Exhibit 4.1


 


 




 





 


iSTAR FINANCIAL INC.


 


4.875% SENIOR NOTES DUE 2009


 












 


INDENTURE


 


Dated as of January 23, 2004


 












 


U.S. BANK TRUST NATIONAL


ASSOCIATION


 


Trustee


 




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture
  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.07

  
	
  (c)

  	
   

  	
  7.06;11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;11.02

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05,11.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  11.01

  



 












N.A. means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01. Definitions

  	
   

  
	
  Section 1.02. Other Definitions

  	
   

  
	
  Section 1.03. Incorporation by
  Reference of Trust Indenture Act

  	
   

  
	
  Section 1.04. Rules of Construction

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
   

  	
   

  
	
  THE
  NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.01. Form and Dating

  	
   

  
	
  Section 2.02. Execution and
  Authentication

  	
   

  
	
  Section 2.03. Registrar and Paying
  Agent

  	
   

  
	
  Section 2.04. Paying Agent to Hold
  Money in Trust

  	
   

  
	
  Section 2.05. Holder Lists

  	
   

  
	
  Section 2.06. Transfer and Exchange

  	
   

  
	
  Section 2.07. Replacement Notes

  	
   

  
	
  Section 2.08. Outstanding Notes

  	
   

  
	
  Section 2.09. Treasury Notes

  	
   

  
	
  Section 2.10. Temporary Notes

  	
   

  
	
  Section 2.11. Cancellation

  	
   

  
	
  Section 2.12. Defaulted Interest

  	
   

  
	
  Section 2.13. Record Date

  	
   

  
	
  Section 2.14. CUSIP Numbers

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  
	
  Section 3.01. Notices to Trustee

  	
   

  
	
  Section 3.02. Selection of Notes to Be
  Redeemed

  	
   

  
	
  Section 3.03. Notice of Redemption

  	
   

  
	
  Section 3.04. Effect of Notice of
  Redemption

  	
   

  
	
  Section 3.05. Deposit of Redemption
  Price

  	
   

  
	
  Section 3.06. Notes Redeemed in Part

  	
   

  
	
  Section 3.07. Optional Redemption

  	
   

  
	
  Section 3.08. Mandatory Redemption

  	
   

  



 


i

















 


	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01. Payment of Notes

  	
   

  
	
  Section 4.02. Maintenance of Office or
  Agency

  	
   

  
	
  Section 4.03. Reports to Holders

  	
   

  
	
  Section 4.04. Compliance Certificate

  	
   

  
	
  Section 4.05. Taxes

  	
   

  
	
  Section 4.06. Stay, Extension and
  Usury Laws

  	
   

  
	
  Section 4.07. Limitation on Restricted
  Payments

  	
   

  
	
  Section 4.08. Limitation on Dividend
  and Other Payment Restrictions Affecting Subsidiaries

  	
   

  
	
  Section 4.09. Limitation on Incurrence
  of Additional Indebtedness

  	
   

  
	
  Section 4.10. Limitation on
  Transactions with Affiliates

  	
   

  
	
  Section 4.11. Limitation on Liens

  	
   

  
	
  Section 4.12. Corporate Existence

  	
   

  
	
  Section 4.13. Offer to Repurchase Upon
  Change of Control

  	
   

  
	
  Section 4.14. Limitation on Preferred
  Stock of Subsidiaries

  	
   

  
	
  Section 4.15.
  Conduct of Business

  	
   

  
	
  Section 4.16. Limitation of Guarantees
  by Subsidiaries

  	
   

  
	
  Section 4.17. Maintenance of Total
  Unencumbered Assets

  	
   

  
	
  Section 4.18. Termination of Certain
  Covenants In Event of Investment Grade Rating

  	
   

  
	
  Section 4.19. Maintenance of
  Properties; Books and Records; Compliance with Law

  	
   

  
	
  Section 4.20. Registration Rights

  	
   

  
	
  Section 4.21. Additional Interest

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section 5.01. Merger, Consolidation,
  or Sale of Assets

  	
   

  
	
  Section 5.02. Successor Corporation
  Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 6.01. Events of Default

