  Held in Trust

  	
  39

  
	
  Section 7.06

  	
  Compensation
  and Expenses of Trustee

  	
  39

  
	
  Section 7.07

  	
  Officers’
  Certificate as Evidence

  	
  39

  
	
  Section 7.08

  	
  Conflicting
  Interests of Trustee

  	
  40

  
	
  Section 7.09

  	
  Eligibility
  of Trustee

  	
  40

  
	
  Section 7.10

  	
  Resignation
  or Removal of Trustee

  	
  40

  
	
  Section 7.11

  	
  Acceptance
  by Successor Trustee

  	
  41

  



 


iii

















 


	
  Section 7.12

  	
  Succession
  by Merger

  	
  41

  
	
  Section 7.13

  	
  Preferential
  Collection of Claims

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  	
   

  
	
  The Noteholders

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Action by
  Noteholders

  	
  42

  
	
  Section 8.02

  	
  Proof of
  Execution by Noteholders

  	
  42

  
	
  Section 8.03

  	
  Absolute
  Owners

  	
  42

  
	
  Section 8.04

  	
  Issuer-Owned
  Notes Disregarded

  	
  43

  
	
  Section 8.05

  	
  Revocation
  of Consents; Future Holders Bound

  	
  43

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  	
   

  
	
  Supplemental Indentures

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Supplemental
  Indentures Without Consent of Noteholders

  	
  43

  
	
  Section 9.02

  	
  Supplemental
  Indenture With Consent of Noteholders

  	
  45

  
	
  Section 9.03

  	
  Effect of
  Supplemental Indenture

  	
  46

  
	
  Section 9.04

  	
  Notation on
  Notes

  	
  46

  
	
  Section 9.05

  	
  Evidence of
  Compliance of Supplemental Indenture to be Furnished to Trustee

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
   

  	
   

  	
   

  
	
  Consolidation, Merger, Sale, Conveyance and
  Lease

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Issuer May Consolidate
  on Certain Terms

  	
  47

  
	
  Section 10.02

  	
  Issuer
  Successor to be Substituted

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  	
   

  
	
  Satisfaction and Discharge of Indenture

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Discharge of
  Indenture

  	
  48

  
	
  Section 11.02

  	
  Deposited
  Monies to be Held in Trust by Trustee

  	
  48

  
	
  Section 11.03

  	
  Paying Agent
  to Repay Monies Held

  	
  49

  
	
  Section 11.04

  	
  Return of
  Unclaimed Monies

  	
  49

  
	
  Section 11.05

  	
  Reinstatement

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  
	
   

  	
   

  	
   

  
	
  Immunity of Incorporators, Stockholders,
  Officers and Directors

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 12.01

  	
  Indenture
  and Notes Solely Corporate Obligations

  	
  49

  



 


iv

















 


	
  ARTICLE 13

  	
   

  
	
   

  	
   

  	
   

  
	
  Conversion of Notes

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Right to
  Convert

  	
  50

  
	
  Section 13.02

  	
  Exercise of
  Conversion Right; No Adjustment for Interest or Dividends

  	
  53

  
	
  Section 13.03

  	
  Cash
  Payments in Lieu of Fractional Shares

  	
  54

  
	
  Section 13.04

  	
  Conversion
  Rate

  	
  54

  
	
  Section 13.05

  	
  Adjustment
  of Conversion Rate

  	
  54

  
	
  Section 13.06

  	
  Change in
  Conversion Right Upon Certain Reclassifications, Business Combinations and
  Asset Sales

  	
  60

  
	
  Section 13.07

  	
  Taxes on
  Shares Issued

  	
  61

  
	
  Section 13.08

  	
  Reservation
  of Shares, Shares to be Fully Paid; Compliance with Governmental Requirements

  	
  61

  
	
  Section 13.09

  	
  Responsibility
  of Trustee

  	
  61

  
	
  Section 13.10

  	
  Notice to
  Holders Prior to Certain Actions

  	
  62

  
	
  Section 13.11

  	
  Stockholder
  Rights Plans

  	
  63

  
	
  Section 13.12

  	
  Settlement
  Upon Conversion

  	
  63

  
	
  Section 13.13

  	
  Conversion
  Rate Adjustment After Certain Fundamental Change Transactions

  	
  65

  
	
  Section 13.14

  	
  Ownership
  Limit; Withholding Tax

  	
  67

  
	
  Section 13.15

  	
  Calculation
  In Respect of Notes

  	
  67

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
   

  
	
   

  	
   

  	
   

  
	
  RESERVED

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
   

  
	
   

  	
   

  	
   

  
	
  Miscellaneous Provisions

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Provisions
  Binding on Issuer’s Successors

  	
  68

  
	
  Section 15.02

  	
  Official
  Acts by Successor Corporation

  	
  68

  
	
  Section 15.03

  	
  Addresses
  for Notices, etc

  	
  68

  
	
  Section 15.04

  	
  Governing
  Law

  	
  69

  
	
  Section 15.05

  	
  Evidence of
  Compliance with Conditions Precedent, Certificates to Trustee

  	
  69

  
	
  Section 15.06

  	
  Legal
  Holidays

  	
  69

  
	
  Section 15.07

  	
  Trust
  Indenture Act

  	
  69

  
	
  Section 15.08

  	
  No Security
  Interest Created

  	
  70

  
	
  Section 15.09

  	
  Benefits of
  Indenture

  	
  70

  
	
  Section 15.10

  	
  Table of
  Contents, Headings, etc

  	
  70

  
	
  Section 15.11

  	
  Authenticating
  Agent

  	
  70

  
	
  Section 15.12

  	
  Execution in
  Counterparts

  	
  71

  
	
  Section 15.13

  	
  Severability

  	
  71

  
	
  Section 15.14

  	
  Conflicts
  with Original Indenture

  	
  71

  



 


v

















 


	
  Exhibit A

  	
  Form of
  Note

  	
  A-1

  



 


vi

















 


CROSS-REFERENCE TABLE*


 




	
  Trust Indenture Act Section

  	
   

  	
  Indenture Section

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.09

  
	
   

  	
  (a)(2)

  	
   

  	
  7.09

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  7.08

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.13

  
	
   

  	
  (b)

  	
   

  	
  7.13

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  5.01

  
	
   

  	
  (b)

  	
   

  	
  5.02

  
	
   

  	
  (c)

  	
   

  	
  5.02

  
	
  313

  	
  (a)

  	
   

  	
  5.03

  
	
   

  	
  (b)

  	
   

  	
  5.03

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  5.03

  
	
  314

  	
  (a)

  	
   

  	
  4.08, 5.04

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (d)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  N.A.

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  6.08

  
	
   

  	
  (c)

  	
   

  	
  6.05

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.09

  
	
  316

  	
  (a)(1)(A)

  	
   

  	
  6.07

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.07

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  317

  	
  (a)(1)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
  318

  	
  (a)

  	
   

  	
  N.A.

  






 


N.A. means not
applicable.


 






* This
Cross-Reference Table is not part of the Indenture.


 


vii
















 


INDENTURE


 


SUPPLEMENTAL INDENTURE, dated as of October 15, 2007, between
iStar Financial Inc., a corporation organized under the laws of Maryland
(hereinafter called the “Issuer”),
and US Bank Trust National Association, as trustee hereunder (hereinafter called
the “Trustee”).


 


The Issuer has heretofore delivered to the Trustee an indenture dated
as of February 5, 2001 (the “Original Indenture”), a form of which has
been filed with the Securities and Exchange Commission under the Securities Act
and is incorporated by reference as an exhibit to the Issuer’s Registration
Statement on Form S-3 (Registration No. 333-142539), providing for
the issuance from time to time of debt securities of the Issuer.


 


The Board of Directors of the Issuer has duly adopted resolutions
authorizing the Issuer to execute and deliver this Supplemental Indenture (the “Indenture”).


 


Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the holders of the Issuer’s Convertible
Senior Floating Rate Notes due 2012 (hereinafter called the “Notes”) on the date hereof.


 


ARTICLE 1



DEFINITIONS


 


Section 1.01                                Definitions.  The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01.  All other terms used in this Indenture that
are defined in the Trust Indenture Act (as defined below) or which are by
reference therein defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires) shall have the
respective meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force at the date of the execution of this
Indenture.  The words “herein,” “hereof,”
“hereunder” and words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or
other Subdivision.  The terms defined in
this Article include the plural as well as the singular.


 


“Special Interest Notice”
has the meaning specified in Section 4.09.


 


“Additional Notes” has the
meaning specified in Section 2.01.


 


“Additional Shares” has
the meaning specified in Section 13.13.


 


“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.


 


“Agent Members” has the
meaning specified in Section 2.05(b).


 


“Bankruptcy Law” means
Title 11, U.S. Code or any similar federal, state, or foreign law for the
relief of debtors.


 


“Board of Directors” means
the Board of Directors of the Issuer or a committee of such Board duly
authorized to act for it hereunder.


 


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


 


“Calculation Agent” has
the meaning specified in Section 2.03.


 


“Change in Control” means
the occurrence at any time any of the following events: (1) consummation
of any transaction or event (whether by means of a share exchange or tender
offer applicable to the Common Stock, a liquidation, consolidation,
recapitalization, reclassification, combination or merger of the Issuer or a
sale, lease or other transfer of all or substantially all of the consolidated
assets of the Issuer) or a series of related transactions or events pursuant to
which all of the outstanding shares of Common Stock are exchanged for,
converted into or constitute solely the right to receive, cash, securities or
other property; (2) any “person” or “group” (as such terms are used for
purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable), other than the Issuer or any majority-owned subsidiary of the
Issuer or any employee benefit plan of the Issuer or such subsidiary, is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of more than 50% of the total voting
power in the aggregate of all classes of stock or other equity interests of the
Issuer then outstanding entitled to vote generally in elections of the Issuer’s
directors; or (3) during any period of 12 consecutive months after the
date of original issuance of the Notes, persons who at the beginning of such 12-month
period constituted the Board of Directors of the Issuer, together with any new
persons whose election, appointment, designation, or nomination was approved by
a vote of a majority of the persons then still comprising the Board of
Directors of the Issuer who were either members of the Board of Directors of
the Issuer at the beginning of such period or whose election, appointment,
designation or nomination for election was previously so approved, cease for
any reason to constitute a majority of the Board of Directors of the
Issuer.  Notwithstanding the foregoing
but solely for purposes of the provisions of the Fundamental Change repurchase
right set forth in Section 3.05, even if any of the events specified in
the preceding clauses (1) through (3) have occurred, a Change in
Control will not be deemed to have occurred if at least 90% of the
consideration (excluding cash payments for fractional shares and cash payments
made pursuant to dissenters’ appraisal rights) in a merger, consolidation or
other transaction otherwise constituting a Change in Control consists of shares
of common equity interests traded on a U.S. national securities exchange (or
will be so traded immediately following such merger, consolidation or other
transaction) and as a result of the merger, consolidation or other transaction
the Notes become convertible into such shares of


 


2

















 


equity
interests.  For the purposes of this
definition, “person” includes any syndicate or group that would be deemed to be
a “person” under Section 13(d)(3) of the Exchange Act.


 


“Charter” means the
Charter of the Issuer, as the same may be amended, supplemented or restated
from time to time, and including any successor thereto or, if the Issuer shall
at any time be an entity other than a corporation, the organizational or
governing documents of such other entity.


 


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


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Exchange Act, or, if at any time after the execution of this
Indenture such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.


 


“Common Stock” means the
shares of common stock, par value $0.001 per share, of the Issuer as such
common stock exist on the date of this Indenture or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Issuer and which are not subject to redemption by the Issuer; provided that if at any time there shall
be more than one such resulting class, the shares of each such class then so
issuable on conversion shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.


 


“Conversion Agent” means
the conversion agent appointed by the Issuer to act as set forth in Article 13,
which, initially, shall be the Trustee.


 


“Conversion Date” has the
meaning specified in Section 13.02.


 


“Conversion Notice” has
the meaning specified in Section 13.02.


 


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


 


3

















 


“Conversion Rate” has the
meaning specified in Section 13.04.


 


“Corporate Trust Office”
or other similar term, means the designated office or agency of the Trustee at
which at any particular time its corporate trust business as it relates to this
Indenture shall be administered, which office is, at the date as of which this
Indenture is dated, located at 100 Wall Street, 16th Floor, Suite 1600,
New York, New York 10005, Attention: 
Corporate Trust Department, or at any other time at such other address
as the Trustee may designate from time to time by notice to the Issuer.


 


“CUSIP” means the
Committee on Uniform Securities Identification Procedures.


 


“Custodian” means US Bank
Trust National Association, as custodian with respect to the Notes in global
form, or any successor entity thereto.


 


“Daily Conversion Value”
has the meaning provided in Section 13.12(b).


 


“Daily Measurement Value”
has the meaning specified in Section 13.12(b)(iii)(B).


 


“Daily Settlement Amount”
has the meaning provided in Section 13.12(b)(iii).


 


“Daily Share Amount” has the
meaning provided in Section 13.12(b)(iii)(B).


 


“Daily VWAP” has the
meaning provided in Section 13.12(b).


 


“default” means any event
that is, or after notice or passage of time, or both, would be, an Event of
Default.


 


“Defaulted Interest” has
the meaning specified in Section 2.03.


 


“Depositary” means the
clearing agency registered under the Exchange Act that is designated to act as
the Depositary for the Global Notes.  DTC
shall be the initial Depositary, until a successor shall have been appointed
and become such pursuant to the applicable provisions of this Indenture, and
thereafter, “Depositary” shall
mean or include such successor.


 


“DTC” means The Depository
Trust Company.


 


“Effective Date” has the
meaning specified in Section 13.13(b).


 


“Event of Default” means
any event specified in Section 6.01 as an Event of Default.


 


“ex-dividend date” has the
meaning specified in Section 13.01(a)(iv).


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.


 


“Expiration Time” has the
meaning specified in Section 13.05(e).


 


“Fundamental Change” means
the occurrence of a Change in Control or a Termination of Trading.


 


4

















 


“Fundamental Change Purchase Price”
has the meaning provided in Section 3.05(a) hereof.


 


“Fundamental Change Purchase Date”
has the meaning provided in Section 3.05(a) hereof.


 


“Global Note” has the
meaning specified in Section 2.02.


 


“Indenture” means this
instrument as originally executed or, if amended or supplemented as herein
provided, as so amended or supplemented.


 


“Initial Notes” has the
meaning specified in Section 2.01.


 


“interest” means, when
used with reference to the Notes, any interest payable under the terms of the
Notes, including Special Interest, if any, payable pursuant to Section 6.01.


 


“Interest Payment Date”
means January 1, April 1, July 1 and October 1 of each
year, beginning January 1, 2008.


 


“Issuer” means the party
named as the “Issuer” in the first paragraph of this Indenture, and, subject to
the provisions of Article 10, shall include its successors and assigns.


 


“Issuer Repurchase Notice”
has the meaning specified in Section 3.06(a).


 


“Issuer Repurchase Notice Date”
means the date on which the Issuer provides the Issuer Repurchase Notice to
holders in accordance with the provisions of Section 3.05(b).


 


“Legal Holiday” means any
day other than a Business Day.


 


“Market Disruption Event”
has the meaning specified in Section 13.12(b).


 


“Net Share Settlement” has
the meaning specified in Section 13.12(b).


 


“Note” or “Notes” means any Note or Notes, as the case
may be, authenticated and delivered under this Indenture, including the Initial
Notes, any Additional Notes and any Global Note.


 


“Non-Recourse Indebtedness”
means any of the Issuer’s or any of its Subsidiaries’ indebtedness that is:


 


(1)                                  specifically advanced
to finance the acquisition of investment assets and secured only by the assets
to which such indebtedness relates without recourse to the Issuer or any of its
Subsidiaries (other than subject to such customary carve-out matters for which
the Issuer or its Subsidiaries acts as a guarantor in connection with such
indebtedness, such as fraud, misappropriation and misapplication, unless, until
and for so long as a claim for payment or performance has been made thereunder
(which has not been satisfied) at which time the obligations with respect to
any such customary carve-out shall not be considered Non-Recourse Indebtedness,
to the extent that such


 


5

















 


claim is a liability of the Issuer for purposes of generally accepted
accounting principles in the United States (“GAAP”);


 


(2)                                  advanced to any of
the Issuer’s Subsidiaries or group of its Subsidiaries formed for the sole
purpose of acquiring or holding investment assets against which a loan is
obtained that is made without recourse to, and with no cross-collateralization
against, the Issuer or any of the Issuer’s Subsidiaries’ other assets (other
than subject to such customary carve-out matters for which the Issuer or its
Subsidiaries acts as a guarantor in connection with such indebtedness, such as
fraud, misappropriation and misapplication, unless, until and for so long as a
claim for payment or performance has been made thereunder (which has not been
satisfied) at which time the obligations with respect to any such customary
carve-out shall not be considered Non-Recourse Indebtedness, to the extent that
such claim is a liability of the Issuer for GAAP purposes) and upon complete or
partial liquidation of which the loan must be correspondingly completely or
partially repaid, as the case may be; or


 


(3)                                  specifically advanced
to finance the acquisitions of real property and secured by only the real
property to which such Indebtedness relates without recourse to the Issuer or
any of its Subsidiaries (other than subject to such customary carve-out matters
for which the Issuer or its Subsidiaries acts as a guarantor in connection with
such Indebtedness, such as fraud, misappropriation and misapplication, unless,
until and for so long as a claim for payment or performance has been made
thereunder (which has not been satisfied) at which time the obligations with
respect to any such customary carve-out shall not be considered Non-Recourse
Indebtedness , to the extent that such claim is a liability of the Issuer for
GAAP purposes).


 


“Note Register” has the
meaning specified in Section 2.05(a).


 


“Note Registrar” has the
meaning specified in Section 2.05(a).


 


“Noteholder” or “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 Registrar’s books.


 


“Observation Period” has
the meaning specified in Section 13.12(b).


 


“Officer” means, with
respect to any Person, the President, Chief Executive Officer, any Vice
President, Chief Operating Officer, Treasurer, Secretary or the Chief Financial
Officer of such Person.


 


“Officers’ Certificate”,
when used with respect to the Issuer, means a certificate signed by any two
Officers.


 


“Opinion of Counsel” means
an opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Issuer, or other counsel reasonably acceptable to the Trustee.


 


6

















 


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


 


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


 


(b)                                 Notes,
or portions thereof, (i) for the redemption or repurchase of which monies
in the necessary amount shall have been deposited in trust with the Trustee or
with any Paying Agent (other than the Issuer) or (ii) which shall have
been otherwise discharged in accordance with Article 11;


 


(c)                                  Notes
in lieu of which, or in substitution for which, other Notes shall have been authenticated
and delivered pursuant to the terms of Section 2.06; and


 


(d)                                 Notes
converted pursuant to Article 13.


 


“Paying Agent” has the
meaning specified in Section 2.08.


 


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


 


“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 2.06
in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the
same debt as the lost, destroyed or stolen Note that it replaces.


 


“Prospectus Supplement”
means the Issuer’s Prospectus Supplement, dated October 10, 2007 to the
Issuer’s Prospectus, dated October 9, 2007, relating to the Notes.


 


“Underwriting Agreement”
means the Underwriting Agreement, dated October 10, 2007, among the Issuer
and the Underwriter relating to the Notes.


 


“Record Date” has the
meaning specified in Section 2.03.


 


“Redemption Date” means
the date fixed by the Issuer for redemption of all or any portion of the Notes
in accordance with the provisions of Section 3.02 hereof.


 


“Reference Dividend” has
the meaning specified in Section 13.05(d).


 


“REIT” means a real estate
investment trust within the meaning of Section 856(a) of the Code.


 


“Repurchase Notice” has
the meaning specified in Section 3.05(c).


 


7

















 


“Responsible Officer”
shall mean, when used with respect to the Trustee, any officer within the
corporate trust department of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such person’s knowledge of or familiarity with the particular
subject.


 


“Securities Act” means the
Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.


 


“Settlement Amount” has
the meaning specified in Section 13.12(a).


 


“Settlement Method” means,
with respect to a conversion of Notes, the relative proportions of cash and/or
shares of Common Stock with which such conversion is settled.


 


“Settlement Notice” has
the meaning specified in Section 13.12(a).


 


“Share Price” has the
meaning specified in Section 13.13(b).


 


“Significant Subsidiary”
means, as of any date of determination, a Subsidiary of the Issuer that would
constitute a “significant subsidiary”
as such term is defined under Rule 1-02(w) of Regulation S-X of the
Commission as in effect on the date of this Indenture.


 


“Special Interest” has the
meaning set forth in Section 6.01.


 


“Spin-Off” has the meaning
specified in Section 13.05(c).


 


“Stated Maturity” means October 1,
2012.


 


“Subsidiary” means, with
respect to any Person, (i) any corporation, association or other business
entity of which more than 50% of the total voting power of shares of capital
stock or other equity interest entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general
partner or managing general partner of which is such Person or a subsidiary of
such Person or (b) the only general partners of which are such Person or
of one or more subsidiaries of such Person (or any combination thereof).