  	
   

  
	
  Section 6.02. Acceleration

  	
   

  
	
  Section 6.03. Other Remedies

  	
   

  
	
  Section 6.04. Waiver of Past Defaults

  	
   

  



 


ii

















 


	
  Section 6.05. Control by Majority

  	
   

  
	
  Section 6.06. Limitation on Suits

  	
   

  
	
  Section 6.07. Rights of Holders of
  Notes to Receive Payment

  	
   

  
	
  Section 6.08. Collection Suit by
  Trustee

  	
   

  
	
  Section 6.09. Trustee May File Proofs
  of Claim

  	
   

  
	
  Section 6.10. Priorities

  	
   

  
	
  Section 6.11. Undertaking for Costs

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 7.01. Duties of Trustee

  	
   

  
	
  Section 7.02. Rights of Trustee

  	
   

  
	
  Section 7.03. Individual Rights of
  Trustee

  	
   

  
	
  Section 7.04. Trustee’s Disclaimer

  	
   

  
	
  Section 7.05. Notice of Defaults

  	
   

  
	
  Section 7.06. Reports by Trustee

  	
   

  
	
  Section 7.07. Compensation and
  Indemnity

  	
   

  
	
  Section 7.08. Replacement of Trustee

  	
   

  
	
  Section 7.09. Successor Trustee by
  Merger, etc

  	
   

  
	
  Section 7.10. Eligibility;
  Disqualification

  	
   

  
	
  Section 7.11. Preferential Collection
  of Claims

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 8.01. Option to Effect Legal
  Defeasance or Covenant Defeasance

  	
   

  
	
  Section 8.02. Legal Defeasance and
  Discharge

  	
   

  
	
  Section 8.03. Covenant Defeasance

  	
   

  
	
  Section 8.04. Conditions to Legal or
  Covenant Defeasance

  	
   

  
	
  Section 8.05. Deposited Money and
  Government Securities to be Held in Trust; Other Miscellaneous Provisions

  	
   

  
	
  Section 8.06. Repayment to Company

  	
   

  
	
  Section 8.07. Reinstatement

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  
	
  AMENDMENT,
  SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  
	
  Section 9.01. Without Consent of
  Holders of Notes

  	
   

  
	
  Section 9.02. With Consent of Holders
  of Notes

  	
   

  



 


iii

















 


	
  Section 9.03. Compliance with Trust
  Indenture Act

  	
   

  
	
  Section 9.04. Revocation and Effect of
  Consents

  	
   

  
	
  Section 9.05. Notation on or Exchange
  of Notes

  	
   

  
	
  Section 9.06. Trustee to Sign
  Amendments, etc

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 10.01. Satisfaction and Discharge

  	
   

  
	
  Section 10.02. Application of Trust
  Money

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 11.01. Trust Indenture Act
  Controls

  	
   

  
	
  Section 11.02. Notices

  	
   

  
	
  Section 11.03. Communication by
  Holders of Notes with Other Holders of Notes

  	
   

  
	
  Section 11.04. Certificate and Opinion
  as to Conditions Precedent

  	
   

  
	
  Section 11.05. Statements Required in
  Certificate or Opinion

  	
   

  
	
  Section 11.06. Rules by Trustee and
  Agents

  	
   

  
	
  Section 11.07. No Personal Liability
  of Directors, Officers, Employees and Stockholders

  	
   

  
	
  Section 11.08. Governing Law

  	
   

  
	
  Section 11.09. No Adverse
  Interpretation of Other Agreements

  	
   

  
	
  Section 11.10. Successors

  	
   

  
	
  Section 11.11. Severability

  	
   

  
	
  Section 11.12. Counterpart Originals

  	
   

  
	
  Section 11.13. Table of Contents,
  Headings, etc

  	
   

  



 


	
  EXHIBITS

  
	
   

  
	
  Exhibit A

  	
  FORM OF NOTE

  
	
  Exhibit B

  	
  FORM OF CERTIFICATE OF TRANSFER

  
	
  Exhibit C

  	
  FORM OF CERTIFICATE OF EXCHANGE

  
	
  Exhibit D

  	
  FORM OF CERTIFICATE OF ACQUIRING
  INSTITUTIONAL ACCREDITED INVESTOR

  



 


iv

















 


INDENTURE dated as of January 23, 2004 between iStar Financial
Inc., a Maryland corporation (the “Company”), and U.S. Bank Trust National
Association, as trustee (the “Trustee”).


 


The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:


 


ARTICLE 1



DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.01.  Definitions.


 


“Acquired
Indebtedness” means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case whether or not incurred by such Person in connection
with, or in anticipation or contemplation of, such Person becoming a Subsidiary
of the Company or such acquisition, merger or consolidation.


 


“Additional
Interest” has the meaning given such term in the Registration Rights
Agreement.


 


“Additional
Notes” means additional Notes (other than the Initial Notes) issued
under this Indenture in accordance with Section 2.02 and 4.09.


 


“Affiliate”
means, with respect to any specified Person, any other Person who directly or
indirectly through one or more intermediaries controls, or is controlled by, or
is under common control with, such specified Person.  The term “control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative of the foregoing.


 


“Agent”
means any Registrar, Paying Agent or co-registrar.


 


“Applicable
Procedures” means, with respect to any transfer or exchange of or
for beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer or exchange.


 


“Asset
Acquisition” means: 
(1) an Investment by the Company or any Subsidiary of the Company
in any other Person pursuant to which such Person shall become a Subsidiary of
the Company or any Subsidiary of the Company, or shall be merged with or into
the Company or any Subsidiary of the Company; or (2) the acquisition by
the Company or any Subsidiary of the Company of the assets of any Person (other
than a Subsidiary of the Company) that constitute all


 

















 


or substantially all of the assets of such Person or comprises any
division or line of business of such Person or any other properties or assets
of such Person other than in the ordinary course of business.


 


“Asset
Sale” means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary
course of business), assignment or other transfer for value by the Company or
any Subsidiary of the Company (including any sale and leaseback transaction) to
any Person other than the Company or a Wholly Owned Subsidiary of the Company
of:


 


(1)           any Capital Stock of
any Subsidiary of the Company; or


 


(2)           any of the Company’s or
its Subsidiaries’ other property or assets other than sales of loan-related
assets made in the ordinary course of the Company’s real estate lending
business and other asset sales made in the ordinary course of the Company’s
business.


 


“Bankruptcy
Law” means Title 11, United States Bankruptcy Code of 1978, as
amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.


 


“Board
of Directors” means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.


 


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


 


“Business
Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.


 


“Capitalized
Lease Obligation” means, as to any Person, the obligations of such
Person under a lease that are required to be classified and accounted for as
capital lease obligations under GAAP and, for purposes of this definition, the
amount of such obligations at any date shall be the capitalized amount of such
obligations at such date, determined in accordance with GAAP.


 


“Capital
Stock” means:


 


(1)           with respect to any
Person that is a corporation, any and all shares, interests, participations or
other equivalents (however designated and whether or not voting)


 


2

















 


of corporate stock, including each class of Common Stock and Preferred
Stock of such Person; and


 


(2)           with respect to any
Person that is not a corporation, any and all partnership, membership or other
equity interests of such Person.


 


“Cash
Equivalents” means:


 


(1)           marketable direct
obligations issued by, or unconditionally guaranteed by, the United States
Government or issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one year from the
date of acquisition thereof;


 


(2)           marketable direct
obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the time
of acquisition, having one of the two highest ratings obtainable from either
S&P or Moody’s;


 


(3)           commercial paper
maturing no more than one year from the date of creation thereof and, at the
time of acquisition, having a rating of at least A-1 from S&P or at least
P-1 from Moody’s;


 


(4)           certificates of deposit
or bankers’ acceptances maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any U.S. branch of
a foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $250.0 million;


 


(5)           repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (1) above entered into with any bank meeting the
qualifications specified in clause (4) above; and


 


(6)           investments in money
market funds that invest substantially all their assets in securities of the
types described in clauses (1) through (5) above.