 


“Termination of Trading”
will be deemed to have occurred if the Issuer’s Common Stock (or other common
equity interests into which the Notes are then convertible) are not listed on a
United States national securities exchange or cease to be traded in
contemplation of a delisting, other than as a result of a transaction described
in clause (1) of the definition of Change in Control.


 


“Trading Day” means a day
during which trading in securities generally occurs on the New York Stock
Exchange or, if the Common Stock or other equity securities or similar equity
interests are not then listed on the New York Stock Exchange, on the principal
other United States national or regional securities exchange on which the
Common Stock or other equity


 


8

















 


securities or
similar equity interests are then listed or, if the Common Stock or other
equity securities or similar equity interests are not then listed on a United
States national or regional securities exchange, on the principal other market
on which the Common Stock or other equity securities or similar equity
interests are then traded or if the Common Stock or other equity securities or
similar equity interests are not traded on any such other principal market, any
Business Day; provided that, for
purposes of Section 13.12, the term Trading Day shall have the meaning set
forth in Section 13.12(b).


 


“Trading Price” has the
meaning specified in Section 13.01(a)(ii).


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939, as amended, as it was in force at the
date of this Indenture; provided
that if 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 US Bank
Trust National Association and its successors and any corporation resulting
from or surviving any consolidation or merger to which it or its successors may
be a party and any successor trustee at the time serving as successor trustee
hereunder.


 


“Underwriters” means the
Underwriters named in the Prospectus Supplement.


 


ARTICLE 2



ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01                                Designation Amount and Issue of Notes.  The Notes shall be designated as the “Convertible Senior Floating Rate Notes due 2012.”  Upon the execution of this Indenture, and
from time to time thereafter, Notes may be executed by the Issuer and delivered
to the Trustee for authentication, and the Trustee shall thereupon authenticate
and deliver Notes upon a written order of the Issuer, such order signed by two
Officers, without any further action by the Issuer hereunder.


 


The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is initially $800,000,000 (or $920,000,000 if
the Underwriter’s over-allotment option set forth in the Underwriting Agreement
is exercised in full).  The Issuer may,
without the consent of the holders of Notes, issue additional debt securities
(the “Additional Notes”) from time
to time in the future with the same terms, except for any difference in the
issue price and interest accrued prior to the issue date of the Additional
Notes, and with the same CUSIP number as the Notes originally issued under this
Indenture (the “Initial Notes”) in
an unlimited principal amount, provided that such Additional Notes must be part
of the same issue as the Initial Notes for United States federal income tax
purposes.  The Initial Notes and any such
Additional Notes will constitute a single series of debt securities, and in
circumstances in which this Indenture provides for the holders of Notes to vote
or take any action, the holders of Initial Notes and the holders of any such
Additional Notes will vote or take that action as a single class.


 


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


 


9

















 


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


 


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


 


So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by Section 2.05(b),
all of the Notes will be represented by one or more Notes in global form
registered in the name of the Depositary or the nominee of the Depositary (a “Global Note”).  The transfer and exchange of beneficial
interests in any such Global Note shall be effected through the Depositary in
accordance with this Indenture and the applicable procedures of the Depositary.  Except as provided in Section 2.05(b),
beneficial owners of a Global Note shall not be entitled to have certificates
registered in their names, will not receive or be entitled to receive physical
delivery of certificates in definitive form and will not be considered holders
of such Global Note.


 


Any Global Note shall represent such of the outstanding Notes as shall
be specified therein and shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be increased or reduced to reflect redemptions, repurchases, conversions,
exchanges or transfers 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 this Indenture.  Payment of
principal of, and interest on, any Global Note shall be made to the holder of
such Note.


 


Section 2.03                                Date and Denomination of Notes; Payments of Interest.  The Notes shall be issuable in registered
form without coupons in denominations of $1,000 principal amount and integral
multiples of $1,000 in excess thereof. 
Each Note shall be dated the date of its authentication and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A
hereto.  Interest will be computed on the
basis of a 360-day year using the actual number of days elapsed from and
including an Interest Payment Date to but excluding the next succeeding
Interest Payment Date.


 


The Issuer shall appoint a calculation agent (the “Calculation Agent”)
to determine the interest rate on the Notes. 
The Issuer initially appoints the Trustee to act as the Calculation
Agent with respect to the Notes.  The
Issuer may change any Calculation Agent without notice to any Holder.  The Issuer shall notify the Trustee in writing
of the name and address of any Agent


 


10

















 


not a party to
this Supplemental Indenture.  If the
Issuer fails to appoint or maintain another entity as Calculation Agent, the
Trustee shall act as such.


 


The Person in whose name any Note (or its Predecessor Note) is
registered on the Note Register at the close of business, New York City time,
on any Record Date with respect to any Interest Payment Date shall be entitled
to receive the interest payable on such Interest Payment Date; provided that interest payable on the
Stated Maturity shall be payable to the Person to whom principal is payable;
and provided, further that if an Interest Payment Date
falls on or prior to a Redemption Date or a Fundamental Change Purchase Date,
as the case may be, the quarterly payment of interest becoming due on such
Interest Payment Date shall be payable to the holder of such Note registered as
such on the related Record Date. 
Interest shall be payable at an office of the Issuer maintained by the
Issuer for such purposes, which shall initially be an office or agency of the
Trustee.  The Issuer shall pay interest (i) on
any Notes in certificated form by check mailed to the address of the Person
entitled thereto as it appears in the Note Register; provided, however,
that a holder of any Notes in certificated form in the aggregate principal
amount of more than $5.0 million may specify by written notice to the Issuer
that it pay interest by wire transfer of immediately available funds to the
account specified by the Noteholder in such notice, or (ii) on any Global
Note by wire transfer of immediately available funds to the account of the
Depositary or its nominee.  If a payment
date is not a Business Day, payment shall be made on the next succeeding
Business Day.  The term “Record Date” with respect to any Interest
Payment Date shall mean the December 15, March 15, June 15 and September 15,
in each case whether or not such day is a Business Day, next preceding the
applicable Interest Payment Date. 
Interest payable on each Interest Payment Date or any other date on
which interest shall be payable shall equal the amount of interest accrued for
the period from and including the immediately preceding Interest Payment Date
in respect of which interest has been paid (or from and including October 15,
2007 if no interest shall have been payable) to but excluding such Interest
Payment Date or other date on which such interest should be payable.


 


Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease
to be payable to the Noteholder registered as such on the relevant Record Date,
and such Defaulted Interest shall be paid by the Issuer, at its election in
each case, as provided in clause (1) or (2) below:


 


(1)                                  The
Issuer may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at
the close of business, New York City time, on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner.  The Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Note and the date of the proposed payment (which shall be not less than
twenty five (25) calendar 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
Issuer shall deposit with the Trustee an amount of money equal to the aggregate
amount to be paid in respect of such Defaulted Interest 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 Interest as in this
clause provided.  Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall be not more than fifteen (15) calendar days and not less than


 


11

















 


ten (10) calendar
days prior to the date of the proposed payment, and not less than ten (10) calendar
days after the receipt by the Trustee of the notice of the proposed payment
(unless, the Trustee shall consent to an earlier date).  The Trustee shall promptly notify the Issuer
of such special record date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest 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 ten (10) calendar
days prior to such special record date (unless, the Trustee shall consent to an
earlier date).  Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the
close of business, New York City time, on such special record date and shall no
longer be payable pursuant to the following clause (2) of this Section 2.03.


 


(2)                                  The
Issuer may make payment of any Defaulted Interest 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 Issuer to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.


 


Section 2.04                                Execution of Notes.  The Notes shall be signed in the name and on
behalf of the Issuer by the manual or facsimile signature of an Officer.  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 by the manual or facsimile
signature of the Trustee (or an authenticating agent appointed by the Trustee
as provided by Section 15.11), shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an authenticating
agent) upon any Note executed by the Issuer shall be conclusive evidence that
the Note so authenticated has been duly authenticated and delivered hereunder
and that the holder is entitled to the benefits of this Indenture.


 


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


 


Section 2.05                                Exchange and Registration of Transfer of Notes.  Section 2.06  The Issuer shall cause to be kept at the
Corporate Trust Office a register (the register maintained in such office and
in any other office or agency of the Issuer designated pursuant to Section 4.02
being herein sometimes collectively referred to as the “Note Register”) in which, subject to such
reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of Notes and of transfers of Notes.  The Note Register shall be in written form or
in any form capable of being exchanged into written form within a reasonably
prompt period of time.  The Trustee is
hereby appointed “Note Registrar”
for the purpose of registering Notes and transfers of Notes as


 


12

















 


herein
provided. The Issuer may appoint one or more co-registrars in accordance with Section 4.02.


 


Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Issuer shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of any authorized
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this 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 Issuer pursuant to Section 4.02.  Whenever any Notes are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Noteholder making the exchange is entitled to
receive bearing registration numbers not contemporaneously outstanding.


 


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


 


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


 


No service charge shall be made to any holder for any registration of
transfer or exchange of Notes, but the Issuer may require payment by the holder
of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in connection with any registration of transfer or exchange
of Notes.


 


In connection with the redemption of the Notes in part, neither the
Trustee nor any Note Registrar shall be required to issue or register the
transfer or exchange of (a) any Notes during a period beginning at the
opening of business fifteen (15) days before any selection of Notes to be
redeemed and ending at the close of business on the day of mailing of the relevant
notice of redemption, or (b) any Notes or portions thereof called for
redemption pursuant to Section 3.02, except the unredeemed portion of any
Note redeemed in part.


 


(a)                                  The
following provisions shall apply only to Global Notes:


 


(i)                                     Each Global Note
authenticated under this Indenture shall be registered in the name of the
Depositary or a nominee thereof and delivered to such Depositary or a nominee
thereof or Custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.


 


(ii)                                  Notwithstanding any
other provision in this Indenture, no Global Note may be exchanged in whole or
in part for Notes registered, and no


 


13

















 


transfer of a Global Note in whole or in part may be registered, in the
name of any Person other than the Depositary or a nominee thereof unless (1) the
Depositary (x) has notified the Issuer that it is unwilling or unable to
continue as Depositary for such Global Note or (y) has ceased to be a clearing
agency registered under the Exchange Act, and a successor depositary has not
been appointed by the Issuer within ninety (90) calendar days, (2) an
Event of Default has occurred and is continuing or (3) the Issuer, in its
sole discretion, notifies the Trustee in writing that it no longer wishes to
have all the Notes represented by Global Notes. 
Any Global Note exchanged pursuant to clause (1) or (2) above
shall be so exchanged in whole and not in part and any Global Note exchanged
pursuant to clause (3) above may be exchanged in whole or from time to
time in part as directed by the Issuer. 
Any Note issued in exchange for a Global Note or any portion thereof
shall be a Global Note; provided
that any such Note so issued that is registered in the name of a Person other
than the Depositary or a nominee thereof shall not be a Global Note.


 


(iii)                               Notes issued in exchange
for a Global Note or any portion thereof pursuant to clause (ii) above
shall be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Note or
portion thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and shall bear
any legends required hereunder.  Any
Global Note to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Note Registrar.  With
regard to any Global Note to be exchanged in part, either such Global Note
shall be so surrendered for exchange or, if the Trustee is acting as Custodian
for the Depositary or its nominee with respect to such Global Note, the
principal amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment made on the
records of the Trustee.  Upon any such
surrender or adjustment, the Trustee shall authenticate and make available for
delivery the Note issuable on such exchange to or upon the written order of the
Depositary or an authorized representative thereof.


 


(iv)                              In the event of the
occurrence of any of the events specified in clause (ii) above, the Issuer
will promptly make available to the Trustee a reasonable supply of certificated
Notes in definitive, fully registered form, without interest coupons.


 


(v)                                 Neither any members
of, or participants in, the Depositary (“Agent
Members”) nor any other Persons on whose behalf Agent Members may
act shall have any rights under this Indenture with respect to any Global Note
registered in the name of the Depositary or any nominee thereof, and the
Depositary or such nominee, as the case may be, may be treated by the Issuer,
the Trustee and any agent of the Issuer or the Trustee as the absolute owner
and holder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee
from giving effect to any written certification, proxy or other


 


14

















 


authorization furnished by the Depositary or such nominee, as the case
may be, or impair, as between the Depositary, its Agent Members and any other
Person on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a holder of
any Note.


 


(vi)                              At such time as all
interests in a Global Note have been redeemed, repurchased, converted or
exchanged for Notes in certificated form, such Global Note shall, upon receipt
thereof, be canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian.  At any time prior to such cancellation, if
any interest in a Global Note is redeemed, repurchased, converted or exchanged
for Notes in certificated form, 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, 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.


 


(b)                                 Reserved.


 


(c)                                  The
Trustee shall have no responsibility or obligation to any Agent Members or any
other Person with respect to the accuracy of the books or records, or the acts
or omissions, of the Depositary or its nominee or of any participant or member
thereof, with respect to any ownership interest in the Notes or with respect to
the delivery to any Agent Member or other Person (other than the Depositary) of
any notice (including any notice of redemption) or the payment of any amount,
under or with respect to such Notes.  All
notices and communications to be given to the Noteholders and all payments to
be made to Noteholders under the Notes shall be given or made only to or upon
the order of the registered Noteholders (which shall be the Depositary or its
nominee in the case of a Global Note). 
The rights of beneficial owners in any Global Note shall be exercised
only through the Depositary subject to the customary procedures of the
Depository.  The Trustee may rely and
shall be fully protected in relying upon information furnished by the
Depositary with respect to its Agent Members.


 


The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members in any
Global Indenture) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.


 


Section 2.06                                Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become mutilated or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
its written request the Trustee or an authenticating agent appointed by the
Trustee shall authenticate and make available for delivery, a new Note, bearing
a 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 Issuer, to the
Trustee and, if applicable, to such


 


15

















 


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, the
applicant shall also furnish to the Issuer, 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.


 


Following receipt by the Trustee or such authenticating agent, as the
case may be, of satisfactory security or indemnity and evidence, as described
in the preceding paragraph, the Trustee or such authenticating agent may
authenticate any such substituted Note and make available for delivery such
Note. Upon the issuance of any substituted Note, the Issuer may require the
payment by the holder of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith.  In case
any Note which has matured or is about to mature or has been called for
redemption or has been properly tendered for repurchase on a Fundamental Change
Purchase Date (and not withdrawn), as the case may be, or is to be converted
pursuant to this Indenture, shall become mutilated or be destroyed, lost or
stolen, the Issuer may, instead of issuing a substitute Note, pay or authorize
the payment of 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 Issuer, 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 in connection with such
substitution, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer, the Trustee and, if applicable, any Paying
Agent or Conversion Agent evidence to their satisfaction of the destruction, loss
or theft of such Note and of the ownership thereof.


 


Every substitute Note issued pursuant to the provisions of this Section 2.06
by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, 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) this 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 or payment or exchange or redemption 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 or payment or exchange or
redemption or repurchase of negotiable instruments or other securities without
their surrender.


 


Section 2.07                                Temporary Notes.  Pending the preparation of Notes in
certificated form, the Issuer may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the written request of the Issuer,
authenticate and deliver temporary Notes (printed or lithographed).  Temporary Notes shall be issuable in any
authorized denomination, and substantially in the form of the Notes in
certificated form, but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Issuer.  Every such temporary Note shall be executed
by the Issuer 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 Notes in certificated form. Without unreasonable delay, the
Issuer will execute and deliver to the Trustee or such authenticating agent
Notes in certificated form


 


16

















 


and thereupon
any or all temporary Notes may be surrendered in exchange therefor, at each
office or agency maintained by the Issuer pursuant to Section 4.02 and the
Trustee or such authenticating agent shall authenticate and make available for
delivery in exchange for such temporary Notes an equal aggregate principal
amount of Notes in certificated form. 
Such exchange shall be made by the Issuer 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 this Indenture as Notes in certificated
form authenticated and delivered hereunder.


 


Section 2.08                                Cancellation of Notes.  All Notes surrendered for the purpose of
payment, redemption, repurchase, conversion, exchange or registration of
transfer shall, if surrendered to the Issuer or any paying agent to whom Notes
may be presented for payment (the “Paying
Agent”) or Conversion Agent, which shall initially be the Trustee,
or any Note Registrar, be surrendered to the Trustee and promptly canceled by
it or, if surrendered to the Trustee, shall be promptly canceled by it and no
Notes shall be issued in lieu thereof except as expressly permitted by any of
the provisions of this Indenture.  The
Trustee shall dispose of such canceled Notes in accordance with its customary
procedures.  If the Issuer shall acquire
any of the Notes, such acquisition shall not operate as a redemption,
repurchase or satisfaction of the indebtedness represented by such Notes unless
and until the same are delivered to the Trustee for cancellation.


 


Section 2.09                                CUSIP Numbers.  The Issuer in issuing the Notes may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption as a convenience to Noteholders; 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 as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. 
The Issuer will promptly notify the Trustee of any change in the “CUSIP” numbers.


 


ARTICLE 3


 


REDEMPTION AND REPURCHASE OF NOTES


 


Section 3.01                                Optional Redemption of Notes.  The Issuer shall have the right to redeem the
Notes on the terms set forth in this Section 3.01 in order to preserve Issuer’s
qualification as a REIT.  If the Issuer
determines it is necessary to redeem the Notes in order to preserve Issuer’s
qualification as a REIT, the Issuer may, upon the notice set forth in Section 3.02,
redeem the Notes for cash, in whole or in part, at a redemption price equal to
100% of the principal amount of the Notes to be redeemed plus unpaid interest,
if any, accrued thereon to the Redemption Date; provided that, in connection with any such redemption, the
Issuer shall provide the Trustee with an Officers’ Certificate evidencing that
the Board of Directors has, in good faith, made the determination that it is
necessary to redeem the Notes in order to preserve Issuer’s qualification as a
REIT.


 


The foregoing redemption right shall terminate if the restrictions on
ownership and transfer of the shares of Common Stock set forth in the Charter
shall terminate or if the Board of


 


17

















 


Directors of
the Issuer shall revoke or otherwise terminate the election by the Issuer to
qualify as a REIT pursuant to 856(a) (or any successor thereto) of the
Code.


 


Other than as set forth in this Section 3.01, the Notes shall not
be subject to redemption at the option of the Issuer prior the Stated Maturity
thereof.


 


Section 3.02                                Notice of Optional Redemption; Selection of Notes.  In case the Issuer shall desire to exercise
the right to redeem all or, as the case may be, any part of the Notes pursuant
to Section 3.01, it shall fix a date for redemption and it or, at its
written request received by the Trustee not fewer than five (5) Business
Days prior (or such shorter period of time as may be acceptable to the Trustee)
to the date the notice of redemption is to be mailed, the Trustee in the name
of and at the expense of the Issuer, shall mail or cause to be mailed a notice
of such redemption not fewer than thirty-five (35) calendar days nor more than
sixty-five (65) calendar days prior to the Redemption Date to each holder of
Notes so to be redeemed in whole or in part at its last address as the same
appears on the Note Register; provided
that if the Issuer makes such request of the Trustee, the text of the notice
shall be prepared by the Issuer.  Such
mailing shall be by first class mail. 
The notice, if mailed 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 notice by mail or any defect in the 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.  Concurrently with the mailing of any such
notice of redemption, the Issuer shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Issuer in its sole discretion.  The
failure to issue any such press release or any defect therein shall not affect
the validity of the redemption notice or any of the proceedings for the
redemption of any Note called for redemption.


 


Each such notice of redemption shall specify: (i) the aggregate
principal amount of Notes to be redeemed, (ii) the CUSIP number or numbers
of the Notes being redeemed, (iii) the date fixed for redemption (which
shall be a Business Day), (iv) the redemption price at which Notes are to
be redeemed, (v) the place or places of payment and that payment will be
made upon presentation and surrender of such Notes, (iv) that interest
accrued and unpaid to the date fixed for redemption will be paid as specified
in said notice, and that on and after said date interest thereon or on the
portion thereof to be redeemed will cease to accrue, (vii) that the holder
has a right to convert the Notes called for redemption, (viii) the
Conversion Rate on the date of such notice and (ix) the time and date on
which the right to convert such Notes or portions thereof pursuant to this
Indenture will expire.  If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the Notes
to be redeemed (including CUSIP numbers, if any).  In case any Note is to be redeemed in part
only, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that, on and after the Redemption Date,
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion thereof will be issued.


 


Whenever any Notes are to be redeemed, the Issuer shall give the
Trustee written notice of the Redemption Date, together with an Officers’
Certificate as to the aggregate principal amount of Notes to be redeemed, not
fewer than forty (40) calendar days (or such shorter period of time as may be
acceptable to the Trustee) prior to the Redemption Date.