 


“Change
of Control” means the occurrence of one or more of the following
events:


 


(1)           any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company to any
Person or group of related Persons for purposes of Section 13(d) of the
Exchange Act (a “Group”), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture) other than to
the Permitted Holders;


 


3

















 


(2)           the approval by the
holders of Capital Stock of the Company of any plan or proposal for the liquidation
or dissolution of the Company (whether or not otherwise in compliance with the
provisions of this Indenture);


 


(3)           any Person or Group
(other than the Permitted Holders) shall become the owner, directly or
indirectly, beneficially or of record, of shares representing more than 50% of
the aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Company; provided, however, that no Change of
Control shall be deemed to have occurred as a result of the sale or transfer by
the Permitted Holders of shares of Capital Stock of the Company representing
more than 50% of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of the Company to a Person or Group, whether in
one transaction or a series of related transactions, that has an investment
grade senior unsecured credit rating from both of Moody’s and S&P and the
Company’s senior unsecured ratings from Moody’s and S&P are the same or
better immediately following such sale or transfer as before such sale or
transfer; or


 


(4)           the replacement of a
majority of the Board of Directors of the Company over a two-year period from
the directors who constituted the Board of Directors of the Company at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least a majority of the Board of Directors of the Company then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Code”
means the Internal Revenue Code of 1986, as amended, and any successor statute
thereto, as interpreted by the rules and regulations thereunder, in each case
as in effect from time to time.


 


“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” of any Person means any and all shares, interests or other
participations in, and other equivalents (however designated and whether voting
or non-voting) of such Person’s common stock, whether outstanding on the
Measurement Date or issued after the Measurement Date, and includes, without
limitation, all series and classes of such common stock.


 


“Company”
means iStar Financial Inc. and any and all successors thereto that become a
party to this Indenture in accordance with its terms.


 


4

















 


“Consolidated
Adjusted Earnings” with respect to any Person, for any period, means
the Consolidated Net Income, less dividend payments on Preferred Stock, plus
depreciation and amortization (including the Company’s share of joint venture
depreciation and amortization).


 


“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum (without
duplication) of:


 


(1)           Consolidated Net
Income; and


 


(2)           to the extent
Consolidated Net Income has been reduced thereby:


 


(a)           all
income taxes of such Person and its Subsidiaries paid or accrued in accordance
with GAAP for such period (other than income taxes attributable to
extraordinary gains or losses and direct impairment charges or the reversal of
such charges on the Company’s assets);


 


(b)           Consolidated
Interest Expense; and


 


(c)           depreciation
and amortization;


 


all as determined on a consolidated basis for such Person and its
Subsidiaries in accordance with GAAP.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the
ratio of Consolidated EBITDA of such Person during the four full fiscal
quarters (the “Four Quarter Period”) ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the “Transaction
Date”) to Consolidated Fixed Charges of such Person for the Four
Quarter Period.  In addition to and
without limitation of the foregoing, for purposes of this definition,
“Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated
after giving effect on a pro forma basis for the period of such calculation to:


 


(1)           the incurrence or
repayment of any Indebtedness of such Person or any of its Subsidiaries (and
the application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or repayment of
Indebtedness in the ordinary course of business for working capital purposes
pursuant to working capital facilities, occurring during the Four Quarter
Period or at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such incurrence or repayment, as the
case may be (and the application of the proceeds thereof), occurred on the
first day of the Four Quarter Period; and


 


(2)           any asset sales or
other dispositions or any asset originations, asset purchases, Investments and
Asset Acquisitions (including, without limitation, any Asset Acquisition


 


5

















 


giving rise to the need to make such calculation as a result of such
Person or one of its Subsidiaries (including any Person who becomes a
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost reductions
calculated on a basis consistent with Regulation S-X under the Exchange
Act) attributable to the assets which are originated or purchased, the
Investments that are made and the assets that are the subject of the Asset
Acquisition or asset sale or other disposition during the Four Quarter Period)
occurring during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date, as if
such asset sale or other disposition or asset origination, asset purchase, Investment
or Asset Acquisition (including the incurrence, assumption or liability for any
such Acquired Indebtedness) occurred on the first day of the Four Quarter
Period.  If such Person or any of its
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such guaranteed Indebtedness
as if such Person or any Subsidiary of such Person had directly incurred or
otherwise assumed such guaranteed Indebtedness.