 


18
















 


On or prior to the Redemption Date specified in the notice of
redemption given as provided in this Section 3.02, the Issuer shall
deposit with the Paying Agent (or, if the Issuer is acting as its own Paying
Agent, set aside, segregate and hold in trust as provided in Section 4.04)
an amount of money in immediately available funds sufficient to redeem on the
Redemption Date all the Notes (or portions thereof) so called for redemption
(other than those theretofore surrendered for exchange) at the appropriate
redemption price, together with accrued interest to the Redemption Date; provided that if such payment is made on
the Redemption Date, it must be received by the Paying Agent, by 11:00 a.m.,
New York City time, on such date.  The
Issuer shall be entitled to retain any interest, yield or gain on amounts
deposited with the Paying Agent pursuant to this Section 3.02 in excess of
amounts required hereunder to pay the redemption price and accrued interest to
the Redemption Date.  If any Note called
for redemption is converted pursuant hereto prior to such Redemption Date, any
money deposited with the Paying Agent or so segregated and held in trust for
the redemption of such Note shall be paid to the Issuer or, if then held by the
Issuer, shall be discharged from such trust.


 


If less than all of the outstanding Notes are to be redeemed, the
Trustee shall select the Notes or portions thereof of the Global Note or the
Notes in certificated form to be redeemed (in principal amounts of $1,000 or
multiples thereof) on a pro rata basis or by another method the Trustee deems
fair and appropriate.  If any Note
selected for redemption in part is submitted for conversion in part after such
selection, the portion of such Note submitted for conversion shall be deemed
(so far as may be possible) to be the portion to be selected for
redemption.  The Notes (or portions
thereof) so selected for redemption shall be deemed duly selected for
redemption for all purposes hereof, notwithstanding that any such Note is
submitted for conversion in part before the mailing of the notice of
redemption.


 


Upon any redemption of less than all of the outstanding Notes, the
Issuer and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes that are outstanding at the time of
redemption, treat as outstanding any Notes surrendered for conversion during
the period in which Notes are selected for redemption.


 


Section 3.03                                Payment of Notes Called for Redemption by the Issuer.  If notice of redemption has been given as
provided in Section 3.02, the Notes or portion of Notes with respect to
which such notice has been given shall, unless converted pursuant to the terms
hereof, become due and payable on the date fixed for redemption at the place or
places stated in such notice at the redemption price, plus interest accrued to
the Redemption Date, and unless the Issuer shall default in the payment of the
amounts owing on the Notes upon such redemption, interest on the Notes or
portion of Notes so called for redemption shall cease to accrue on and after
such date and, except as provided in Section 7.05 and Section 11.02,
the Notes shall cease to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof plus accrued and
unpaid interest to the Redemption Date. 
On presentation and surrender of such Notes at a place of payment in
said notice specified, the said Notes or the specified portions thereof shall
be paid and redeemed by the Issuer at the redemption price, together with
interest accrued thereon to the Redemption Date.


 


Upon presentation of any Note redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of


 


19

















 


the Issuer, a
new Note or Notes, of authorized denominations, in principal amount equal to
the unredeemed portion of the Notes so presented.


 


Notes and portions of Notes that are to be redeemed pursuant to this Article 3
shall be convertible by the holder thereof until 5:00 p.m., New York City
time, on the Business Day immediately preceding the Redemption Date, unless the
Issuer shall fail to pay the redemption price.


 


Section 3.04                                Sinking Fund.  There shall be no sinking fund provided for
the Notes.


 


Section 3.05                                Repurchase at Option of Holders Upon a Fundamental
Change.


 


(a)                                  If
there shall occur a Fundamental Change at any time prior to the Stated Maturity
of the Notes, then each Noteholder shall have the right to require the Issuer
to repurchase its Notes for cash, in whole or in part (in principal amounts of
$1,000 and integral multiples thereof), on a date (the “Fundamental Change Purchase Date”)
specified by the Issuer (which date shall be not earlier than fifteen (15) days
and not more than thirty (30) days after the Issuer Repurchase Notice Date
related to such Fundamental Change) at a purchase price equal to 100% of the
principal amount of the Notes being repurchased, plus accrued and unpaid
interest to the Fundamental Change Purchase Date (such amount, the “Fundamental Change Purchase Price”).


 


(b)                                 Within
20 days after the occurrence of a Fundamental Change, the Issuer shall mail or
cause to be mailed to all holders of record on the date of the Fundamental
Change (and to beneficial owners as required by applicable law) an Issuer
Repurchase Notice as set forth in Section 3.06 with respect to such
Fundamental Change.  The Issuer shall
also deliver a copy of the Issuer Repurchase Notice to the Trustee and the
Paying Agent at such time as it is mailed to Noteholders.  In addition to the mailing of such Issuer
Repurchase Notice, the Issuer shall disseminate a press release through Dow
Jones & Company, Inc., Bloomberg Business News, PR Newswire or a
substantially similar financial news organization announcing the occurrence of
such Fundamental Change and publish such information in a newspaper of general
circulation in The City of New York or on the Issuer’s web site, or through
such other public medium as the Issuer shall deem appropriate at such
time.  The failure to issue any such
press release or any defect therein shall not affect the validity of the Issuer
Repurchase Notice or any proceedings for the repurchase of any Note which any
Noteholder may elect to have the Issuer redeem as provided in this Section 3.05.


 


No failure of the Issuer to give the foregoing notices and no defect
therein shall limit the Noteholders’ repurchase rights or affect the validity
of the proceedings for the repurchase of the Notes pursuant to this Section 3.05.


 


(c)                                  In
order to exercise its repurchase right, the holder must deliver to the Paying
Agent, prior to the close of business on the third Business Day prior to the
Fundamental Change Purchase Date, a written notice of repurchase (the “Repurchase Notice”).  Such Repurchase Notice shall state:  (A) the certificate number (if the Note
is in certificated form) of the Note which the holder will deliver to be
repurchased, (B) the portion of the principal amount of the Note which the
holder will deliver to be repurchased, in multiples of $1,000, provided that


 


20

















 


the remaining
principal amount of Notes is in an authorized denomination and (C) that
such Note shall be repurchased pursuant to the terms and conditions specified
in the Note and in this Indenture.  Any
Repurchase Notice provided in respect of a beneficial interest in a Global Note
shall be required to comply with the applicable procedures of the Depositary.


 


(d)                                 The
Issuer, if so requested, shall repurchase from the holder thereof, pursuant to
this Section 3.05, a portion of a Note, if the principal amount of such
portion is $1,000 or a whole multiple of $1,000.  Provisions of this Indenture that apply to
the repurchase of all of a Note also apply to the repurchase of such portion of
such Note.


 


(e)                                  Notwithstanding
the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 3.05
if there has occurred and is continuing an Event of Default with respect to the
Notes (other than a default in the payment of the Fundamental Change Purchase
Price for the Notes to be repurchased).


 


(f)                                    The
Paying Agent shall promptly notify the Issuer of the receipt by it of any
Repurchase Notice or written notice of withdrawal thereof.  All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Note for repurchase shall be
determined by the Issuer, whose determination shall be final and binding absent
manifest error.


 


(g)                                 Payment
of the Fundamental Change Purchase Price for a Note for which a Repurchase
Notice has been delivered and not withdrawn is conditioned upon book-entry
transfer or delivery of the Notes, together with necessary endorsements, to the
Paying Agent.  Such Fundamental Change
Purchase Price shall be paid to such holder, subject to receipt of funds and/or
Notes by the Paying Agent, within two (2) Business Days following the
later of (x) the Fundamental Change Purchase Date with respect to such Note
(provided the holder has satisfied the conditions in this Section 3.05)
and (y) the time of book-entry transfer or delivery of such Note or beneficial
interest therein to the Paying Agent by the holder thereof.


 


Section 3.06                                Issuer Repurchase Notice.


 


(a)                                  In
connection with any repurchase of Notes, the Issuer shall, on the applicable
Issuer Repurchase Notice Date, give written notice to holders (with a copy to
the Trustee) setting forth the information specified in this Section 3.06
(in either case, the “Issuer Repurchase
Notice”).


 


Each Issuer Repurchase Notice shall:


 


(1)                                  state
the Fundamental Change Purchase Price and the amount of interest accrued and
unpaid per $1,000 principal amount of Notes to the Fundamental Change Purchase
Date;


 


(2)                                  the
Fundamental Change Purchase Date;


 


(3)                                  the
circumstances constituting the Fundamental Change;


 


(4)                                  state
that holders must exercise their right to elect to repurchase prior to the
close of business on the third Business Day prior to the Fundamental Change
Purchase Date;


 


21

















 


(5)                                  include
a form of Repurchase Notice;


 


(6)                                  state
the name and address of the Trustee and the Paying Agent and, if the Notes are
then convertible (including in connection with a Fundamental Change), state the
name and address of the Conversion Agent;


 


(7)                                  state
that Notes must be surrendered to the Paying Agent to collect the Fundamental
Change Purchase Price and accrued and unpaid interest;


 


(8)                                  state
that a holder may withdraw its Repurchase Notice at any time prior to the close
of business on the third Business Day prior to the Fundamental Change Purchase
Date by delivering a valid written notice of withdrawal in accordance with Section 3.07;


 


(9)                                  if
the Notes are then convertible (including in connection with a Fundamental
Change), state that Notes as to which a Repurchase Notice has been given may be
converted from and including the Effective Date of such Fundamental Change up
to and including the earlier of the 30th Business Day following such
Effective Date and the Business Day prior the Stated Maturity of the Notes
provided the Repurchase Notice is withdrawn by the holder in accordance with
the terms of this Indenture;


 


(10)                            state
that, unless the Issuer defaults in making payment of the Fundamental Change
Purchase Price, interest on Notes in respect of which a Repurchase Notice shall
have been submitted and not withdrawn will cease to accrue on and after the
Fundamental Change Purchase Date; and


 


(11)                            state
the CUSIP number of the Notes, if CUSIP numbers are then in use.


 


An Issuer
Repurchase Notice may be given by the Issuer or, at the Issuer’s request, the
Trustee shall give such Issuer Repurchase Notice in the Issuer’s name and at
the Issuer’s expense; provided
that the text of the Issuer Repurchase Notice shall be prepared by the Issuer.


 


If any of the Notes is represented by a Global Note, then the Issuer
will modify such notice to the extent necessary to accord with the applicable
procedures of the Depositary that apply to the repurchase of Global Notes.


 


(b)                                 The
Issuer will, to the extent applicable, comply with the provisions of Rule 13e-4
and Rule 14e-1 (or any successor provision) under the Exchange Act that
may be applicable at the time of the repurchase of the Notes, file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act and comply
with all other applicable federal and state securities laws in connection with
the repurchase of the Notes.


 


Section 3.07                                Withdrawal of Repurchase Notice.  A Repurchase Notice may be withdrawn, in
whole or in part, by means of a written notice of withdrawal delivered to the
office of the Paying Agent at any time prior to the close of business on the
third Business Day prior to a Fundamental Change Purchase Date.  Such notice of withdrawal must specify:


 


(a)                                  the
name of the holder;


 


22

















 


(b)                                 the
certificate number(s) of all withdrawn Notes in certificated form;


 


(c)                                  the
principal amount of Notes with respect to which such notice of withdrawal is
being submitted, which must be an integral multiple of $1,000; and


 


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


 


Any withdrawal notice provided in respect of a beneficial interest in a
Global Note shall be required to comply with the applicable procedures of the
Depositary.


 


Section 3.08                                Deposit of Repurchase Price.


 


(a)                                  Prior
to 11:00 a.m., New York City time, on the Fundamental Change Purchase
Date, the Issuer shall deposit with the Paying Agent or, if the Issuer is
acting as the Paying Agent, shall segregate and hold in trust as provided in Section 4.04
an amount of cash (in immediately available funds if deposited on the
Fundamental Change Purchase Date), sufficient to pay the aggregate Fundamental
Change Purchase Price of all the Notes or portions thereof that are to be
repurchased as of the Fundamental Change Purchase Date.


 


(b)                                 If
on the Fundamental Change Purchase Date the Paying Agent holds money sufficient
to pay the Fundamental Change Purchase Price of the Notes that holders have
elected to require the Issuer to repurchase in accordance with Section 3.05
then, on and after the Fundamental Change Purchase Date such Notes will cease
to be outstanding, interest will cease to accrue with respect to such Notes and
all other rights of the holders of such Notes will terminate, other than the
right to receive the Fundamental Change Purchase Price.  Such will be the case whether or not
book-entry transfer of the Note to the Paying Agent is made or whether or not
Notes in certificated form, together with necessary endorsements, are delivered
to the Paying Agent.


 


Section 3.09                                Notes Repurchased in Part.  Upon presentation of any Note repurchased
only in part, the Issuer shall execute and the Trustee shall authenticate and
make available for delivery to the holder thereof, at the expense of the
Issuer, a new Note or Notes, of any authorized denomination, in aggregate
principal amount equal to the unrepurchased portion of the Notes presented.


 


Section 3.10                                Third Party Purchase.  The Issuer may arrange for a third party to
purchase Notes for which the Issuer has received a valid Repurchase Notice that
has not been properly withdrawn, in the manner and otherwise in compliance with
the requirements set forth herein and in the Notes. If a third party purchases
any Notes under such circumstances, then interest will continue to accrue on
the Notes and such Notes will continue to be outstanding after the Fundamental
Change Purchase Date for all purposes of the Indenture and will be fungible
with all other Notes then outstanding.


 


Section 3.11                                Repayment to the Issuer.  Subject to Section 11.04, the Paying
Agent shall return to the Issuer any cash that remains unclaimed, together with
interest, if any, thereon, held by them for the payment of the Fundamental
Change Purchase Price; provided
that to the extent that the aggregate amount of cash deposited by the Issuer
pursuant to Section 3.08 exceeds the


 


23

















 


aggregate
Fundamental Change Purchase Price of the Notes or portions thereof which the
Issuer is obligated to repurchase as of the Fundamental Change Purchase Date,
then, unless otherwise agreed in writing with the Issuer, promptly after the
second Business Day following the Fundamental Change Purchase Date, the Paying
Agent shall return any such excess to the Issuer, together with interest, if
any, thereon.


 


ARTICLE 4



PARTICULAR COVENANTS OF THE ISSUER


 


Section 4.01                                Payment of Principal, Premium and Interest.  The Issuer covenants and agrees that it will
duly and punctually pay or cause to be paid when due the principal of
(including the redemption price upon redemption or the Fundamental Change
Purchase Price upon repurchase, in each case pursuant to Article 3), and
interest on, each of the Notes at the places, at the respective times and in
the manner provided herein and in the Notes.


 


Section 4.02                                Maintenance of Office or Agency.  The Issuer will maintain an office or agency
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Issuer in respect of the Notes and
this Indenture may be served.  As of the
date of this Indenture, such office shall be the offices of US Bank Trust
National Association, 100 Wall Street, 16th floor, Suite 1600,
New York, New York 10005, Attention:  Corporate Trust Department, and, at any other
time, at such other address as the Trustee may designate from time to time by
notice to the Issuer.  The Issuer will
give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency not designated or appointed by the
Trustee.  If at any time the Issuer shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office.


 


The Issuer may also from time to time designate co-registrars and one
or more offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such
designations.  The Issuer will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.


 


The Issuer hereby initially designates the Trustee as Paying Agent,
Note Registrar, Custodian and Conversion Agent and the Corporate Trust Office
shall be considered as one such office or agency of the Issuer for each of the
aforesaid purposes.


 


So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 7.10(a) and
the third paragraph of Section 7.11. 
If co-registrars have been appointed in accordance with this Section,
the Trustee shall mail such notices only to the Issuer and the holders of Notes
it can identify from its records.


 


Section 4.03                                Appointments to Fill Vacancies in Trustee’s Office.  The Issuer, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, upon the terms and


 


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conditions and
otherwise as provided in Section 7.10, a Trustee, so that there shall at
all times be a Trustee hereunder.


 


Section 4.04                                Provisions as to Paying Agent.


 


(a)                                  If
the Issuer shall appoint a Paying Agent other than the Trustee, or if the
Trustee shall appoint such a Paying Agent, the Issuer 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 4.04:


 


(1)                                  that it will hold all
sums held by it as such agent for the payment of the principal of, or interest
on, the Notes (whether such sums have been paid to it by the Issuer or by any
other obligor on the Notes) in trust for the benefit of the holders of the
Notes;


 


(2)                                  that it will give the
Trustee notice of any failure by the Issuer (or by any other obligor on the
Notes) to make any payment of the principal of, or interest on, the Notes when
the same shall be due and payable; and


 


(3)                                  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 Issuer shall, on or before each due date of the principal of, or
interest on, the Notes, deposit with the Paying Agent a sum (in funds which are
immediately available on the due date for such payment) sufficient to pay such
principal, or interest and (unless such Paying Agent is the Trustee) the Issuer
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 shall be received by the Paying Agent by 11:00 a.m.
New York City time, on such date.


 


(b)                                 If
the Issuer shall act as its own Paying Agent, it will, on or before each due
date of the principal of, or 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 and interest so becoming due and will promptly notify the
Trustee of any failure to take such action and of any failure by the Issuer (or
any other obligor under the Notes) to make any payment of the principal of, or
interest on, the Notes when the same shall become due and payable.


 


(c)                                  Anything
in this Section 4.04 to the contrary notwithstanding, the Issuer may, at
any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Issuer or any Paying Agent hereunder as required by
this Section 4.04, such sums to be held by the Trustee upon the trusts
herein contained and upon such payment by the Issuer or any Paying Agent to the
Trustee, the Issuer or such Paying Agent shall be released from all further
liability with respect to such sums.


 


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(d)                                 Anything
in this Section 4.04 to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section 4.04 is subject to Section 11.02
and Section 11.03.


 


The Trustee shall not be responsible for the actions of any other
Paying Agents (including the Issuer if acting as its own Paying Agent) and
shall have no control of any funds held by such other Paying Agents.


 


Section 4.05                                Existence.  Subject to Article 10, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence and rights (charter and statutory); provided that the Issuer shall not be
required to preserve any such right if the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Noteholders.


 


Section 4.06                                Reserved.


 


Section 4.07                                Stay, Extension and Usury Laws.  The Issuer 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 which would prohibit or forgive the Issuer
from paying all or any portion of the principal, premium, if any, or interest
on the Notes as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture and the Issuer (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 4.08                                Compliance Certificate.  The Issuer shall deliver to the Trustee,
within one hundred twenty (120) calendar days after the end of each fiscal year
of the Issuer, a certificate signed by any of the principal executive officer,
principal financial officer or principal accounting officer of the Issuer,
stating whether or not to the knowledge of the signer thereof the Issuer is in
default in the performance and observance of any of the terms, provisions and
conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Issuer shall be in
default, specifying all such defaults and the nature and the status thereof of
which the signer may have knowledge.


 


The Issuer will deliver to the Trustee, promptly upon becoming aware of
(i) any default in the performance or observance of any covenant,
agreement or condition contained in this Indenture, or (ii) any Event of
Default, an Officers’ Certificate specifying with particularity such default or
Event of Default and further stating what action the Issuer has taken, is
taking or proposes to take with respect thereto.


 


Any notice required to be given under this Section 4.08 shall be
delivered to a Responsible Officer of the Trustee at its Corporate Trust
Office.


 


Section 4.09                                Special Interest Notice.  In the event that the Issuer has elected to
pay Special Interest to holders of Notes pursuant to Section 6.01 of this
Indenture, the Issuer will provide written notice (“Special Interest Notice”) to the Trustee of its election to
pay Special


 


26

















 


Interest, no
later than fifteen (15) calendar days prior to the proposed payment date for
Special Interest, and the Special Interest Notice shall set forth the amount of
Special Interest to be paid by the Issuer on such payment date.  The Trustee shall not at any time be under
any duty or responsibility to any holder of Notes to determine the Special
Interest, or with respect to the nature, extent or calculation of the amount of
Special Interest when made, or with respect to the method employed in such
calculation of the Special Interest.


 


ARTICLE 5



NOTEHOLDERS’ LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE


 


Section 5.01                                Noteholders’ Lists.  The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee, quarterly, not more than
fifteen (15) calendar days after each December 15, March 15, June 15
and September 15 in each year beginning with December 15, 2007, and
at such other times as the Trustee may reasonably request in writing, within
thirty (30) calendar days after receipt by the Issuer of any such request (or
such lesser time as the Trustee may reasonably request in order to enable it to
timely provide any notice to be provided by it hereunder), a list in such form
as the Trustee may reasonably require of the names and addresses of the holders
of Notes as of a date not more than fifteen (15) calendar days (or such other
date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such
list need be furnished by the Issuer to the Trustee so long as the Trustee is
acting as the sole Note Registrar.


 


Section 5.02                                Preservation and Disclosure of Lists.


 


(a)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in
the most recent list furnished to it as provided in Section 5.01 or
maintained by the Trustee in its capacity as Note Registrar or co-registrar in
respect of the Notes, if so acting.  The
Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.


 


(b)                                 The
rights of Noteholders to communicate with other holders of Notes with respect
to their rights under this Indenture or under the Notes, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.


 


(c)                                  Every
Noteholder agrees with the Issuer and the Trustee that neither the Issuer nor
the Trustee nor any agent of either of them shall be held accountable by reason
of any disclosure of information as to names and addresses of holders of Notes
made pursuant to the Trust Indenture Act.