 


“Consolidated
Fixed Charges” means, with respect to any Person for any period, the
sum, without duplication, of:


 


(1)           Consolidated Interest
Expense; plus


 


(2)           the amount of all dividend
payments on any series of Preferred Stock of such Person and, to the extent
permitted under this Indenture, its Subsidiaries (other than dividends paid in
Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued
during such period.


 


“Consolidated
Interest Expense” means, with respect to any Person for any period,
the sum of, without duplication:


 


(1)           the aggregate of the
interest expense of such Person and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, including without
limitation:  (a) any amortization
of debt discount; (b) the net costs under Interest Swap Obligations;
(c) all capitalized interest; and (d) the interest portion of any
deferred payment obligation; and


 


(2)           to the extent not
already included in clause (1), the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such
Person and its Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP.


 


“Consolidated
Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Subsidiaries before the
payment of dividends on


 


6

















 


Preferred Stock for such period on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded
therefrom:


 


(1)           after-tax gains and
losses from Asset Sales or abandonments or reserves relating thereto (including
gains and losses from the sale of corporate tenant lease assets);


 


(2)           after-tax items
classified as extraordinary gains or losses and direct impairment charges or
the reversal of such charges on the Company’s assets;


 


(3)           the net income of any
Person acquired in a “pooling of interests” transaction accrued prior to the
date it becomes a Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Subsidiary of the referent Person;


 


(4)           the net income (but not
loss) of any Subsidiary of the referent Person to the extent that the
declaration of dividends or similar distributions by that Subsidiary of that
income is restricted by a contract, operation of law or otherwise, except for
such restrictions permitted by clauses (f), (g) and (h) of Section 4.08
whether such permitted restrictions exist on the Measurement Date or are
created thereafter;


 


(5)           the net income or loss
of any other Person, other than a Consolidated Subsidiary of the referent
Person, except:


 


(a)           to
the extent (in the case of net income) of cash dividends or distributions paid
to the referent Person, or to a Wholly Owned Subsidiary of the referent Person
(other than a Subsidiary described in clause (4) above), by such other
Person; or


 


(b)           that
the referent Person’s share of any net income or loss of such other Person
under the equity method of accounting for Affiliates shall not be excluded;


 


(6)           any restoration to
income of any contingency reserve of an extraordinary, nonrecurring or unusual
nature, except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following the Measurement Date;


 


(7)           income or loss
attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued, but not including revenues, expenses, gains and
losses relating to real estate properties sold or held for sale, even if they
were classified as attributable to discontinued operations under the provisions
of SFAS No. 144); and


 


7

















 


(8)           in the case of a
successor to the referent Person by consolidation or merger or as a transferee
of the referent Person’s assets, any earnings of the successor corporation prior
to such consolidation, merger or transfer of assets.


 


“Consolidated
Net Worth” of any Person means the consolidated stockholders’ equity
of such Person, as of the end of the last completed fiscal quarter ending on or
prior to the date of the transaction giving rise to the need to calculate
Consolidated Net Worth determined on a consolidated basis in accordance with
GAAP, less (without duplication) amounts attributable to Disqualified Capital
Stock of such Person and interests in such Person’s Consolidated Subsidiaries
not owned, directly or indirectly, by such Person.


 


“Consolidated
Subsidiary” means, with respect to any Person, a Subsidiary of such
Person, the financial statements of which are consolidated with the financial
statements of such Person in accordance with GAAP.


 


“Corporate
Trust Office of the Trustee” shall be at the address of the Trustee
specified in Section 11.02 or such other address as to which the Trustee
may give notice to the Company.


 


“Currency
Agreements” means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Subsidiary of the Company against fluctuations in currency
values.


 


“Custodian”
means any custodian, receiver, trustee, assignee, liquidator, sequestrator or
similar official under any Bankruptcy Law.


 


“Default”
means an event or condition the occurrence of which is, or with the lapse of
time or the giving of notice or both would be, an Event of Default.


 


“Definitive
Note” means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06, in the form of Exhibit
A except that such Note shall not bear the Global Note Legend and shall not
have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.


 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 as the Depositary with
respect to the Notes, and any and all successors thereto appointed as depositary
hereunder and having become such pursuant to the applicable provision of this
Indenture.


 


“Disqualified
Capital Stock” means that portion of any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event (other than an event which would constitute a Change of
Control), matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in


 


8

















 


each case, upon the occurrence of a Change of Control) on or prior to
the final maturity date of the Notes.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any
successor statute or statutes thereto.


 


“Exchange
Notes” means the 4.875% Senior Notes due 2009 to be issued in
exchange for (1) the Initial Notes pursuant to the Registration Rights
Agreement and (2) the Additional Notes, if any, issued under Section 2.02
pursuant to a registration rights agreement substantially similar to the Registration
Rights Agreement.


 


“Exchange
Offer” means the Exchange Offer as defined in the Registration
Rights Agreement.


 


“Exchange
Offer Registration Statement” means the Exchange Offer Registration
Statement as defined in the Registration Rights Agreement.


 


“Existing
Credit Agreements” mean: 
(1) the Credit Agreement dated as of July 26, 2001, between
the Company, the lenders party thereto in their capacities as lenders
thereunder and Bank of America, N.A., as agent; (2) the Amended and
Restated Credit Agreement dated as of December 28, 2000 between SFI
II, Inc. and Greenwich Capital Markets, Inc., as lender; (3) the
credit facility between Deutsche Bank AG, New York Branch, and iStar DB Seller
LLC, dated as of January 11, 2001; (4) the credit facility, dated as
of August 12, 1998, between Lehman Brothers Holdings, Inc. and SFT
Whole Loan A, Inc.; and (5) the Master Repurchase Agreement dated
September 30, 2002 between Goldman Sachs Mortgage Company and iStar
Finance Sub V LLC, in each case, together with the related documents thereto
(including, without limitation, any security documents), in each case as such
agreements may be amended (including any amendment and restatement thereof),
supplemented or otherwise modified from time to time, including any agreement
extending the maturity of, refinancing, replacing or otherwise restructuring
(including increasing the amount of available borrowings thereunder (provided
that such increase in borrowings is permitted by Section 4.09 hereof) or
adding Subsidiaries of the Company as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders.


 


“Euroclear”
means the Euroclear System.


 


“fair
market value” means, with respect to any asset or property, the
price which could be negotiated in an arm’s-length, free market transaction,
for cash, between a willing seller and a willing and able buyer, neither of
whom is under undue pressure or compulsion to complete the transaction.  Fair market value shall be determined by the
Board of Directors of the Company acting reasonably and in good faith and shall
be evidenced by a Board Resolution of the Board of Directors of the Company
delivered to the Trustee.


 


9

















 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect as of the Measurement Date.  For the avoidance of doubt, revenues,
expenses, gains and losses that are included in results of discontinued
operations because of the application of SFAS No. 144 will be treated as
revenues, expenses, gains and losses from continuing operations.


 


“Global
Note Legend” means the legend set forth in Section 2.06(f)
which is required to be placed on all Global Notes issued under this Indenture.


 


“Global
Notes” means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes, in the form of Exhibit A,
issued in accordance with Section 2.01 or 2.06.


 


“Government
Securities” means direct obligations of, or obligations guaranteed
by, the United States of America, and for the payment of which the United
States pledges its full faith and credit.


 


“Guarantor”
means:  each of the Company’s
Subsidiaries that in the future executes a supplemental indenture in which such
Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor;
provided that any Person constituting a Guarantor as described above shall
cease to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.


 


“Holder”
or “Noteholder”
means a Person in whose name a Note is registered.


 


“IAI
Global Note(s)” means one or more Global Notes in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold to Institutional Accredited Investors.