 


Section 5.03                                Reports by Trustee.  Section 5.04  Within sixty (60) calendar days after October 15
of each year commencing with the year 2008, the Trustee shall transmit to
holders of Notes such reports dated as of October 15 of the year in which
such reports are made concerning the Trustee and its actions under this
Indenture as may be required pursuant to Section 313(a) of the Trust
Indenture Act at the times and in the manner provided pursuant thereto.  In the event that no events have occurred
under the applicable sections of the Trust Indenture Act the Trustee shall be
under no duty or obligation to provide such reports.


 


27

















 


(a)                                  A
copy of such report shall, at the time of such transmission to holders of
Notes, be filed by the Trustee with each stock exchange and automated quotation
system, if any, upon which the Notes are listed and with the Issuer.  The Issuer will promptly notify the Trustee
in writing if the Notes are listed on any stock exchange or automated quotation
system or delisted therefrom.


 


Section 5.04                                Reports by Issuer.  The Issuer will file with the Trustee within
15 days after the Issuer files the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may prescribe) which
the Issuer is required to file with the Commission pursuant to Section 13
or Section 15(d) of the Exchange Act. If the Issuer is not required
to file information, documents or reports pursuant to either of those sections,
then it will file with the Trustee and the Commission such reports as may be
prescribed by the Commission at such time. 
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee’s receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officers’ Certificate).


 


ARTICLE 6



REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT


 


Section 6.01                                Events of Default.  “Event of
Default,” wherever used herein, means any one of the following
events (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):


 


(a)                                  default
in the payment of any principal amount or any redemption price or Fundamental
Change Purchase Price due with respect to the Notes when the same shall be due
and payable, whether at maturity, upon redemption or repurchase, by
acceleration or otherwise; or


 


(b)                                 default
in the payment of interest under the Notes as and when the same shall be due
and payable, and continuance of such default for a period of thirty (30)
calendar days; or


 


(c)                                  default
in the delivery when due of the amounts owing upon conversion, whether due in
cash or shares of Common Stock, on the terms set forth herein and in the Notes,
upon exercise of a holder’s conversion right in accordance with Article 13;
or


 


(d)                                 failure
by the Issuer to provide any required notice of the occurrence of Fundamental
Change within the time period required by this Indenture, which default
continues for 5 days; or


 


(e)                                  failure
on the part of the Issuer to comply with any other term, covenant or agreement
in the Notes or in this Indenture (other than a covenant or agreement a default
in


 


28

















 


whose
performance or whose breach is elsewhere in this Section 6.01 specifically
dealt with) and such failure continues for a period of sixty (60) calendar days
after the date on which written notice of such failure, requiring the Issuer to
remedy the same, shall have been given to the Issuer by the Trustee, or to the
Issuer and a Responsible Officer of the Trustee by the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Notes at the
time outstanding; or


 


(f)                                    the
failure to pay at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the principal amount of any indebtedness (other
than Non-Recourse Indebtedness) of the Issuer or any Subsidiary of the Issuer,
or the acceleration of the final stated maturity of any such indebtedness
(which acceleration is not rescinded, annulled or otherwise cured within 20
days of receipt by Issuer or such Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such indebtedness, together
with the principal amount of any other such indebtedness in default for failure
to pay principal at final maturity or which has been accelerated, aggregates
$50.0 million or more at any time; or


 


(g)                                 Reserved;


 


(h)                                 Reserved;


 


(i)                                     the
Issuer or any Significant Subsidiary of the Issuer pursuant to or under or
within meaning of any Bankruptcy Law:


 


(i)                                     commences a
voluntary case or proceeding seeking liquidation, reorganization or other
relief with respect to it or its debts or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property; or


 


(ii)                                  consents 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


 


(iii)                               consents to the
appointment of a custodian of it or for all or substantially of its property;
or


 


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


 


(j)                                     an
involuntary case or other proceeding shall be commenced against the Issuer or
any Significant Subsidiary of the Issuer seeking liquidation, reorganization or
other relief with respect to it 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 it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) consecutive
calendar days; or


 


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


 


29

















 


(i)                                     is for relief
against the Issuer or any Significant Subsidiary of the Issuer in an
involuntary case or proceeding; or


 


(ii)                                  appoints a trustee,
receiver, liquidator, custodian or other similar official of the Issuer or any
Significant Subsidiary of the Issuer or any substantial part of their
respective properties; or


 


(iii)                               orders the liquidation
of the Issuer or any Significant Subsidiary of the Issuer;


 


and, in each
case in this clause (j), the order or decree remains unstayed and in effect for
sixty (60) calendar days.


 


If an Event of Default (other than an Event of Default specified in Section 6.01(i),
6.01(j) and 6.01(k)) with respect to the Issuer) shall occur and be continuing,
unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the holders of at least twenty-five percent
(25%) in aggregate principal amount of the Notes then outstanding, by notice in
writing to the Issuer (and to the Trustee if given by Noteholders), may declare
the principal of, and interest accrued and unpaid on, all the Notes to be
immediately due and payable, and upon any such declaration the same shall be
immediately due and payable.


 


If an Event of Default specified in Section 6.01(i), 6.01(j) or
6.01(k) occurs with respect to the Issuer, the principal of, and interest
accrued and unpaid on, all the Notes shall be immediately and automatically due
and payable without necessity of further action.


 


If, at any time after the principal of and interest on 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, holders of a majority in aggregate principal amount of
the Notes then outstanding on behalf of the holders of all of the Notes then
outstanding, by written notice to the Issuer and to the Trustee, may waive all
defaults or Events of Default and rescind and annul such declaration and its
consequences subject to Section 6.07 if: 
(a) such rescission would not conflict with any final judgment or
decree of a court of competent jurisdiction; (b) interest on overdue
installments of interest (to the extent that payment of such interest is
lawful) and on overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid; (c) the Issuer has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances pursuant to Section 7.06; and (d) all
Events of Default, other than the nonpayment of the principal amount and any
accrued and unpaid interest that has become due solely because of such
acceleration, have been cured or waived. 
No such rescission and annulment shall extend to or shall affect any
subsequent default or Event of Default, or shall impair any right consequent
thereon.  The Issuer shall notify in
writing a Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default, as provided in Section 4.08.


 


In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Issuer, the holders of Notes, and the Trustee shall be


 


30

















 


restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the holders of Notes, and the Trustee shall
continue as though no such proceeding had been taken.


 


Notwithstanding the foregoing, to the extent elected by the Issuer, the
sole remedy for an Event of Default relating to the failure by the Issuer to
comply with the provisions of Section 5.04 of this Indenture shall, for
the first 365 days after the occurrence of such an Event of Default, consist
exclusively of the right to receive special interest (“Special Interest”) on the Notes at an
annual rate equal to 1% of the principal amount of the Notes. Such Special
Interest shall be paid quarterly in arrears, with the first quarterly payment
due on the first Interest Payment Date following the date on which such Special
Interest began to accrue on the Notes. Special Interest shall accrue on all
outstanding Notes from and including the date on which an Event of Default
relating to a failure to comply with the provisions of Section 5.04 shall
first occur to but not including the 365th day thereafter (or such
earlier date on which such Event of Default shall have been cured or waived).
On such 365th day (or earlier, if the Event of Default relating to
the failure to comply with Section 5.04 is cured or waived prior to such
365th day), such Special Interest shall cease to accrue and, if the
Event of Default relating to the failure to comply with Section 5.04 shall
not have been cured or waived prior to such 365th day, the Notes
shall be subject to acceleration as provided in this Section 6.01. The
provisions of this paragraph shall not affect the rights of holders in the
event of the occurrence of any other Event of Default. In the event the Issuer
shall not elect to pay Special Interest upon an Event of Default resulting from
the failure of the Issuer to comply with the provisions of Section 5.04,
the Notes shall be subject to acceleration as provided above in this Section 6.01.


 


If the Issuer shall elect to pay Special Interest in connection with an
Event of Default relating to its failure to comply with the requirements of Section 5.04,
the Issuer shall notify all holders and the Trustee and Paying Agent of such
election on or before the close of business on the date on which such Event of
Default shall first occur in accordance with the provisions of Section 4.09.


 


Section 6.02                                Payments of Notes on Default; Suit Therefor.  The Issuer covenants that in the case of an
Event of Default pursuant to Section 6.01(a) or 6.01(b), upon demand
of the Trustee, the Issuer will pay to the Trustee, for the benefit of the
holders of the Notes, (i) the whole amount that then shall be due and
payable on all such Notes for principal or interest, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon the
overdue installments of accrued and unpaid interest at the rate borne by the
Notes from the required payment date and, (ii) in addition thereto, any
amounts due the Trustee under Section 7.06.  Until such demand by the Trustee, the Issuer
may pay the principal of and interest on the Notes to the registered holders,
whether or not the Notes are overdue.


 


In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the Notes
and collect


 


31

















 


in the manner
provided by law out of the property of the Issuer or any other obligor on the
Notes wherever situated the monies adjudged or decreed to be payable.


 


In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Issuer or any other obligor on the Notes under any
Bankruptcy Law, 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 Issuer or
such other obligor, the property of the Issuer or such other obligor, or in the
case of any other judicial proceedings relative to the Issuer or such other
obligor upon the Notes, or to the creditors or property of the Issuer 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 6.02, 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 in respect of the Notes, and, in case of any judicial proceedings, to
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Noteholders
allowed in such judicial proceedings relative to the Issuer 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
the Trustee under Section 7.06, and to take any other action with respect
to such claims, including participating as a member of any official committee
of creditors, as it reasonably deems necessary or advisable, unless prohibited
by law or applicable regulations, and any receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Noteholders, to pay to the Trustee any amount due it
for reasonable compensation, expenses, advances and disbursements, including
counsel fees and expenses 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 which 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.


 


All rights of action and of asserting claims under this 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 this 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.


 


32

















 


Section 6.03                                Application of Monies Collected by Trustee.  Any monies collected by the Trustee pursuant
to this Article 6, 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 7.06;


 


SECOND:  In case the principal of
the outstanding Notes shall not have become due and be unpaid, to the payment
of accrued and unpaid interest, if any, on the Notes in default in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) as provided in Section 6.02
upon the overdue installments of interest at the annual rate borne by the
Notes, such payments to be made ratably to the Persons entitled thereto;


 


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 then owing and unpaid upon the
Notes for principal and interest, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of accrued and unpaid interest, as provided in Section 6.02,
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 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 and accrued and unpaid interest; and


 


FOURTH:  To the payment of the
remainder, if any, to the Issuer or any other Person lawfully entitled thereto.


 


Section 6.04                                Proceedings by Noteholder.  No holder of any Note shall have any right by
virtue of or by reference to any provision of this Indenture to institute any suit,
action or proceeding in equity or at law upon or under or with respect to this
Indenture, or for the appointment of a receiver, trustee, liquidator, custodian
or other similar official, or for any other remedy hereunder, except in the
case of a default in the payment of principal of, or interest on, the Notes,
unless (a) such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, (b) the holders of at least twenty-five percent (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 and shall have offered to the Trustee such
security or indemnity satisfactory to it as it may require against the costs,
liabilities or expenses to be incurred therein or thereby, (c) the Trustee
for sixty (60) calendar 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 (d) no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 6.07;
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 of Notes shall have any right in any manner
whatever by virtue of or by reference to any provision of this Indenture to
affect, disturb or prejudice the rights of any other holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such holder,


 


33

















 


or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Notes (except as
otherwise provided herein).  For the
protection and enforcement of this Section 6.04, each and every Noteholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.


 


Notwithstanding any other provision of this Indenture and any provision
of any Note, the right of any holder of any Note to receive payment of the
principal of (including the redemption price or Fundamental Change Purchase
Price upon redemption or repurchase pursuant to Article 3) and accrued
interest on such Note, on or after the respective due dates expressed in such
Note or in the event of redemption or repurchase, or to institute suit for the
enforcement of any such payment on or after such respective dates against the
Issuer shall not be impaired or affected without the consent of such holder.


 


Anything contained in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.


 


Section 6.05                                Proceedings by Trustee.  In case of an Event of Default, the Trustee
may, in its discretion, proceed to protect and enforce the rights vested in it
by this 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 this Indenture or in aid
of the exercise of any power granted in this Indenture, or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.


 


Section 6.06                                Remedies Cumulative and Continuing.  All powers and remedies given by this Article 6
to the Trustee or to the Noteholders 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 this 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 occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 6.04, every power and remedy given by this Article 6
or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.


 


Section 6.07                                Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. 
The holders of not less than a majority in aggregate principal amount of
the Notes at the time outstanding 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; provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture, (b) the Trustee may take any other action which is
not inconsistent with such direction, (c) the Trustee may decline to take
any action that would benefit some


 


34

















 


Noteholder to
the detriment of other Noteholders and (d) the Trustee may decline to take
any action that would involve the Trustee in personal liability.


 


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 hereunder and its consequences except (i) a
default in the payment of the principal of, or interest on, the Notes, (ii) a
failure by the Issuer to convert any Notes as required by this Indenture, (iii) a
default in the payment of the redemption price on the Redemption Date pursuant
to Article 3, (iv) a default in the payment of the Fundamental Change
Purchase Price on the Fundamental Change Purchase Date pursuant to Article 3
or (v) a default in respect of a covenant or provisions hereof which under
Article 9 cannot be modified or amended without the consent of the holders
of all Notes then outstanding or each Note affected thereby.


 


Upon any such waiver, the Issuer, 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 6.07, said default or Event of Default
shall for all purposes of the Notes and this 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 6.08                                Notice of Defaults.  The Trustee shall, within ninety (90)
calendar days after a Responsible Officer of the Trustee has knowledge of the
occurrence of a default, mail to all Noteholders, 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 default in the payment of the principal of, or
interest on, any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Noteholders.


 


Section 6.09                                Undertaking to Pay Costs.  All parties to this 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 this 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 6.09 (to the extent permitted by law) shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent in principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04, or to any suit instituted by any Noteholder
for the enforcement of the payment of the principal of, or interest on, any
Note on or after the due date expressed in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions
of Article 13.


 


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ARTICLE 7


 


THE TRUSTEE


 


Section 7.01                                Duties and Responsibilities of Trustee.  The Trustee, prior to the occurrence of an
Event of Default and after the curing or waiver of all Events of Default which
may have occurred, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture. 
In case an Event of Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the
conduct of its own affairs.


 


No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act
or its own willful misconduct, except that:


 


(a)                                  prior
to the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred:


 


(i)                                     the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture and the Trust Indenture Act, and the Trustee shall not be
liable except for the performance of such duties and obligations as are specifically
set forth in this Indenture and no implied covenants or obligations shall be
read into this Indenture and the Trust Indenture Act against the Trustee; and


 


(ii)                                  in the absence of bad
faith and willful misconduct on the part of the Trustee, the Trustee may
conclusively rely as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they substantially
conform to the requirements of this Indenture;


 


(b)                                 the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Officers of the Trustee, unless the Trustee was
negligent in ascertaining the pertinent facts;


 


(c)                                  the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the written direction of the
holders of not less than a majority in principal amount of the Notes at the
time outstanding determined as provided in Section 8.04 relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;


 


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(d)                                 whether
or not therein provided, every provision of this Indenture relating to the
conduct or affecting the liability of, or affording protection to, the Trustee
shall be subject to the provisions of this Section;


 


(e)                                  the
Trustee shall not be liable in respect of any payment (as to the correctness of
amount, entitlement to receive or any other matters relating to payment) or
notice effected by the Issuer or any Paying Agent (other than the Trustee) or
any records maintained by any co-registrar (other than the Trustee) with
respect to the Notes;


 


(f)                                    if
any party fails to deliver a notice relating to an event the fact of which,
pursuant to this Indenture, requires notice to be sent to the Trustee, the
Trustee may conclusively rely on its failure to receive such notice as reason
to act as if no such event occurred unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless the Trustee has otherwise received
written notice thereof; and


 


(g)                                 the
Trustee shall not be deemed to have knowledge of any Event of Default hereunder
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless the Trustee shall have been notified in writing of such Event of Default
by the Issuer or a holder of Notes.


 


None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.


 


Section 7.02                                Reliance on Documents,
Opinions, etc.  Except as otherwise provided in Section 7.01:


 


(a)                                  the
Trustee may conclusively rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;


 


(b)                                 any
request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect
thereof be herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Issuer;


 


(c)                                  the
Trustee may consult with counsel of its own selection and any advice or Opinion
of Counsel shall be full and complete authorization and protection in respect
of any action taken or omitted by it hereunder in good faith and in reliance on
and in accordance with such advice or Opinion of Counsel;


 


(d)                                 the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Noteholders


 


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pursuant to
the provisions of this Indenture, unless such Noteholders shall have offered to
the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which may be incurred therein or thereby;


 


(e)                                  the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture or other paper or
document, but the Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney;


 


(f)                                    the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed by it with due care hereunder;


 


(g)                                 the
Trustee shall not be liable for any action taken, suffered or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;


 


(h)                                 the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act hereunder;


 


(i)                                     the
Trustee may request that the Issuer deliver an Officers’ Certificate setting
forth the names of individuals and/or titles of officers authorized at such
time to take specified actions pursuant to this Indenture, which Officers’
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded; and


 


(j)                                     any
permissive right or authority granted to the Trustee shall not be construed as
a mandatory duty.


 


Section 7.03                                No Responsibility for Recitals, etc.  The recitals contained herein and in the
Notes (except in the Trustee’s certificate of authentication) shall be taken as
the statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same.  The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes.  The Trustee shall not be
accountable for the use or application by the Issuer of any Notes or the
proceeds of any Notes authenticated and delivered by the Trustee in conformity
with the provisions of this Indenture.


 


Section 7.04                                Trustee, Paying Agents, Conversion Agents or Note
Registrar May Own Notes. 
The Trustee, any Paying Agent, the Conversion Agent or Note Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Notes with the same rights it would have if it were not Trustee, Paying Agent,
Conversion Agent or Note Registrar.


 


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Section 7.05                                Monies to be Held in Trust.  Subject to the provisions of Section 11.02,
all monies received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received.  Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.  Except as otherwise provided herein, the
Trustee shall be under no liability for interest on any money received by it
hereunder except as may be agreed in writing from time to time by the Issuer
and the Trustee.


 


Section 7.06                                Compensation and Expenses of Trustee.  The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such
compensation for all services rendered by it hereunder in any capacity (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) as mutually agreed to from time to time in writing
between the Issuer and the Trustee, and the Issuer will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence, willful misconduct, recklessness or bad
faith.  The Issuer also covenants to
indemnify the Trustee and any predecessor Trustee (or any officer, director or
employee of the Trustee), in any capacity under this Indenture and any
authenticating agent for, and to hold them harmless against, any and all loss,
liability, damage, claim or reasonable expense including taxes (other than
taxes based on the income of the Trustee) incurred without negligence, willful
misconduct, recklessness or bad faith on the part of the Trustee or such
officers, directors, employees or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this
trust or in any other capacity hereunder, including the reasonable costs and
expenses of defending themselves against any claim (whether asserted by the
Issuer, any holder or any other Person) of liability in the premises.  The obligations of the Issuer under this Section 7.06
to compensate or indemnify the Trustee and to pay or reimburse the Trustee for
reasonable expenses, disbursements and advances shall be secured by a lien
prior to that of the Notes upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of
particular Notes.  The obligation of the
Issuer under this Section shall survive the satisfaction and discharge of
this Indenture.


 


When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section 6.01(i),
6.01(j) or 6.01(k) with respect to the Issuer occurs, the expenses and the
compensation for the services are intended to constitute reasonable expenses of
administration under any bankruptcy, insolvency or similar laws.


 


Section 7.07                                Officers’ Certificate as Evidence.  Except as otherwise provided in Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established
prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of gross negligence, bad faith, recklessness or willful misconduct on
the part of the Trustee, be deemed to be conclusively proved and established by
an Officers’ Certificate delivered to the Trustee.


 


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Section 7.08                                Conflicting Interests of Trustee. If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture.


 


Section 7.09                                Eligibility of Trustee. There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50.0 million (or if such Person is a member of a bank
holding company system, its bank holding company shall have a combined capital
and surplus of at least $50.0 million). If such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of any
supervising or examining authority, then for the purposes of this Section the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 7.09, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.


 


Section 7.10                                Resignation or Removal of Trustee.


 


(a)                                  Subject
to Section 7.10(c), the Trustee may at any time resign by giving written notice
of such resignation to the Issuer and to the holders of Notes. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
trustee by written instrument, in duplicate, executed by order of the Board of
Directors, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment sixty (60) calendar days
after the mailing of such notice of resignation to the Noteholders, the
resigning Trustee may, upon ten Business Days’ notice to the Issuer and the
Noteholders, petition, at the expense of the Issuer, any court of competent
jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.


 


(b)                                 In
case at any time any of the following shall occur:


 


(i)                                     the
Trustee shall fail to comply with Section 7.08 after written request therefor
by the Issuer or by any Noteholder who has been a bona fide holder of a Note or
Notes for at least six months; or


 


(ii)                                  the
Trustee shall cease to be eligible in accordance with the provisions of Section
7.09 and shall fail to resign after written request therefor by the Issuer or
by any such Noteholder; or


 


(iii)                               the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed,
or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation;


 


then, in any
such case, the Issuer may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which


 


40

















 


instrument
shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section 6.09, any Noteholder who has
been a bona fide holder of a Note or Notes for at least six months may, on
behalf of itself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.


 


(c)                                  Any
resignation or removal of the Trustee and appointment of a successor trustee
pursuant to any of the provisions of this Section 7.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
7.11.


 


(d)                                 Notwithstanding
the replacement of the Trustee pursuant to this Section, the Issuer’s
obligations under Section 7.06 shall continue for the benefit of the retiring
Trustee.


 


Section 7.11                                Acceptance by Successor Trustee. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations of its predecessor hereunder,
with like effect as if originally named as trustee herein; but, nevertheless,
on the written request of the Issuer or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amount then due it pursuant to the
provisions of Section 7.06, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Issuer shall execute any
and all instruments in writing for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers. Any trustee
ceasing to act shall, nevertheless, retain a lien upon all property and funds
held or collected by such trustee as such, except for funds held in trust for
the benefit of holders of particular Notes, to secure any amounts then due it
pursuant to the provisions of Section 7.06.


 


No successor
trustee shall accept appointment as provided in this Section 7.11 unless, at
the time of such acceptance, such successor trustee shall be qualified under
the provisions of Section 7.08 and be eligible under the provisions of Section
7.09.


 


Upon
acceptance of appointment by a successor trustee as provided in this Section
7.11, the Issuer (or the former trustee, at the written direction of the
Issuer) shall mail or cause to be mailed notice of the succession of such
trustee hereunder to the holders of Notes at their addresses as they shall
appear on the Note Register. If the Issuer fails to mail such notice within ten
(10) calendar days after acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be mailed at the expense of
the Issuer.


 


Section 7.12                                Succession by Merger. Any corporation
into which the Trustee may be merged or exchanged or with which it may be consolidated,
or any corporation resulting from any merger, exchange or consolidation to
which the Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee (including any
trust created by this Indenture), shall be the successor to the Trustee
hereunder without the execution or filing of any paper or any further act on
the part of any of the parties hereto,


 


41

















 


provided that
in the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, such corporation shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09.


 


In case at the
time such successor to the Trustee shall succeed to the trusts created by this
Indenture, any of the Notes shall have been authenticated but not delivered,
any such successor to the Trustee may adopt the certificate of authentication
of any predecessor trustee or authenticating agent appointed by such
predecessor trustee, and deliver such Notes so authenticated; and in case at
that time any of the Notes shall not have been authenticated, any successor to
the Trustee or any authenticating agent appointed by such successor trustee may
authenticate such Notes in the name of the successor trustee; and in all such
cases such certificates shall have the full force that is provided in the Notes
or in this Indenture; provided that the right to adopt the certificate of authentication
of any predecessor Trustee or authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, exchange or
consolidation.


 


Section 7.13                                Preferential Collection of Claims. If
and when the Trustee shall be or become a creditor of the Issuer (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of the claims against the Issuer
(or any such other obligor).


 


ARTICLE 8


 


THE NOTEHOLDERS


 


Section 8.01                                Action by Noteholders. Whenever in
this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Notes may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action, the holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Noteholders in person or by agent or proxy appointed in writing, or
(b) by the record of the holders of Notes voting in favor thereof at any
meeting of Noteholders, or (c) by a combination of such instrument or
instruments and any such record of such a meeting of Noteholders. Whenever the
Issuer or the Trustee solicits the taking of any action by the holders of the
Notes, the Issuer or the Trustee may fix in advance of such solicitation a date
as the record date for determining holders entitled to take such action. The
record date, if any, shall be not more than fifteen (15) calendar days prior to
the date of commencement of solicitation of such action.


 


Section 8.02                                Proof of Execution by Noteholders. Subject
to the provisions of Sections 7.01 and 7.02, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note Registrar.


 


Section 8.03                                Absolute Owners. The Issuer, the
Trustee, any Paying Agent, any Conversion Agent and any Note Registrar may deem
the Person in whose name such Note shall


 


42

















 


be registered
upon the Note Register to be, and may treat it as, the absolute owner of such
Note (whether or not such Note shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by any Person other than
the Issuer or any Note Registrar) for the purpose of receiving payment of or on
account of the principal of, and interest on, such Note, for conversion of such
Note and for all other purposes; and neither the Issuer nor the Trustee nor any
Paying Agent nor any Conversion Agent nor any Note Registrar shall be affected
by any notice to the contrary. All such payments so made to any holder for the
time being, or upon its order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for monies
payable upon any such Note.


 


Section 8.04                                Issuer-Owned Notes Disregarded. In
determining whether the holders of the requisite aggregate principal amount of
Notes have concurred in any direction, consent, waiver or other action under
this Indenture, Notes which are owned by the Issuer or any other obligor on the
Notes or any Affiliate of the Issuer or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for
the purposes of determining whether the Trustee shall be protected in relying
on any such direction, consent, waiver or other action, only Notes which a
Responsible Officer knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Notes and that the
pledgee is not the Issuer, any other obligor on the Notes or any Affiliate of
the Issuer or any such other obligor. In the case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers’ Certificate listing and
identifying all Notes, if any, known by the Issuer to be owned or held by or for
the account of any of the above described Persons, and, subject to Section
7.01, the Trustee shall be entitled to accept such Officers’ Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Notes not listed therein are outstanding for the purpose of any such
determination.


 


Section 8.05                                Revocation of Consents; Future Holders Bound.
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Note. Except as aforesaid, any such action taken
by the holder of any Note shall be conclusive and binding upon such holder and
upon all future holders and owners of such Note and of any Notes issued in
exchange or substitution therefor, irrespective of whether any notation in
regard thereto is made upon such Note or any Note issued in exchange or
substitution therefor.


 


ARTICLE 9


 


SUPPLEMENTAL INDENTURES


 


Section 9.01                                Supplemental Indentures Without Consent of
Noteholders. The Issuer, when authorized by the resolutions of
the Board of Directors and the Trustee may, from time to


 


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time, and at
any time enter into an indenture or indentures supplemental without the consent
of the holders of the Notes hereto for one or more of the following purposes:


 


(a)                                  to
evidence a successor to the Issuer and the assumption by that successor of the
obligations of the Issuer under this Indenture and the Notes;


 


(b)                                 to
provide for conversion right of holders of the Notes in accordance with the
terms hereof if any reclassification or change of Common Stock or any
consolidation, merger or sale of all or substantially all of the property or
assets of the Issuer occurs;


 


(c)                                  to
add to the covenants of the Issuer for the benefit of the holders of the Notes
or to surrender any right or power conferred upon the Issuer;


 


(d)                                 to
secure the obligations of the Issuer in respect of the Notes;


 


(e)                                  to
evidence a Settlement Notice irrevocably electing to settle future conversion
obligations by Net Share Settlement;


 


(f)                                    to
evidence and provide the acceptance of the appointment of a successor Trustee
under this Indenture;


 


(g)                                 to
comply with the requirements of the Commission in order to effect or maintain
qualification of this Indenture under the Trust Indenture Act, as contemplated
by this Indenture or otherwise;


 


(h)                                 to
cure any ambiguity, omission, defect or inconsistency in this Indenture or make
any other provision with respect to matters or questions arising under this
Indenture which the Issuer may deem necessary or desirable and which shall not
be inconsistent with provisions of this Indenture; provided that such
modification or amendment does not, in the good faith opinion of the Board of
Directors, adversely affect the interests of the holders of the Notes in any
material respect;


 


(i)                                     to
add or modify any provision with respect to matters or questions arising under
this Indenture which the Issuer and the Trustee may deem necessary or desirable
and which will not adversely affect the interests of the holders of the Notes
in any material respect; or


 


(j)                                     to
modify any provision of this Indenture to conform that provision to the
description thereof set forth in the Prospectus Supplement.


 


Upon the
written request of the Issuer, accompanied by a copy of the resolutions of the
Board of Directors certified by the Issuer’s Secretary or Assistant Secretary
authorizing the execution of any supplemental indenture, the Trustee is hereby
authorized to join with the Issuer in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations that may
be therein contained and to accept the conveyance, transfer and assignment of
any property thereunder, 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 this Indenture or otherwise.


 


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Any
supplemental indenture authorized by the provisions of this Section 9.01 may be
executed by the Issuer 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 9.02.


 


Section 9.02                                Supplemental Indenture With Consent of Noteholders.
With the consent (evidenced as provided in Article 8) of the holders of not
less than a majority in aggregate principal amount of the Notes at the time
outstanding, the Issuer, when authorized by the resolutions of the Board of
Directors and the Trustee 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
this Indenture or any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided that no such supplemental
indenture shall, without the consent of the holder of each Note so affected:


 


(a)                                  impair
or adversely affect the manner of calculation or rate of accrual of interest on
the Notes or change the time of payment thereof;


 


(b)                                 make
the Notes payable in money or securities other than that stated in the Notes;


 


(c)                                  change
the Stated Maturity of the Notes;


 


(d)                                 reduce
the principal amount of, or the redemption price or Fundamental Change Purchase
Price specified in Article 3 hereof with respect to, the Notes;


 


(e)                                  make
any change that impairs or adversely affects the conversion rights of the
holders of the Notes;


 


(f)                                    make
any change that impairs or adversely affects the right to require the Issuer to
repurchase the Notes;


 


(g)                                 impair
the right to institute suit for the enforcement of any payment with respect to
the Notes or with respect to conversion of the Notes;


 


(h)                                 change
the obligation of the Issuer to redeem any Notes called for redemption on a
Redemption Date in a manner adverse to the holders;


 


(i)                                     change
the obligation of the Issuer to maintain an office or agency pursuant to
Section 4.02;


 


(j)                                     make
the Notes subordinate in right of payment to any other indebtedness;


 


(k)                                  Reserved;


 


(l)                                     reduce
the percentage in aggregate principal amount of outstanding Notes required to
modify or amend this Indenture or to waive compliance by the Issuer with the
provisions of the Indenture; or


 


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(m)                               modify
Section 6.07 or this Section 9.02.


 


Upon the
written request of the Issuer, accompanied by a copy of the resolutions of the
Board of Directors certified by the Issuer’s Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.


 


It shall not
be necessary for the consent of the Noteholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such consent shall approve the substance thereof.


 


Section 9.03                                Effect of Supplemental Indenture. Any
supplemental indenture executed pursuant to the provisions of this Article 9
shall comply with the Trust Indenture Act, as then in effect, provided that
this Section 9.03 shall not require such supplemental indenture or the Trustee
to be qualified under the Trust Indenture Act prior to the time, if ever, such
qualification is in fact required under the terms of the Trust Indenture Act or
the Indenture has been qualified under the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to such supplemental
indenture that any such qualification is required prior to the time, if ever,
such qualification is in fact required under the terms of the Trust Indenture
Act or the Indenture has been qualified under the Trust Indenture Act. Upon the
execution of any supplemental indenture pursuant to the provisions of this Article
9, this Indenture shall be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the holders of Notes shall thereafter be determined, exercised and
enforced hereunder, subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture
for any and all purposes.


 


Section 9.04                                Notation on Notes. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article 9 may bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Issuer or
the Trustee shall so determine, new Notes so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental indenture may, at the Issuer’s
expense, be prepared and executed by the Issuer, authenticated by the Trustee
(or an authenticating agent duly appointed by the Trustee pursuant to Section
15.11) and delivered in exchange for the Notes then outstanding, upon surrender
of such Notes then outstanding.


 


Section 9.05                                Evidence of Compliance of Supplemental Indenture to
be Furnished to Trustee. Prior to entering into any supplemental
indenture pursuant to this Article 9, the Trustee shall be provided with an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article 9 and is otherwise authorized or permitted by this Indenture.


 


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ARTICLE 10


 


CONSOLIDATION, MERGER, SALE, CONVEYANCE AND
LEASE


 


Section 10.01                          Issuer May Consolidate on Certain Terms.
Subject to the provisions of Section 10.02, the Issuer shall not, in a single
transaction or a series of related transactions, consolidate with, or sell,
lease or convey all or substantially all of its property and assets to, or
merge with or into, any other Person (whether or not affiliated with the
Issuer), unless: (i) the Issuer is the continuing entity, or the successor (if
other than the Issuer) formed by or resulting from any consolidation or merger
or which shall have received the transfer of assets shall be an entity
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall expressly assume the due
and punctual payment of the principal of, and interest on, all of the Notes,
and the due and punctual performance and observance of all of the covenants and
conditions in the Notes and this Indenture to be performed or satisfied by the
Issuer (including, without limitations, the obligation to convert Notes in
accordance with the provisions of Article 13 hereof) by a supplemental
indenture reasonably satisfactory in form to the Trustee executed and delivered
to the Trustee by such successor; (ii) if as a result of any such
consolidation, sale, lease, conveyance or merger, the Notes become convertible
into common stock or other securities issued by a Person that is other than the
Issuer or such successor Person, such Person shall fully and unconditionally
guarantee all obligations under the Notes and this Indenture; (iii) immediately
after giving effect to the transaction described above, no Event of Default or
event which, after notice or lapse of time, or both, would become an Event of
Default, has occurred and is continuing; and (iv) the Issuer has delivered to
the Trustee the Officers’ Certificate and Opinion of Counsel, if any, requested
pursuant to Section 15.03.


 


Section 10.02                          Issuer Successor to be Substituted. In
case of any such consolidation, sale, lease, conveyance or merger in which the
Issuer is not the continuing entity and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
reasonably satisfactory in form to the Trustee, of the due and punctual payment
of the principal of, and interest on, all of the Notes, and the due and
punctual performance and observance of all of the covenants and conditions of this
Indenture to be performed or satisfied by the Issuer, such successor Person
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein as the party of this first part, and the Issuer shall
be discharged from its obligations under the Notes and this Indenture. Such
successor Person thereupon may cause to be signed, and may issue either in its
own name or in the name of the Issuer any or all of the Notes, issuable
hereunder that theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Issuer and subject to all the terms, conditions and limitations in this
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 Issuer to the Trustee for
authentication, and any Notes that such successor Person 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 this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this 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, transfer or lease, upon compliance with this Article 10 the Person
named as the “Issuer” in the


 


47

















 


first
paragraph of this Indenture or any successor that shall thereafter have become
such in the manner prescribed in this Article 10 may be dissolved, wound up and
liquidated at any time thereafter and such Person shall be discharged from its
liabilities as obligor and maker of the Notes and from its obligations under
this Indenture.


 


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


 


ARTICLE 11


 


SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 11.01                          Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
conversion, registration of transfer or exchange of Notes herein expressly
provided for and except as further provided below), and the Trustee, on demand
of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when (a) either:
(1) all Notes theretofore authenticated and delivered (other than (i) Notes
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 11.04 and (ii) Notes for whose payment money has
theretofore been deposited in trust and thereafter repaid to the Issuer as
provided in Section 11.04) have been delivered to the Trustee for cancellation;
or (2) all such Notes not theretofore delivered to the Trustee for cancellation
have become due and payable, whether upon the Stated Maturity of the Notes, a
Redemption Date or a Fundamental Change Purchase Date or otherwise, or have all
been converted in accordance with the provisions of Article 13 hereof, and the
Issuer has irrevocably deposited or caused to be irrevocably deposited with the
Trustee a Paying Agent or the Conversion Agent (other than the Issuer or any of
its Affiliates), as applicable, as trust funds in trust cash and, if
applicable, shares of Common Stock in an amount sufficient to pay and discharge
the entire indebtedness on such Notes not theretofore delivered to the Trustee
for cancellation, for principal and interest to the date of such deposit (in
the case of Notes which have become due and payable) or for amounts owing upon
conversion; provided, however, that there shall not exist, on
the date of such deposit, a default or Event of Default; provided, further,
that such deposit shall not result in a breach or violation of, or constitute a
default under, this Indenture; (b) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and (c) the Issuer 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 this Indenture have been complied with.


 


Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Issuer
to the Trustee under Section 7.06 shall survive and, if money shall have been
deposited with the Trustee pursuant to subclause (2) of clause (a) of this
Section, the provisions of Sections 2.05, 2.06, 2.07, 3.05, 5.01, Article 13
and this Article 11, shall survive until the Notes have been paid in full.


 


Section 11.02                          Deposited Monies to be Held in Trust by Trustee.
Subject to Section 11.04, all monies deposited with the Trustee pursuant to
Section 7.05, shall be held in trust for the sole benefit of the Noteholders,
and such monies shall be applied by the Trustee to the


 


48

















 


payment,
either directly or through any Paying Agent (including the Issuer if acting as
its own Paying Agent), to the holders of the particular Notes for the payment
or redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal, premium, if any, and interest.
All moneys deposited with the Trustee pursuant to Section 7.05 (and held by it
or any Paying Agent) for the payment of Notes subsequently converted shall be
returned to the Issuer upon request. The Trustee is not responsible to anyone
for interest on any deposited funds except as agreed in writing.


 


Section 11.03                          Paying Agent to Repay Monies Held. Subject
to the provisions of Section 11.04, the Trustee or a Paying Agent shall hold in
trust, for the benefit of the Noteholders, all money deposited with it pursuant
to Section 11.01 and shall apply the deposited money in accordance with this
Indenture and the Notes to the payment of the principal of and interest on the
Notes.


 


Section 11.04                          Return of Unclaimed Monies. The
Trustee and each Paying Agent shall pay to the Issuer upon written request any
money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such payment, may, at the expense of the Issuer, either publish in a
newspaper of general circulation in The City of New York, or cause to be mailed
to each holder entitled to such money, notice that such money remains unclaimed
and that after a date specified therein, which shall be at least thirty (30)
calendar days from the date of such mailing or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. After
payment to the Issuer, holders entitled to money must look to the Issuer for
payment as general creditors unless an applicable abandoned property law
designates another person, and the Trustee and each Paying Agent shall be
relieved of all liability with respect to such money.


 


Section 11.05                          Reinstatement. If the Trustee or the
Paying Agent is unable to apply any money in accordance with Section 11.02 by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 11.01 until such time as
the Trustee or the Paying Agent is permitted to apply all such money in
accordance with Section 11.02; provided
that if the Issuer makes any payment of principal of or premium, if any, or
interest on any Note following the reinstatement of its obligations, the Issuer
shall be subrogated to the rights of the holders of such Notes to receive such
payment from the money held by the Trustee or Paying Agent.


 


ARTICLE 12


 


IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS


 


Section 12.01                          Indenture and Notes Solely Corporate Obligations.
No recourse for the payment of the principal of, or interest on, any Note, or
for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Issuer in this
Indenture or in any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator,


 


49

















 


stockholder,
partner, member, manager, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Issuer or any of the Issuer’s
Subsidiaries or of any successor thereto, either directly or through the Issuer
or any of the Issuer’s Subsidiaries or any successor thereto, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.


 


ARTICLE 13


 


CONVERSION OF NOTES


 


Section 13.01                          Right to Convert.


 


(a)                                  Subject
to the restrictions on ownership of shares of Common Stock as set forth in
Section 13.14 and upon compliance with the provisions of this Indenture, the
holder of any Notes may convert its Notes, or any portion thereof which is a
multiple of $1,000, into cash and, if applicable, shares of Common Stock by
surrender of such Notes so to be converted in whole or in part, together with
any required funds, under the circumstances and in the manner described in this
Article 13. Holders may surrender any Notes for conversion not previously
redeemed or repurchased at the applicable Conversion Rate prior to the close of
business on the Business Day immediately preceding the Stated Maturity of the
Notes at any time on or after September 1, 2012 and also upon the
occurrence of one of the events set forth in clauses (i) through (v) below.


 


(i)                                  Conversion
Upon Satisfaction of Market Price Condition. A holder may surrender any of
its Notes for conversion during any calendar quarter beginning after December
31, 2007 (and only during such calendar quarter) if, and only if, the Closing
Sale Price of the Common Stock for at least twenty (20) Trading Days (whether
or not consecutive) in the period of thirty (30) consecutive Trading Days
ending on the last Trading Day of the preceding calendar quarter is more than
130% of the Conversion Price per share of Common Stock in effect on the
applicable Trading Day. The Board of Directors will make appropriate
adjustments, in its good faith determination, to account for any adjustment to
the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the ex-dividend date of the event
occurs, during that thirty (30) consecutive Trading Day period.


 


(ii)                              Conversion
Upon Satisfaction of Trading Price Condition. A holder may surrender any of
its Notes for conversion during the five (5) consecutive Trading Day period
following any five (5) consecutive Trading Day period in which the Trading
Price per $1,000 principal amount of Notes (as determined following a
reasonable request by a holder of the Notes) was less than 98% of the product
of the Closing Sale Price of the Common Stock multiplied by the Conversion
Rate.