 


“Indebtedness”
means with respect to any Person, without duplication:


 


(1)           all Obligations of such
Person for borrowed money;


 


(2)           all Obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments;


 


(3)           all Capitalized Lease
Obligations of such Person;


 


10

















 


(4)           all Obligations of such
Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all Obligations under any title retention
agreement (but excluding trade accounts payable and other accrued liabilities
arising in the ordinary course of business that are not overdue by 90 days
or more or are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);


 


(5)           all Obligations for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or
similar credit transaction;


 


(6)           guarantees and other
contingent obligations in respect of Indebtedness referred to in clauses
(1) through (5) above and clause (8) below;


 


(7)           all Obligations of any
other Person of the type referred to in clauses (1) through (6) above
which are secured by any lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market
value of such property or asset and the amount of the Obligation so secured;


 


(8)           all Obligations under
Currency Agreements and Interest Swap Obligations of such Person; and


 


(9)           all Disqualified Capital
Stock issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any.


 


For purposes hereof, the “maximum fixed repurchase price” of any
Disqualified Capital Stock which does not have a fixed repurchase price shall
be calculated in accordance with the terms of such Disqualified Capital Stock
as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Independent
Financial Advisor” means a firm: 
(1) that does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in the Company;
and (2) that, in the judgment of the Board of Directors of the Company, is
otherwise independent and qualified to perform the task for which it is to be
engaged.


 


“Indirect
Participant” means a Person who holds a beneficial interest in a
Global Note through a Participant.


 


11

















 


“Initial
Notes” means the $350.0 million principal amount of 4.875% Senior
Notes due 2009 of the Company issued on the Issue Date.


 


“Institutional
Accredited Investor” means an institution that is an “accredited
investor” as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
that is not also a QIB.


 


“Interest
Payment Date” means January 15 and July 15 of each year
commencing July 15, 2004.


 


“Interest
Swap Obligations” means the obligations of any Person pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements.


 


“Investment”
means, with respect to any Person, any direct or indirect loan or other
extension of credit (including, without limitation, a guarantee), or corporate
tenant lease to or capital contribution to (by means of any transfer of cash or
other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition by such Person of any
Capital Stock, bonds, notes, debentures or other securities or evidences or
Indebtedness issued by, any Person. 
“Investment” shall exclude extensions of trade credit by the Company and
any Subsidiary of the Company on commercially reasonable terms in accordance
with the Company’s or its Subsidiaries’ normal trade practices, as the case may
be.


 


“Investment
Grade” means a rating of the Notes by both S&P and Moody’s, each
such rating being one of such agency’s four highest generic rating categories
that signifies investment grade (i.e. BBB- (or the equivalent) or higher by
S&P and Baa3 (or the equivalent) or higher by Moody’s); provided,
in each case, such ratings are publicly available; provided, further,
that in the event Moody’s or S&P is no longer in existence for purposes of
determining whether the Notes are rated “Investment Grade,” such organization
may be replaced by a nationally recognized statistical rating organization (as
defined in Rule 436 under the Securities Act) designated by the Company,
notice of which shall be given to the Trustee.


 


“Issue
Date” means January 23, 2004, the date of original issuance of
the Initial Notes.


 


“Lien”
means any lien, mortgage, deed of trust, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof and any agreement to give
any security interest).


 


“Maturity”
when used with respect to the Notes means the date on which the principal of
the Notes becomes due and payable as therein provided or as provided in this
Indenture, whether


 


12

















 


at Stated Maturity or on a redemption date or pursuant to a Change of
Control Offer, and whether by declaration of acceleration, call for redemption,
purchase or otherwise.


 


“Measurement
Date” means August 16, 2001.


 


“Moody’s”
means Moody’s Investors Service, Inc. or any successor rating agency.


 


“Non-Recourse
Indebtedness” means any of the Company’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 Company or any of
its Subsidiaries (other than subject to such customary carve-out matters for
which the Company 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 Company for
GAAP purposes);


 


(2)           advanced to any of the
Company’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
Company or any of the Company’s Subsidiaries’ other assets (other than subject
to such customary carve-out matters for which the Company 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 Company 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 acquisition of real property and secured by only the real
property to which such Indebtedness relates without recourse to the Company or
any of its Subsidiaries (other than subject to such customary carve-out matters
for which the Company 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
Company for GAAP purposes).