 


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“Trading Price” means, with respect to the
Notes on any date of determination, the average of the secondary market bid
quotations per $1,000 principal amount of Notes obtained by the Trustee for a
$5.0 million principal amount of Notes at approximately 3:30 p.m., New York
City time, on such determination date from two independent nationally
recognized securities dealers selected by the Issuer, which may include any of
the Underwriters or any successor to such entity. If at least two such bids
cannot reasonably be obtained by the Trustee, but one such bid can reasonably
be obtained by the Trustee, then one bid shall be used. If the Trustee cannot
reasonably obtain at least one bid for a $5,000,000 principal amount of Notes
from a nationally recognized securities dealer or, in the reasonable judgment
of the Issuer, the bid quotations are not indicative of the secondary market
value of the Notes, then the Trading Price per $1,000 principal amount of Notes
shall be deemed to be less than 98% of the product of the Closing Sale Price of
the Common Stock and the Conversion Rate on such determination date.


 


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


 


(iii)                          Conversion
Upon Notice of Redemption. A holder may surrender for conversion any of the
Notes called for redemption at any time prior to the close of business on the
Business Day prior to the Redemption Date, even if the Notes are not otherwise
convertible at such time. The right to convert Notes pursuant to this clause
(iii) will expire after the close of business on the Business Day prior to the
Redemption Date unless the Issuer defaults in making the payment due upon
redemption.


 


Holders
surrendering for conversion Notes which have been called for redemption shall
be entitled to receive a make-whole premium in the form of an increase in the
applicable Conversion Rate. Such increase in the Conversion Rate shall be
determined in the manner set forth in Section 13.13. In any such case, the
number of Additional Shares shall be calculated as if the Redemption Date were
the Effective Date of the Change of Control and the Share Price for such
purposes shall be deemed to be the average of the Closing Sale Prices of the
Common Stock on the 10 consecutive Trading Days up to but excluding the date on
which any Notes are surrendered for conversion.


 


(iv)                              Conversion
Upon Specified Transactions. If the Issuer elects to: (1) distribute to all
holders of shares of Common Stock rights entitling them to purchase, for a
period expiring within forty five (45) days after the date fixed for
determination of stockholders entitled to receive such rights, shares of Common
Stock at less than the Closing Sale Price of the Common Stock on the Trading
Day immediately preceding the declaration date of such distribution; or (ii)


 


51

















 


distribute to
all holders of shares of Common Stock assets, debt securities or certain rights
to purchase securities of the Issuer, which distribution has a per share value
exceeding 10% of the Closing Sale Price of Common Stock on the Trading Day
immediately preceding the declaration date of such distribution, the Issuer
shall notify holders of the Notes at least forty five (45) calendar days prior
to the ex-dividend date for such distribution. Following the issuance of such
notice, holders may surrender their Notes for conversion at any time until the
earlier of the close of business on the Business Day prior to the ex-dividend
date or an announcement by the Issuer that such distribution will not take
place; provided, however, that a holder may not convert its
Notes pursuant to this Section 13.01(a)(iv) if such holder may participate, on
an as-converted basis (assuming for this purpose that the Notes were
convertible solely into shares of Common Stock at the then applicable
Conversion Rate), in the distribution without any conversion of Notes. The “ex-dividend
date” means, with respect to any distribution on Common Stock, the first date
upon which a sale of shares of Common Stock does not automatically transfer the
right to receive the relevant distribution from the seller of shares of Common
Stock to the buyer.


 


In addition,
if the Issuer is party to a consolidation, merger or binding share exchange
pursuant to which all of the Common Stock would be exchanged for cash,
securities or other property that is not otherwise a Change in Control, a
holder may surrender Notes for conversion at any time from and including the
date that is twenty five (25) Business Days prior to the anticipated effective
time of the transaction up to and including five (5) Business Days after the
actual date of such transaction. The Issuer shall notify holders of Notes as
promptly as practicable following the date it publicly announces such
transaction (but in no event less than twenty five (25) Business Days prior to
the anticipated effective time of such transaction).


 


If a
transaction described in clauses (1) or (2) of the definition of “Change in
Control” occurs prior the Stated Maturity, a holder will have the right to
convert its Notes at any time from and including the Effective Date of such
transaction up to and including the earlier of the 30th Business Day
following the Effective Date of the transaction and the Business Day prior to
the Stated Maturity, provided that, if a holder has already delivered a
Repurchase Notice with respect to a Note, such holder may not surrender such
Note for conversion until it has withdrawn such notice in accordance with the
applicable provisions of Section 3.07 hereof. The Issuer will notify holders as
promptly as practicable following the date that it publicly announces such
Change in Control (but in no event later than five (5) Business Days prior to
the Effective Date of such Change in Control).


 


(b)                                 A
Note in respect of which a holder has delivered a Repurchase Notice exercising
such holder’s right to require the Issuer to repurchase such Note pursuant to
Section 3.05 may be converted only if such Repurchase Notice is withdrawn in
accordance with Section 3.07 prior to the close of business on the third
Business Day prior to the Fundamental Change Purchase Date.


 


(c)                                  A
holder of Notes is not entitled to any rights of a holder of shares of Common
Stock until such holder has converted its Notes and received upon conversion
thereof shares of Common Stock. The person in whose name any certificate or
certificates for shares of


 


52

















 


Common Stock
shall be issuable upon such conversion, if any, shall become on the date any
such certificate or certificates are delivered to such holder in accordance
with the provisions of this Article 13, the holder of record of the shares
represented thereby.


 


Section 13.02                          Exercise of Conversion Right; No Adjustment for Interest
or Dividends. In order to exercise the conversion right with
respect to any Note in certificated form, the Issuer must receive at the office
or agency of the Issuer maintained for that purpose or, at the option of such
holder, the Corporate Trust Office, such Note with the original or facsimile of
the form entitled “Conversion Notice”
on the reverse thereof, duly completed and manually signed, together with such
Notes duly endorsed for transfer, accompanied by the funds, if any, required by
this Section 13.02. Such notice shall also state the name or names (with
address or addresses) in which the certificate or certificates for shares of
Common Stock, if any, which shall be issuable on such conversion shall be
issued (if other than in the name of the holder tendering such Note for
conversion), and shall be accompanied by transfer or similar taxes, if required
pursuant to Section 13.07.


 


In order to
exercise the conversion right with respect to any interest in a Global Note,
the beneficial holder must complete, or cause to be completed, the appropriate
instruction form for conversion pursuant to the Depositary’s book-entry
conversion program; deliver, or cause to be delivered, by book-entry delivery
such interest in such Global Note; furnish appropriate endorsements and
transfer documents if required by the Issuer or the Trustee or the Conversion
Agent; and pay the funds, if any, required by this Section 13.02 and any
transfer taxes if required pursuant to Section 13.07.


 


Each
conversion shall be deemed to have been effected as to any such Note (or
portion thereof) on the date on which the requirements set forth above in this
Section 13.02 have been satisfied as to such Note (or portion thereof) (the “Conversion Date”).


 


Except as set
forth in the next succeeding paragraph, upon conversion of a Note, a holder
shall not be entitled to receive any cash payment in respect of interest, and
the Issuer shall not be required to adjust the Conversion Rate to account for
any accrued and unpaid interest. The delivery by the Issuer to the holder of
cash and shares of Common Stock, if any, upon conversion shall be deemed to
satisfy the Issuer’s obligation with respect to Notes tendered for conversion.
Accordingly, upon conversion of Notes, any accrued but unpaid interest shall be
deemed to be paid in full, rather than cancelled, extinguished or forfeited.


 


Holders of
Notes at the close of business on a Record Date for an interest payment shall
receive payment of the interest payable on the corresponding Interest Payment
Date notwithstanding the conversion of such Notes at any time after the close
of business on the applicable Record Date and on or prior to the corresponding
Interest Payment Date. Accordingly, any Note or portion thereof surrendered for
conversion after the close of business on the Record Date for any Interest
Payment Date and on or prior to the corresponding Interest Payment Date shall
be accompanied by payment, in immediately available funds or other funds
acceptable to the Issuer, of an amount equal to the interest otherwise payable
on such Interest Payment Date on the principal amount being converted; provided that no such payment need be made
(1) if the Issuer has specified a Redemption Date that is after a Record Date
and on or prior to the corresponding Interest Payment Date, (2) to the extent
of any Special Interest or overdue interest,


 


53

















 


if any overdue
interest exists at the time of conversion with respect to such Notes, or (3) in
respect of any conversion that occurs after the Record Date for the interest
payment due on October 1, 2012. Except as otherwise provided above in this
Article 13, no payment or other adjustment shall be made for interest accrued
on any Note converted or for dividends on any shares issued upon the conversion
of such Note as provided in this Article 13.


 


In case any
Note of a denomination greater than $1,000 shall be surrendered for partial
conversion, and subject to Section 2.04, the Issuer shall execute and the
Trustee shall authenticate and deliver to the holder of the Note so
surrendered, without charge to the holder, a new Note or Notes in authorized
denominations in an aggregate principal amount equal to the unconverted portion
of the surrendered Note.


 


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


 


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


 


Section 13.03                          Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip certificates representing
fractional shares shall be issued upon conversion of Notes. If more than one
Note shall be surrendered for conversion at one time by the same holder, the
number of full shares that shall be issuable upon conversion shall be computed
on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered. The Issuer
shall deliver cash in lieu of any fractional shares of Common Stock issuable in
connection with payment of the settlement amount determined in accordance with
the provisions of Section 13.12 based on the Closing Sale Price of the Common
Stock on the last day of the applicable Observation Period.


 


Section 13.04                          Conversion Rate. The Conversion Rate
for the Notes is 22.2000 shares of Common Stock per each $1,000 principal
amount of the Notes (herein called the “Conversion
Rate”), subject to adjustment as provided in Sections 13.05 and
13.13.


 


Section 13.05                          Adjustment of Conversion Rate. The
Conversion Rate shall be adjusted by the Issuer from time to time as follows:


 


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


 


CR1
= CR0 x OS1/OS0


 


54

















 


where


 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate in effect taking such event into account


 


OS0 = the number
of shares of Common Stock outstanding immediately prior to such event


 


OS1 = the number
of shares of Common Stock outstanding immediately after such event.


 


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


 


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


 


CR1
= CR0 x (OS0+X)/(OS0+Y)


 


where


 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate taking such event into account


 


OS0 = the number
of shares of Common Stock outstanding immediately prior to such event


 


X
= the total number of shares of Common Stock issuable pursuant to such rights,
warrants, options, other securities or convertible securities


 


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


 


 For purposes of this clause (b), in
determining whether any rights, warrants, options, other securities or
convertible securities entitle the holders to subscribe for or purchase, or
exercise a conversion right for, shares of Common Stock at less than the
applicable Closing Sale Price of the Common Stock, and in determining the
aggregate exercise or conversion price payable for such shares of Common Stock,
there shall be taken into account any consideration received by


 


55

















 


the Issuer for
such rights, warrants, options, other securities or convertible securities and
any amount payable on exercise or conversion thereof, with the value of such
consideration, if other than cash, to be determined by the Board of Directors
of the Issuer. If any right, warrant, option, other security or convertible
security described in this clause (b) is not exercised or converted prior to
the expiration of the exercisability or convertibility thereof, the new
Conversion Rate shall be readjusted to the Conversion Rate that would then be
in effect if such right, warrant, option, other security or convertible
security had not been so issued.


 


(c)                                  If
the Issuer distributes equity interests in itself, evidences of indebtedness or
other assets or property of the Issuer to all holders of shares of Common
Stock, excluding:


 


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


 


(ii)                                  distributions
paid exclusively in cash, and


 


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


 


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


 


CR1 = CR0
x SP0/(SP0-FMV)


 


where


 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate taking such event into account


 


SP0
= the average of the Closing Sale Prices of the Common Stock for the 10
consecutive Trading Days prior to the Business Day immediately preceding the
ex-dividend date for such distribution or, if there is no ex-dividend date, the
record date for such distribution


 


FMV=
the fair market value (as determined in good faith by the Board of Directors of
the Issuer) of the equity interests, evidences of indebtedness, assets or
property distributed with respect to each outstanding share of Common Stock on
the earlier of the record date or the ex-dividend date for such distribution.


 


An adjustment
to the Conversion Rate made pursuant to the immediately preceding clause shall
be made successively whenever any such distribution is made and shall become
effective on the ex-dividend date, or if none, the record date, for such
distribution.


 


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


 


CR1 = CR0
x (FMV0+MP0)/MP0


 


where


 


56

















 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate taking such event into account


 


FMV0
= the average of the Closing Sale Prices of the capital stock or similar equity
interest distributed to holders of shares of Common Stock applicable to one
share of Common Stock over the first 10 consecutive Trading Days after the
effective date of the Spin-Off


 


MP0
= the average of the Closing Sale Prices of the Common Stock over the first 10
consecutive Trading Days after the effective date of the Spin-Off.


 


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


 


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


 


(d)                                 If
the Issuer pays or makes any cash distribution in respect of any of its
quarterly fiscal periods (without regard to when paid) to all holders of shares
of Common Stock in an aggregate amount that, together with other cash
distributions paid or made in respect of such quarterly fiscal period, exceeds
the product of $0.825 (the “Reference
Dividend”) multiplied by the number of shares of Common Stock
outstanding on the record date for such distribution, the Conversion Rate will
be adjusted based on the following formula:


 


CR1 = CR0
x SP0/(SP0-C)


 


where


 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate taking such event into account


 


SP0
= the average of Closing Sale Prices of the Common Stock for the 10 consecutive
Trading Days prior to the Business Day immediately preceding the ex-dividend
date for such distribution or if there is no ex-dividend date, the record date
for such distribution


 


C
= the amount in cash per share of Common Stock that the Issuer distributes to
holders of shares of Common Stock in respect of such quarterly fiscal period
that exceeds the Reference Dividend.


 


An adjustment
to the Conversion Rate made pursuant to this clause (d) shall become effective
on the ex-dividend date, or if none, the record date for such dividend or
distribution. If any dividend or distribution described in this clause (d) is
declared but not so paid or made, the new Conversion Rate shall be readjusted
to the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.


 


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


 


57

















 


the Conversion
Rate in effect immediately prior to the adjustment on account of such event and
the denominator of which will equal the Conversion Rate as adjusted.


 


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


 


CR1
= CR0 x (AC + (SP1 x OS1))/(SP1 x
OS0)


 


where


 


CR0 = the
Conversion Rate in effect immediately prior to the adjustment relating to such
event


 


CR1 = the new
Conversion Rate taking such event into account


 


AC
= the aggregate value of all cash and any other consideration (as determined by
the Board of Directors of the Issuer) 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


 


OS1
= the number of shares of Common Stock outstanding immediately after such
tender or exchange offer expires (after giving effect to the purchase or exchange
of shares pursuant to such tender or exchange offer)


 


SP1
= the average of the Closing Sale Prices of the Common Stock for the 10
consecutive Trading Days commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.


 


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


 


Any adjustment
to the Conversion Rate made pursuant to this clause (e) shall become effective
on the date immediately following the determination of the average of the
Closing Sale Prices of the Common Stock for purposes of SP1
above. If the Issuer or one of its subsidiaries is obligated to purchase shares
of Common Stock pursuant to any such tender or exchange offer but is
permanently prevented by applicable law from effecting any such purchase or all
such purchases are rescinded or otherwise not consummated, the new Conversion
Rate shall be readjusted to be the Conversion Rate that would be in effect if
such tender or exchange offer had not been made.


 


(f)                                    In
addition to the adjustments pursuant to clauses (a) through (e) above, the
Issuer may increase the Conversion Rate in order to avoid or diminish any
income tax to holders of shares of Common Stock resulting from any distribution
of equity interests (or rights to acquire shares of Common Stock) or from any
event treated as such for income tax purposes. The Issuer may also, from time
to time, to the extent permitted by applicable law, increase the Conversion Rate
by any amount for any period if the Issuer has determined that such increase


 


58

















 


would be in
the best interests of the Issuer. If the Issuer makes such determination, it
will be conclusive and the Issuer will mail to holders of the Notes a notice of
the increased Conversion Rate and the period during which it will be in effect
at least fifteen (15) days prior to the date the increased Conversion Rate
takes effect in accordance with applicable law.


 


(g)                                 If,
in connection with any adjustment to the Conversion Rate as set forth in this
Section 13.05 a holder shall be deemed for U.S. federal tax purposes to have
received a distribution, the Issuer may set off any withholding tax it
reasonably believes it is required to collect with respect to any such deemed
distribution against cash payments of interest in accordance with the
provisions of Section 4.01 hereof or from cash and shares of Common Stock, if
any, otherwise deliverable to a holder upon a conversion of Notes in accordance
with the provisions of Section 13.12 hereof or a redemption or repurchase of a
Note in accordance with the provisions of Article 3 hereof.


 


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


 


(i)                                     Notwithstanding
anything to the contrary contained herein, in addition to the other events set
forth herein on account of which no adjustment to the Conversion Rate shall be
made, the applicable Conversion Rate shall not be adjusted for: (i) the
issuance of any shares of Common Stock pursuant to any present or future plan
providing for the reinvestment of distributions or interest payable on
securities of the Issuer and the investment of additional optional amounts in
shares of Common Stock under any plan; (ii) 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, employee
agreement or arrangement or program of the Issuer; (iii) the issuance of any
shares of Common Stock pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security outstanding as of the date the Notes were
first issued; (iv) accumulated and unpaid dividends or distributions; (v) if
applicable, a change in the par value of the Common Stock; (vi) the issuance of
shares of Common Stock pursuant to an underwritten offering (whether pursuant
to a registration statement which has become effective under the Securities Act
or pursuant to an applicable exemption therefrom); and (vii) as a result of a
tender offer solely to holders of fewer than 100 shares of Common Stock.


 


(j)                                     No
adjustment in the Conversion Rate will be required unless the adjustment would
require an increase or decrease of at least 1% of the Conversion Rate. If the
adjustment is not made because the adjustment does not change the Conversion
Rate by at least 1%, then the adjustment that is not made will be carried
forward and taken into account in any future adjustment. All required
calculations will be made to the nearest cent or 1/1,000th of a
share, as the case may be. Notwithstanding the foregoing, all adjustments not
previously made will have effect with respect to any conversion of Notes on or
after August 15, 2012 or under the circumstances permitted by Section
13.01(a)(iii) or (iv).


 


(k)                                  Whenever
the Conversion Rate is adjusted as herein provided, the Issuer shall promptly
file with the Trustee and any Conversion Agent other than the Trustee, an
Officers’ Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment. Unless
and until a Responsible Officer of


 


59

















 


the Trustee
shall have received such Officers’ Certificate, the Trustee shall not be deemed
to have knowledge of any adjustment of the Conversion Rate and may assume that
the last Conversion Rate of which it has knowledge is still in effect. Promptly
after delivery of such certificate, the Issuer shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate
and the date on which each adjustment becomes effective and shall mail such
notice of such adjustment of the Conversion Rate to the holders of the Notes
within 20 Business Days of the effective date of such adjustment. Failure to
deliver such notice shall not affect the legality or validity of any such
adjustment.


 


(l)                                     For
purposes of this Section 13.05, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Issuer
but shall include shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock.


 


(m)                               Notwithstanding
anything in this Section 13.05 to the contrary, in no event shall the
Conversion Rate be adjusted so that the Conversion Price would be less than
$0.01.


 


Section 13.06                          Change in Conversion Right Upon Certain
Reclassifications, Business Combinations and Asset Sales.


 


(a)                                  If
the Issuer is a party to a consolidation, merger or binding share exchange
(including, without limitation, by way of a recapitalization, reclassification
or change of Common Stock (other than changes resulting from a subdivision or
combination) or a sale, lease or transfer to a third party of the Issuer’s and
all of the Issuer’s subsidiaries’ consolidated assets substantially as an
entirety) pursuant to which all of the shares of Common Stock are converted
into cash, securities or other property, then the Issuer, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such consolidation, merger or binding share exchange or sale, lease or transfer,
execute and deliver to the Trustee a supplemental indenture providing that from
and after the effective time of the transaction any conversion of Notes and the
determination of the sum of the Daily Settlement Amounts will be based on, and
determined by reference to, the kind and amount of cash, securities or other
property that holders of the shares of Common Stock receive in the transaction
in respect of each share of Common Stock.


 


(b)                                 In
the event the Issuer shall execute a supplemental indenture pursuant to this
Section 13.06, the Issuer shall promptly file with the Trustee an Opinion of
Counsel stating that such supplemental indenture is authorized or permitted by
this Indenture and an Officers’ Certificate briefly stating the reasons
therefor, the kind or amount of cash, securities or other property receivable
by holders of the Notes upon the conversion of their Notes after any such
reclassification, change, consolidation, merger, binding share exchange, sale,
transfer, lease or conveyance, any adjustment to be made with respect thereto
and that all conditions precedent have been complied with.


 


(c)                                  For
purposes of this Section 13.06, where a consolidation, merger or binding share
exchange involves a transaction that causes Common Stock to be converted into
the right to receive more than a single type of consideration based upon any
form of shareholder election, such consideration will be deemed to be the
weighted average of the types and amounts


 


60

















 


of consideration
received by the holders of shares of Common Stock that affirmatively make such
an election.


 


(d)                                 If
this Section 13.06 applies to any event or occurrence, Section 13.05 shall not
apply. The provisions of this Section 13.06 shall similarly apply to successive
reclassifications, changes, consolidations, mergers, sales, transfers, leases,
conveyances or other dispositions.


 


Section 13.07                          Taxes on Shares Issued. The issue of
stock certificates, if any, on conversion of Notes shall be made without charge
to the converting Noteholder for any documentary, stamp or similar issue or
transfer tax in respect of the issue thereof. The Issuer shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of any Note converted, and the Issuer shall not be required to issue or
deliver any such stock certificate unless and until the Person or Persons
requesting the issue thereof shall have paid to the Issuer the amount of such
tax or shall have established to the satisfaction of the Issuer that such tax
has been paid.


 


Section 13.08                          Reservation of Shares, Shares to be Fully Paid;
Compliance with Governmental Requirements. The Issuer 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
the conversion of the Notes as required by this Indenture from time to time as
such Notes are presented for conversion.


 


Before taking
any action which would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par
value, if any, of the Common Stock issuable, if any, upon conversion of the
Notes, the Issuer will take all corporate action which may, in the opinion of
its counsel, be necessary in order that the Issuer may validly and legally
issue shares of Common Stock at such adjusted Conversion Rate.


 


The Issuer
covenants that all shares of Common Stock, if any, which may be issued upon
conversion of Notes will upon issue be fully paid and non-assessable and free
from all taxes, liens and charges with respect to the issue thereof.


 


Section 13.09                          Responsibility of Trustee. The Trustee
and any other Conversion Agent shall not at any time be under any duty or
responsibility to any holder of Notes to determine the Conversion Rate or
whether any facts exist which may require any adjustment 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 Common Stock, or of any
capital stock, other securities or other assets or property, which 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 Issuer 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


 


61

















 


covenants of
the Issuer contained in this Article 13. 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 13.06 relating either
to the kind or amount of shares of capital stock or other securities or other
assets or property (including cash) receivable by Noteholders upon the
conversion of their Notes after any event referred to in such Section 13.06 or
to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 7.01, may accept as conclusive evidence of the
correctness of any such provisions, and shall be protected in relying upon, the
Officers’ Certificate (which the Issuer shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto. The Trustee shall not at any time be under any duty or responsibility
to any holder of Notes to determine the accuracy of the method employed in
calculating the Trading Price or whether any facts exist which may require any
adjustment of the Trading Price.


 


Section 13.10                          Notice to Holders Prior to Certain Actions.
In case:


 


(a)                                  the
Issuer shall declare a dividend (or any other distribution) on its Common Stock
that would require an adjustment in the Conversion Rate pursuant to Section
13.05; or


 


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


 


(c)                                  of
any reclassification or reorganization of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock, or a
change in par value, or from par value to no par value, or from no par value to
par value), or of any consolidation, combination, merger or share exchange to
which the Issuer is a party and for which approval of any stockholders of the
Issuer is required, or of the sale or transfer of all or substantially all of
the assets of the Issuer; or


 


(d)                                 of
the voluntary or involuntary dissolution, liquidation or winding up of the
Issuer;


 


the Issuer
shall cause to be filed with the Trustee and to be mailed to each holder of
Notes at its address appearing on the Note Register provided for in Section
2.05 of this Indenture, as promptly as possible but in any event at least ten
(10) calendar days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of shares of Common Stock of record to
be entitled to such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of
shares of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,


 


62

















 


shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up.


 


Section 13.11                          Stockholder Rights Plans. If the
Issuer has in effect a rights plan while any Notes remain outstanding, holders
of Notes will receive, upon a conversion of Notes in respect of which the
Issuer is required to deliver shares of Common Stock, in addition to such
shares of Common Stock, rights under the Issuer’s stockholder rights agreement
unless, prior to conversion, the rights have expired, terminated or been
redeemed or unless the rights have separated from the Common Stock. If the
rights provided for in the rights plan adopted by the Issuer have separated
from the Common Stock in accordance with the provisions of the applicable
stockholder rights agreement so that holders of Notes would not be entitled to
receive any rights in respect of Common Stock, if any, that the Issuer is
required to deliver upon conversion of Notes, the Conversion Rate will be
adjusted at the time of separation as if the Issuer had distributed to all
holders of shares of Common Stock capital shares, evidences of indebtedness or
other assets or property pursuant to Section 13.05(c) above, subject to
readjustment upon the subsequent expiration, termination or redemption of the
rights.


 


Section 13.12                          Settlement Upon Conversion.


 


(a)                                  Upon
a conversion of Notes, the Issuer shall deliver to converting holders of Notes,
in respect of each $1,000 principal amount of Notes being converted, either
solely cash, solely shares of Common Stock or a combination of cash and shares
of Common Stock (the “Settlement Amount”),
provided, however, that at any time on or prior to August 15, 2012, the Issuer
may irrevocably elect, in its sole discretion without the consent of the
holders of the Notes, to settle all of its future conversion obligations
through the Net Share Settlement.


 


(i)                                     All
conversions after August 15, 2012 will be settled using the same Settlement
Method. If the Issuer has not delivered a notice of its election of a
Settlement Method (the “Settlement Notice”)
prior to August 15, 2012, the Settlement Method for conversions after August
15, 2012 shall be Net Share Settlement.


 


(ii)                                  Prior
to August 15, 2012, the Issuer will use the same Settlement Method for all
conversions occurring on any given Trading Day. Except for any conversions that
occur either (1) during the period between a notice of redemption and the
related Redemption Date, (2) on or after August 15, 2012 or (3) following
delivery by the Issuer of a Settlement Notice electing Net Share Settlement,
the Issuer need not use the same Settlement Method with respect to conversions that
occur on different Trading Days.


 


(iii)                               If
the Issuer elects to deliver a Settlement Notice, the Issuer, through the
Trustee, shall deliver to the Settlement Notice to Holders that are converting
no later than the second Trading Day immediately following the related
Conversion Date.


 


(b)                                 The
Settlement Amount shall be computed as follows:


 


63
















 


 


(i)            If the Issuer
elects to satisfy its conversion obligation solely in shares of Common Stock,
the Issuer will deliver a number of shares of Common Stock equal to (1) the
aggregate principal amount of Notes to be converted divided by $1,000,
multiplied by (2) the applicable Conversion Rate;


 


(ii)           If the Issuer
elects to satisfy its conversion obligation solely in cash, the Issuer shall
deliver cash in an amount equal to the sum of the Daily Conversion Values for
each of the 20 Trading Days during the related Observation Period; and


 


(iii)          If the Issuer
elects to satisfy its conversion obligation through delivery of a combination
of cash and shares of Common Stock, the Issuer shall deliver 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 Trading Days during
the Observation Period for such Note. The “Daily
Settlement Amount” for each of the 20 Trading Days during the
Observation Period shall consist of:


 


(A)    cash equal to the lesser of
(x) the dollar amount per Note specified in the Settlement Notice, if any (the “Specified Dollar Amount”), divided by 20
(such quotient being referred to as the “Daily
Measurement Value”) and (y) the Daily Conversion Value; and


 


(B)    to the extent the Daily
Conversion Value exceeds the Daily Measurement Value, a number of shares of
Common Stock (“Daily Share Amount”)
equal to (x) the difference between the Daily Conversion Value and the Daily
Measurement Value, divided by (y) the Daily VWAP;


 


“Net Share Settlement” means the Settlement
Method in which the Specified Dollar Amount is $1,000.


 


“Daily Conversion Value” means, for each of
the 20 consecutive Trading Days during the Observation Period, one-twentieth of
the product of (i) the applicable Conversion Rate and (ii) the Daily VWAP of
the Common Stock on such day.


 


“Daily VWAP” means, for each of the 20
consecutive Trading Days during the Observation Period, the per share
volume-weighted average price as displayed under the heading “Bloomberg VWAP”
on Bloomberg page “SFI <equity> AQR” (or any successor thereto) in
respect of the period from the scheduled open of the primary exchange or market
on which the Common Stock is listed or traded to the scheduled close of such
exchange or market on such Trading Day (or if such volume-weighted average
price is unavailable, the market value per share of 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
Issuer).


 


64

















 


“Observation period” with respect to any
note means the 20 consecutive Trading Day period beginning on and including the
fourth Trading Day after the related Conversion Date, except that (i) with
respect to any Conversion Date occurring after the date of issuance of a notice
of redemption pursuant to Section 3.02, the “Observation Period” means the 20
consecutive Trading Days beginning on and including the 22nd Trading
Day prior to the applicable Redemption Date and (ii) with respect to any
Conversion Date occurring during the period beginning on August 15, 2012, and
ending at 5:00 p.m., New York City time, on the Trading Day immediately prior
to the Stated Maturity, “Observation Period” means the first 20 Trading Days
beginning on and including the 22nd Trading Day prior to the Stated
Maturity.


 


For the
purposes of determining payment upon conversion in accordance with the
provisions of this Section 13.12 only, “Trading
Day” means a day on which (i) there is no Market Disruption Event
and (ii) trading in securities generally occurs on the New York Stock Exchange
or, if the Common Stock is not then listed on the New York Stock Exchange, on
the principal other United States national or regional securities exchange on
which the Common Stock is then listed or, if the Common Stock is not then
listed on a United States national or regional securities exchange, in the
principal other market on which the Common Stock is then traded. If the Common
Stock (or other security for which a Daily VWAP must be determined) is not so
listed or quoted, “Trading Day” means a “Business Day.”


 


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


 


(c)           The Issuer shall deliver the sum of
the Daily Settlement Amounts for each of the 20 Trading Days during the
Observation Period to converting holders on the third Business Day immediately
following the last day of the Observation Period.


 


Section 13.13         Conversion
Rate Adjustment After Certain Fundamental Change Transactions


 


(a)           If the Effective Date of a
transaction described in clauses (1) or (2) of the definition of Change in
Control occurs prior to the Stated Maturity and a holder elects to convert its
Notes in connection with such Change in Control pursuant to Section
13.01(a)(iv) hereof, the Issuer shall increase the applicable Conversion Rate
for such Notes surrendered for conversion by a number of additional shares of
Common Stock (the “Additional Shares”)
as specified below. A conversion of Notes will be deemed for these purposes to
be “in connection with” such a Change in Control if the Conversion Notice is
received by the Conversion Agent on any date from and including the date that
is the Effective Date of such Change in Control up to and including the earlier
of the 30th Business Day following the Effective Date of such Change
in Control and the Business Day preceding the Stated Maturity.


 


(b)           The number of Additional Shares will
be determined by reference to the table in Section 13.13(e) and is based on the
date on which the Change in Control becomes


 


65

















 


effective (the
“Effective Date”) and the price
paid per share of Common Stock in the Change in Control transaction (the “Share Price”). If holders of shares of Common
Stock receive only cash in the Change in Control transaction, the Share Price
shall equal the cash amount paid per share of Common Stock in such transaction.
In all other cases, the Share Price shall equal the average of the Closing Sale
Prices of the Common Stock on the ten (10) consecutive Trading Days up to but
excluding the Effective Date.


 


(c)           The Share Prices set forth in the
first row of the table set forth in Section 13.13(e) (i.e., the column headers)
shall be adjusted as of any date on which the Conversion Rate of the Notes is
adjusted pursuant to Section 13.05. The adjusted Share Prices shall equal the
Share Prices applicable immediately prior to such adjustment multiplied by a
fraction, (i) the numerator of which shall be the Conversion Rate immediately
prior to the adjustment giving rise to the Share Price adjustment and (ii) the
denominator of which shall be the Conversion Rate as so adjusted.


 


(d)           The number of Additional Shares shall
be adjusted in the same manner and for the same events as the Conversion Rate
is adjusted pursuant to Section 13.05.


 


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


 


	
  Effective Date

  	
   

  	
  Stock Price

  	
   

  
	
   

  	
  $34.65

  	
   

  	
  $38.00

  	
   

  	
  $41.00

  	
   

  	
  $44.00

  	
   

  	
  $47.00

  	
   

  	
  $50.00

  	
   

  	
  $55.00

  	
   

  	
  $60.00

  	
   

  	
  $70.00

  	
   

  	
  $80.00

  	
   

  	
  $90.00

  	
   

  	
  $100.00

  	
   

  
	
  October
  15, 2007

  	
   

  	
  6.6600

  	
   

  	
  5.0852

  	
   

  	
  3.9904

  	
   

  	
  3.1403

  	
   

  	
  2.4771

  	
   

  	
  1.9579

  	
   

  	
  1.3285

  	
   

  	
  0.9075

  	
   

  	
  0.4415

  	
   

  	
  0.2453

  	
   

  	
  0.1692

  	
   

  	
  0.1391

  	
   

  
	
  October
  1, 2008

  	
   

  	
  6.6600

  	
   

  	
  5.0943

  	
   

  	
  3.9394

  	
   

  	
  3.0429

  	
   

  	
  2.3449

  	
   

  	
  1.8004

  	
   

  	
  1.1448

  	
   

  	
  0.7114

  	
   

  	
  0.2436

  	
   

  	
  0.0586

  	
   

  	
  0.0063

  	
   

  	
  0.0022

  	
   

  
	
  October
  1, 2009

  	
   

  	
  6.6600

  	
   

  	
  5.2228

  	
   

  	
  4.0147

  	
   

  	
  3.0782

  	
   

  	
  2.3515

  	
   

  	
  1.7875

  	
   

  	
  1.1147

  	
   

  	
  0.6765

  	
   

  	
  0.2164

  	
   

  	
  0.0444

  	
   

  	
  0.0039

  	
   

  	
  0.0017

  	
   

  
	
  October
  1, 2010

  	
   

  	
  6.6600

  	
   

  	
  5.1935

  	
   

  	
  3.9264

  	
   

  	
  2.9517

  	
   

  	
  2.2039

  	
   

  	
  1.6323

  	
   

  	
  0.9669

  	
   

  	
  0.5504

  	
   

  	
  0.1434

  	
   

  	
  0.0172

  	
   

  	
  0.0015

  	
   

  	
  0.0012

  	
   

  
	
  October
  1, 2011

  	
   

  	
  6.6600

  	
   

  	
  4.8731

  	
   

  	
  3.5141

  	
   

  	
  2.4927

  	
   

  	
  1.7364

  	
   

  	
  1.1851

  	
   

  	
  0.5926

  	
   

  	
  0.2672

  	
   

  	
  0.0234

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  
	
  October
  1, 2012

  	
   

  	
  6.6600

  	
   

  	
  4.1158

  	
   

  	
  2.1902

  	
   

  	
  0.5273

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


(f)            If the exact Share Price and
Effective Date are not set forth in the table above, then:


 


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


 


(ii)           If the Share Price
is equal to or in excess of $100.00 per share of Common Stock (subject to
adjustment as specified in Section 13.13(c)), no Additional Shares will be
issued upon a conversion of Notes; and


 


(iii)          If the Share Price
is less than $34.65 per share of Common Stock (subject to adjustment as
specified in Section 13.13(c)), no Additional Shares will be issued upon a
conversion of Notes.


 


(g)           Notwithstanding the provisions of
this Section 13.13, in no event shall the total number of shares of Common
Stock issuable upon conversion of the Notes exceed 28.8600


 


66

















 


shares per
$1,000 principal amount of Notes, subject to adjustment in the same manner as
the Conversion Rate is subject to adjustment as set forth in Section 13.05.


 


Section 13.14         Ownership Limit; Withholding Tax


 


(a)           Notwithstanding any other provision
of this Indenture or the Notes, no holder of Notes shall be entitled to convert
such Notes for shares of Common Stock to the extent that the receipt of such
shares of Common Stock would violate any of the limitations on ownership of
shares of Common Stock contained in the Charter, unless such Person had been
exempted from such limits in the Board of Director’s sole discretion in
accordance with the Charter. Any attempted conversion of Notes that would
result in the issuance of shares of Common Stock in excess of such ownership
limit in the absence of such an exemption shall be void to the extent of the
number of shares of Common Stock that would cause such violation and the
related Note or portion thereof shall be returned to the holder as promptly as
practicable. The Issuer shall have no further obligation to the holder with
respect to such voided conversion and such Notes shall be treated as if they
not been submitted for conversion. A holder of returned Notes may resubmit such
Notes for conversion at a later date subject to compliance with the terms
hereof and the ownership limits set forth in the Charter. The Issuer may however
(but will not be required to), in a case where a holder of Notes attempts to
convert Notes but is prevented from doing so as a result of the ownership
limit, pay cash to such holder upon such conversion as provided in Section
13.12(d). The foregoing limitation on the right of holders of Notes to receive
shares of Common Stock upon conversion of Notes shall terminate if the
restrictions on ownership and transfer of the shares of Common Stock set forth
in the Charter shall terminate or if the Board of Directors of the Issuer shall
revoke or otherwise terminate the election by the Issuer to qualify as a REIT
pursuant to 856(a) (or any successor thereto) of the Code.


 


(b)           At the Stated Maturity or upon
earlier redemption or repurchase of the Notes or otherwise, and as otherwise
required by law, the Issuer may deduct and withhold from the amount of
consideration otherwise deliverable to the holder the amount required to be
deducted and withheld under applicable law.


 


Section 13.15         Calculation In Respect of Notes. Except
as otherwise specifically stated herein or in the Notes, all calculations to be
made in respect of the Notes shall be the obligation of the Issuer. All
calculations made by the Issuer or its agent as contemplated pursuant to the
terms hereof and of the Notes shall be made in good faith and be final and
binding on the Notes and the holders of the Notes absent manifest error. The
Issuer shall provide a schedule of calculations to the Trustee, and the Trustee
shall be entitled to rely upon the accuracy of the calculations by the Issuer
without independent verification. The Trustee shall forward calculations made
by the Issuer to any holder of Notes upon request.


 


67

















 


ARTICLE 14


 


RESERVED


 


ARTICLE 15


 


MISCELLANEOUS PROVISIONS


 


Section 15.01         Provisions Binding on Issuer’s Successors.
All the covenants, stipulations, promises and agreements by the Issuer
contained in this Indenture shall bind their respective successors and assigns
whether so expressed or not.


 


Section 15.02         Official Acts by Successor Corporation.
Any act or proceeding by any provision of this Indenture authorized or required
to be done or performed by any board, committee or officer of the Issuer shall
and may be done and performed with like force and effect by the like board,
committee or officer of any Person that shall at the time be the lawful sole
successor of the Issuer.


 


Section 15.03         Addresses for Notices, etc. Any notice
or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of Notes on the Issuer
shall be in writing and shall be deemed to have been sufficiently given or
made, for all purposes, if given or served by being deposited postage prepaid
by registered or certified mail in a post office letter box, or sent by
overnight courier, or sent by telecopier transmission addressed as follows:


 


iStar
Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY 10036

Facsimile:  (212) 930-9494

Attention:  Chief Executive Officer


 


With a copy
to:


 


Clifford
Chance US LLP

31 West 52nd Street

New York, NY 10019

Facsimile:  (212) 878-8375


 


Attention:  Kathleen L. Werner,
Esq.


 


Any notice,
direction, request or demand hereunder to or upon the Trustee shall be deemed
to have been sufficiently given or made, for all purposes, if given or served
by being deposited, postage prepaid, by registered or certified mail in a post
office letter box, or sent by overnight courier, or sent by telecopier
transmission addressed as follows: US Bank Trust National


 


68

















 


Association,
100 Wall Street, 16th floor, Suite 1600, New York, New York 10005,
Attention:  Corporate Trust Department.


 


The Trustee,
by notice to the Issuer, may designate additional or different addresses for
subsequent notices or communications.


 


Any notice or
communication mailed to a Noteholder shall be mailed by first class mail,
postage prepaid, at such Noteholder’s address as it appears on the Note
Register and shall be sufficiently given to such Noteholder if so mailed within
the time prescribed.


 


Failure to
mail a notice or communication to a Noteholder or any defect in it shall not
affect its sufficiency with respect to other Noteholders. If a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.


 


Section 15.04         Governing Law. This Indenture and the
Notes shall be governed by, and construed in accordance with, the laws of the
State of New York.


 


Section 15.05         Evidence of Compliance with Conditions Precedent,
Certificates to Trustee. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, and an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.


 


Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant provided for in
this Indenture shall include: (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and (4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with; provided, however,
that with respect to matters of fact an Opinion of Counsel may rely on an
Officers’ Certificate or certificates of public officials.


 


Section 15.06         Legal Holidays. If any specified date
(including a date for giving notice) on which action is to be taken under this
Indenture is a Legal Holiday, the action shall be taken on the next succeeding
day that is not a Legal Holiday and, if the action to be taken on such date is
a payment in respect of the Notes, no interest shall accrue for the intervening
period.


 


Section 15.07         Trust Indenture Act. This Indenture is
hereby made subject to, and shall be governed by, the provisions of the Trust
Indenture Act required to be part of and to govern indentures qualified under
the Trust Indenture Act; provided
that this Section 15.07 shall not require this Indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act, nor shall it
constitute any admission or acknowledgment by any party to the Indenture that
any such qualification is required prior to the time such qualification is in
fact required under the terms of


 


69

















 


the Trust
Indenture Act. If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in an indenture
qualified under the Trust Indenture Act, such required provision shall control.


 


Section 15.08         No Security Interest Created. Nothing
in this 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 in
which property of the Issuer or its subsidiaries is located.


 


Section 15.09         Benefits of Indenture. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto, any Paying Agent, any authenticating agent, any Note
Registrar and their successors hereunder and the holders of Notes any benefit
or any legal or equitable right, remedy or claim under this Indenture.


 


Section 15.10         Table of Contents, Headings, etc. The
table of contents and the titles and headings of the Articles and Sections of
this 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 15.11         Authenticating Agent. The Trustee may
appoint an authenticating agent that shall be authorized to act on its behalf,
and subject to its direction, in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03 and
3.05, as fully to all intents and purposes as though the authenticating agent
had been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be
deemed to be authentication and delivery of such Notes “by the Trustee” and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or in
the Notes for the Trustee’s certificate of authentication. Such authenticating
agent shall at all times be a Person eligible to serve as trustee hereunder
pursuant to Section 7.09.


 


Any
corporation into which any authenticating agent may be merged or exchanged or
with which it may be consolidated, or any corporation resulting from any
merger, consolidation or exchange to which any authenticating agent shall be a
party, or any corporation succeeding to the corporate trust business of any
authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 15.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.


 


Any
authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Issuer. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Issuer. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall either promptly appoint a successor authenticating agent or itself assume
the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment 


 


70

















 


of a successor
authenticating agent, if made, shall give written notice of such appointment of
a successor authenticating agent to the Issuer and shall mail notice of such
appointment of a successor authenticating agent to all holders of Notes as the
names and addresses of such holders appear on the Note Register.


 


The Issuer
agrees to pay to the authenticating agent from time to time such reasonable
compensation for its services as shall be agreed upon in writing between the
Issuer and the authenticating agent.


 


The provisions
of Sections 7.02, 7.03, 7.04 and 8.03 and this Section 15.11 shall be applicable
to any authenticating agent.


 


Section 15.12         Execution in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original, but such counterparts shall together constitute but one and the
same instrument.


 


Section 15.13         Severability. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, then
(to the extent permitted by law) the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.


 


Section 15.14         Conflicts with Original Indenture. If
any provision of this Indenture is inconsistent with any provision of the
Original Indenture, the provision of this Indenture will control with regard to
the Notes.


 


US Bank Trust
National Association hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions herein above set forth.


 


71

















 


IN WITNESS
WHEREOF, the parties hereto have caused this Indenture to be duly executed.


 


	
   

  	
  ISTAR
  FINANCIAL INC., as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay S.
  Sugarman

  	
   

  
	
   

  	
   

  	
  Name: Jay S.
  Sugarman

  
	
   

  	
   

  	
  Title:
  Chairman & CEO

  
	
   

  	
   

  
	
   

  	
  US BANK
  TRUST NATIONAL ASSOCIATION, as

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gagendra
  Hiralal

  	
   

  
	
   

  	
   

  	
  Name: Gagendra
  Hiralal

  
	
   

  	
   

  	
  Title: Trust
  Officer

  



 
















 


Exhibit A


 


UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE “DEPOSITARY,” WHICH
TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY
PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.


 


A-1

















 


iSTAR FINANCIAL INC.

CONVERTIBLE SENIOR FLOATING RATE NOTES DUE 2012


 


CUSIP:  45031UBF7


 


No. $800,000,000


 


iStar
Financial Inc., a corporation organized under the laws of Maryland (herein called
the “Issuer,” which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay
to                 or
its registered assigns, the principal sum of EIGHT HUNDRED MILLION DOLLARS [or
such other principal amount as shall be set forth on Schedule I hereto](1)
on October 1, 2012 at the office or agency of the Issuer maintained for
that purpose in accordance with the terms of the Indenture, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
quarterly in arrears, on January 1, April 1, July 1 and
October 1 of each year (each, an “Interest Payment Date”), commencing
January 1, 2008, on said principal sum at said office or agency, in like
coin or currency, at the rate per annum, reset quarterly, of equal to
three-month LIBOR (as defined herein), plus 0.5%, to be determined by the
Calculation Agent, from and including the most recent Interest Payment Date in
respect of which interest has been paid (or commencing October 15, 2007 if
no interest has been paid hereon). Interest will be computed on the basis of a
360-day year using the actual number of days elapsed from and including an
Interest Payment Date to but excluding the next succeeding Interest Payment
Date.


 


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 in the manner specified in the Indenture. Such
further provisions shall for all purposes have the same effect as though fully
set forth at this place.


 


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


 






(1)     For
Global Notes only.


 


A-2

















 


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


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  iSTAR
  FINANCIAL INC.

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title: 

  
	
   

  	
   

  
	
   

  	
   

  
	
  ATTEST:

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title: 

  	
   

  
								



 


A-3

















 


TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This is one of the Notes described in the within-named Indenture.


 


US BANK TRUST
NATIONAL ASSOCIATION, as Trustee


 


 


	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
						



 


A-4

















 


FORM OF REVERSE OF NOTE


 


iSTAR FINANCIAL INC.

CONVERTIBLE SENIOR FLOATING RATE NOTES DUE 2012


 


This note is
one of a duly authorized issue of notes of the Issuer, designated as its “Convertible
Senior Floating Rate Notes due 2012” (herein called the “Notes”), issued under
and pursuant to an Indenture dated as of February 5, 2001, as amended and
supplemented, including as supplemented by a Supplemental Indenture dated as of
October 15, 2007 (collectively, the “Indenture”), between the Issuer and US
Bank Trust National Association, as trustee (herein called 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 Issuer and the holders of
the Notes. Capitalized terms used but not otherwise defined in this Note shall
have the respective meanings ascribed thereto in the Indenture.


 


Interest on
the Notes shall accrue at the rate per year, reset quarterly (the “interest
period” and the first date in such period, the “interest reset date”), equal to
three-month LIBOR plus 0.50%, to be determined by the Calculation Agent. The
interest rate on the Notes applicable to each interest period commencing on the
related interest reset date, or the original issue date in the case of the
initial interest period, will be the rate determined as of the applicable
interest determination date. The “interest determination date” will be the
second London business day immediately preceding the original issue date, in
the case of the initial interest period, or thereafter the applicable interest
reset date. US Bank Trust National Association, or its successor appointed by
the Issuer, will act as Calculation Agent with respect to the Notes.
Three-month LIBOR will be determined by the Calculation Agent as of the
applicable interest determination date in accordance with the following
provisions:


 


(i)            LIBOR is the rate for
deposits in U.S. dollars for the three-month period which appears on Reuters on
page LIBOR 01 at approximately 11:00 a.m., London time, on the applicable
interest determination date. If no rate appears on Reuters on page LIBOR 01,
LIBOR for such interest determination date will be determined in accordance
with the provisions of paragraph (ii) below.


 


(ii)           With respect to an
interest determination date on which no rate appears on Reuters on page LIBOR
01 at approximately 11:00 a.m., London time, on such interest determination
date, the Calculation Agent shall request the principal London offices of each
of four major reference banks (which may include affiliates of the
Underwriters) in the London interbank market selected by the Calculation Agent
(after consultation with the Issuer) to provide the Calculation Agent with a
quotation of the rate at which deposits of U.S. dollars having a three-month
maturity, commencing on the second London business day immediately following
such interest determination date, are offered by it to prime banks in the
London interbank market as of approximately 11:00 a.m., London time, on such
interest determination date in a principal amount equal to an amount of not
less than U.S. $1,000,000 that is representative for a single transaction in
such market at such time. If at least two such quotations are provided, LIBOR
for such interest determination date will be the arithmetic mean of such
quotations as calculated by the calculation agent. If fewer than two quotations
are provided, LIBOR for such interest 


 


A-5

















 


determination
date will be the arithmetic mean of the rates quoted at approximately 11:00
a.m., New York City time, on such interest determination date by three major
banks (which may include affiliates of the Underwriters) selected by the
Calculation Agent (after consultation with the Issuer) for loans in U.S.
dollars to leading European banks having a three-month maturity commencing on
the second London business day immediately following such interest
determination date and in a principal amount equal to an amount of not less
than U.S. $2,000,000 that is representative for a single transaction in such
market at such time; provided, however, that if the banks selected as aforesaid
by the Calculation Agent are not quoting such rates as mentioned in this
sentence, LIBOR for such interest determination date will be LIBOR determined
with respect to the immediately preceding interest determination date.


 


The
percentages resulting from any calculation of any interest rate for the Notes
will be rounded, if necessary, to the nearest one hundred thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
and all dollar amounts will be rounded to the nearest cent, with one-half cent
being rounded upward.


 


Promptly upon
such determination, the Calculation Agent will notify the Issuer and the
Trustee (if the Calculation Agent is not the Trustee) of the interest rate for
the new interest period. Upon request of a holder of the Notes, the Calculation
Agent will provide to such holder the interest rate in effect on the date of
such request and, if determined, the interest rate for the next interest
period.


 


All
calculations made by the Calculation Agent for the purposes of calculating
interest on the Notes shall be conclusive and binding on the holders and the
Issuer, absent manifest error.


 


The Issuer
shall have the right to redeem the Notes at its option in accordance with the
provisions of Article 3 of the Indenture in order to preserve Issuer’s
qualification, as a REIT. If the Issuer determines it is necessary to redeem
the Notes in order to preserve the qualification of Issuer’s as a REIT, the
Issuer may redeem the Notes for cash, in whole or in part, at a redemption
price equal to 100% of the principal amount of the Notes to be redeemed plus unpaid
interest, if any, accrued thereon to the Redemption Date. In accordance with
the provisions of the Indenture, the Issuer may not otherwise redeem the Notes
at its option prior to the Stated Maturity thereof.


 


Subject to the
terms and conditions set forth in the Indenture, following the occurrence of a
Fundamental Change at any time prior to the Stated Maturity of the Notes, the
Notes shall be subject to repurchase by the Issuer, at the option of the
holder, on the Fundamental Change Purchase Date, at a Fundamental Change
Purchase Price equal to 100% of the principal amount of the Notes to be
repurchased together with accrued and unpaid interest accrued thereon to the
Fundamental Change Purchase Date. To exercise such right, the holder shall be
required to satisfy the conditions to such repurchase set forth in the
Indenture and to deliver to the Paying Agent the Repurchase Notice set forth on
the reverse hereof prior to the close of business on the third Business Day
prior to the Fundamental Change Purchase Date.


 


The Issuer may
not repurchase any Notes if there has occurred and is continuing an Event of
Default with respect to the Notes (other than a default in the payment of the
Fundamental Change Purchase Price for such Notes).


 


A-6

















 


Holders have
the right to withdraw any Repurchase Notice by delivering to the Paying Agent a
written notice of withdrawal at any time prior to the close of business on the
third Business Day prior to the Fundamental Change Purchase Date, all as
provided in the Indenture.


 


Subject to and
in compliance with the provisions of the Indenture, holders of Notes shall have
the right to convert each $1,000 principal amount of Notes at the applicable
Conversion Rate into the consideration specified in the Indenture, upon
surrender of the Note to be converted with the form entitled “Conversion Notice”
on the reverse hereof duly completed and manually signed, to the Issuer at the
office or agency of the Issuer maintained for that purpose in accordance with
the terms of the Indenture, together with any funds required pursuant to the
terms of the Indenture. The Conversion Rate shall initially be 22.2000 shares
of Common Stock per $1,000 principal amount of Notes, subject to adjustment in
the manner set forth in the Indenture.


 


Notes
surrendered for conversion at any time after the close of business on any
applicable Record Date for the payment of interest and on or prior to the
corresponding Interest Payment Date must be accompanied by payment, in
immediately available funds or other funds acceptable to the Issuer, of an
amount equal to the interest otherwise payable on such Interest Payment Date on
the principal amount being converted; provided  that no such payment shall be required (1) if
the Issuer has specified a Redemption Date that is after a Record Date and on
or prior to the corresponding Interest Payment Date, (2) to the extent of any
Special Interest or overdue interest, if any overdue interest exists at the
time of conversion with respect to such Notes, or (3) in respect of any
conversion that occurs after the Record Date for the interest payment due on
October 1, 2012.


 


In the event
the holder surrenders this Note for conversion in connection with a Change in
Control resulting from a transaction described in clause (1) or (2) of the
definition of such term, the Issuer shall increase the applicable Conversion
Rate in accordance with the provisions of Section 13.13 of the Indenture.


 


In the event
that shares of Common Stock are issued upon conversion of Notes, no fractional
shares shall be issued upon such conversion, but an adjustment and payment in
cash will be made, as provided in the Indenture, in respect of any fraction of
a share which would otherwise be issuable upon such conversion.


 


A Note in
respect of which a holder has submitted a Repurchase Notice may be converted
only if such holder validly withdraws such Repurchase Notice in accordance with
the terms of the Indenture.


 


If an Event of
Default (other than an Event of Default specified in Section 6.01(i), 6.01(j)
and 6.01(k) of the Indenture) with respect to the Issuer) shall occur and be
continuing, the principal of, and accrued and unpaid interest on, the Notes may
be declared to be due and payable in the manner specified in the Indenture. If
an Event of Default specified in Section 6.01(i), 6.01(j) or 6.01(k) of the
Indenture shall occur with respect to the Issuer, the principal of, and
interest accrued and unpaid on, the Notes shall be immediately and
automatically due and payable without necessity of further action. Subject to
the provisions of the Indenture, the holders of not less than a majority in
aggregate principal amount of the Notes at the time 


 


A-7

















 


outstanding
may, on behalf of the holders of all of the Notes, waive any past default or
Event of Default, subject to exceptions set forth in the Indenture. Upon any
such waiver, said default shall for all purposes of this Note 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 impair any right consequent
thereon.


 


The Indenture
contains provisions permitting the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding, to execute supplemental indentures to modify
provisions of the Indenture, subject to exceptions permitting the modification
of the Indenture without the consent of any holder of Notes or requiring the
consent of each holder of a Note affected by such modification all as set forth
in Article 9 of the Indenture.


 


The Notes are
issuable in fully registered form, without coupons, in denominations of $1,000
principal amount and any multiple of $1,000 in excess thereof. At the office or
agency of the Issuer referred to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, without payment of any
service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations. Upon
surrender for registration of transfer of any Note to the Note Registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth
in the Indenture, the Issuer shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by the
Indenture. No service charge shall be made to any holder for any registration
of transfer or exchange of Notes, but the Issuer may require payment by the
holder of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Notes.


 


The Issuer,
the Trustee, any Paying Agent, any Conversion Agent and any Note Registrar may
deem the Person in whose name this Note shall be registered upon the Note
Register to be, and may treat it as, the absolute owner of this Note (whether
or not this Note shall be overdue and notwithstanding any notation of ownership
or other writing thereon made by any Person other than the Issuer or any Note
Registrar) for the purpose of receiving payment of or on account of the
principal of, and interest on this Note, for conversion of this Note and for
all other purposes; and neither the Issuer or the Trustee nor any Paying Agent,
Conversion Agent or any Note Registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time being, or upon
its order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
this Note.


 


No recourse
for the payment of the principal of or interest on this Note, or for any claim
based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer in the Indenture or any
supplemental indenture or in any Note, or because of the creation of any
indebtedness represented hereby, shall be had against any incorporator,
stockholder, partner, member, manager, employee, agent, officer, director or
subsidiary, as such, past, present or future, of the Issuer or any of the
Issuer’s Subsidiaries or of 


 


A-8

















 


any successor
thereto, either directly or through the Issuer or any of the Issuer’s
Subsidiaries or of any successor thereto, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that all such liability
is hereby expressly waived and released as a condition of, and as consideration
for, the execution of the Indenture and the issue of this Note.


 


Reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Trustee and the
Holders.


 


In the case of
any conflict between the provisions of this Note and the Indenture, the
provisions of the Indenture shall control. The Indenture and this Note shall be
governed by, and construed in accordance with, the laws of the state of New
York.


 


A-9

















 


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 -

  
	
   

  	
   

  	
   

  	
   

  	
  Custodian

  
	
  TEN-ENT -

  	
   

  	
  as tenant by
  the entireties

  	
   

  	
  (Cust)(Minor)

  
	
  JT-TEN -

  	
   

  	
  as joint
  tenants with right

  	
   

  	
  under
  Uniform Gifts to Minors Act

  
	
   

  	
   

  	
  of
  survivorship and not as

  	
   

  	
   

  
	
   

  	
   

  	
  tenants in
  common

  	
   

  	
   

  	
  (State)

  



 


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


 


A-10

















 


CONVERSION NOTICE


 


TO:         iSTAR FINANCIAL INC.

                US BANK TRUST
NATIONAL ASSOCIATION, as Trustee


 


The
undersigned registered owner of this Note hereby irrevocably exercises the
option to convert this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, into cash and, if applicable, shares of
Common Stock of iStar Financial Inc., as applicable, in accordance with the
terms of the Indenture referred to in this Note, and directs that the shares,
if any, issuable and deliverable upon such conversion, together with any check
in payment for cash, if any, payable upon conversion or for fractional shares
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. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares 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 provide the appropriate information below and
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest accompanies this Note.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  
	
   

  	
  Signature(s)
  must be guaranteed by an “eligible guarantor institution” meeting the
  requirements of the Note Registrar, which requirements include membership or
  participation in the Security Transfer Agent Medallion Program (“STAMP”) or
  such other “signature guarantee program” as may be determined by the Note
  Registrar in addition to, or in substitution for, STAMP, all in accordance
  with the Securities Exchange Act of 1934, as amended.

  
	
   

  
	
   

  	
   

  
	
   

  	
  Signature
  Guarantee

  



 


A-11

















 


Fill in the
registration of shares of Common Stock, if any, if to be issued, and Notes if
to be delivered, and the person to whom cash and payment for fractional shares
is to be made, if to be made, other than to and in the name of the registered
holder:


 


Please print
name and address


 


 


	
   

  	
   

  
	
  (Name)

  
	
   

  
	
   

  
	
   

  	
   

  
	
  (Street
  Address)

  
	
   

  
	
   

  
	
   

  	
   

  
	
  (City, State
  and Zip Code)

  	
   

  
	
   

  
	
   

  
	
  Principal
  amount to be converted

  
	
  (if less
  than all):

  
	
   

  
	
  $

  	
   

  	
   

  
	
   

  
	
  Social
  Security or Other Taxpayer

  
	
  Identification
  Number:

  
	
   

  
	
   

  	
   

  
			



 


NOTICE:  The signature on this Conversion Notice must
correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.


 


A-12

















 


REPURCHASE NOTICE


 


TO:         iSTAR FINANCIAL INC.

                US BANK TRUST
NATIONAL ASSOCIATION


 


The
undersigned registered owner of this Note hereby irrevocably acknowledges
receipt of a notice from iStar Financial Inc. (the “Issuer”) regarding the
right of holders to elect to require the Issuer to repurchase the Notes and
requests and instructs the Issuer to repay the entire principal amount of this
Note, or the portion thereof (which is $1,000 or an integral multiple thereof)
below designated, in cash, in accordance with the terms of the Indenture at the
price of 100% of such entire principal amount or portion thereof specified
below, together with accrued and unpaid interest to the Repurchase Date to the
registered holder hereof. Capitalized terms used herein but not defined shall
have the meanings ascribed to such terms in the Indenture. The Notes shall be
repurchased by the Issuer as of the Repurchase Date pursuant to the terms and
conditions specified in the Indenture.


 


NOTICE:  The above signatures 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.


 


Note
Certificate Number:


 


Principal
amount to be repurchased (if less than all, must be $1,000 or whole multiples
thereof):


 


Social
Security or Other Taxpayer Identification Number:


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
   

  
	
   

  	
  Signature(s)

  
	
   

  
	
   

  	
  Signature(s)
  must be guaranteed by an “eligible guarantor 
  institution” meeting the requirements of the Note Registrar, which
  requirements include membership or participation in the Security  Transfer Agent Medallion Program (“STAMP”)
  or such other  “signature guarantee
  program” as may be determined by the Note Registrar in addition to, or in
  substitution for, STAMP, all in 
  accordance with the Securities Exchange Act of 1934, as amended.

  
	
   

  
	
   

  	
   

  
	
   

  	
  Signature
  Guarantee

  



 


A-13

















 


ASSIGNMENT FORM


 


To assign this Note, fill in
the form below:


 


	
  (I) or
  (we) assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert
  assignee’s legal name)

  
	
   

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

  
			





 


 


 





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


 


and
irrevocably appoint                                                                                                                                             to
transfer this Note on the books of the Issuer. The agent may substitute another
to act for him.


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  	
   

  
	
   

  	
  (Sign
  exactly as your name appears

  
	
   

  	
  on the face
  of this Note)

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  
									



 






*              Participant in a
recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).


 


A-14

















 


Schedule I


 


iSTAR FINANCIAL INC.


CONVERTIBLE SENIOR FLOATING RATE NOTES DUE 2012


 


	
  Date

  	
   

  	
  Principal Amount

  	
   

  	
  Notation Explaining

  Principal Amount

  Recorded

  	
   

  	
  Authorized Signature of

  Trustee or Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-15