 


13

















 


“Notes”
means, collectively, the Initial Notes and the Additional Notes, if any, and
treated as a single class of securities, as amended or supplemented from time
to time in accordance with the terms hereof, that are issued pursuant to this
Indenture.


 


“Obligations”
means all obligations for principal, premium, interest, penalties, fees,
indemnification, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.


 


“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” means, with respect to any Person, a certificate signed
by two Officers of such Person; provided, however, that every Officers’
Certificate with respect to compliance with a covenant or condition provided
for in this Indenture shall include (i) a statement that the Officers making or
giving such Officers’ Certificate have read such condition and any definitions
or other provisions contained in this Indenture relating thereto and (ii) a
statement as to whether, in the opinion of the signers, such conditions have
been complied with.


 


“144A
Global Note(s)” means one or more Global Notes in the form of
Exhibit A hereto bearing the Global Note Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.


 


“Opinion
of Counsel” means an opinion from legal counsel who is reasonably
acceptable to the Trustee that meets the requirements of Section 11.05.  The counsel may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Trustee.


 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively.


 


“Permitted
Holder(s)” means SOFI-IV SMT Holdings, L.L.C. and Starwood Capital
Group, L.L.C. and each of their respective Affiliates.


 


“Permitted
Indebtedness” means, without duplication, each of the following:


 


(1)           Indebtedness under:  (a) the Initial Notes, (b) the Company’s
$350.0 million aggregate principal amount of 6.0% Senior Notes due 2010 that
were issued on December 12, 2003, (c) the Company’s $150.0 million
aggregate principal amount of 6.5% Senior Notes due 2013 that were issued on
December 12, 2003, (d) the Company’s $350.0 million aggregate principal
amount of 83⁄4% Senior Notes due 2008 that were issued on the Measurement Date
and (e) the $185.0 million aggregate principal amount of 7.0% Senior Notes due
2008 that were issued in March and April of 2003;


 


14

















 


(2)           Indebtedness incurred
pursuant to the Existing Credit Agreements in an aggregate principal amount at
any time outstanding not to exceed the maximum aggregate amount available under
the Existing Credit Agreements in existence on the Measurement Date and as in
effect on the Measurement Date reduced by any required permanent repayments
(which are accompanied by a corresponding permanent commitment reduction)
thereunder;


 


(3)           other Indebtedness of
the Company and its Subsidiaries outstanding on the Measurement Date reduced by
the amount of any scheduled amortization payments or mandatory prepayments when
actually paid or permanent reductions thereon;


 


(4)           Interest Swap Obligations
of the Company covering Indebtedness of the Company or any of its Subsidiaries
and Interest Swap Obligations of any Subsidiary of the Company covering
Indebtedness of such Subsidiary; provided, however, that such Interest
Swap Obligations are entered into to protect the Company and its Subsidiaries
from fluctuations in interest rates on Indebtedness incurred in accordance with
this Indenture to the extent the notional principal amount of such Interest
Swap Obligation does not exceed the principal amount of the Indebtedness to
which such Interest Swap Obligation relates;


 


(5)           Indebtedness under
Currency Agreements; provided that in the case of Currency
Agreements which relate to Indebtedness, such Currency Agreements do not
increase the Indebtedness of the Company and its Subsidiaries outstanding other
than as a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities and compensation payable thereunder;


 


(6)           Indebtedness of a
Subsidiary of the Company to the Company or to a Wholly Owned Subsidiary of the
Company for so long as such Indebtedness is held by the Company or a Wholly
Owned Subsidiary of the Company;


 


(7)           Indebtedness of the
Company to a Wholly Owned Subsidiary of the Company for so long as such
Indebtedness is held by a Wholly Owned Subsidiary of the Company, in each case
subject to no Lien; provided that:  (a) any Indebtedness of the Company to any Wholly Owned
Subsidiary of the Company is unsecured and subordinated, pursuant to a written
agreement, to the Company’s obligations under this Indenture and the Notes; and
(b) if as of any date any Person other than a Wholly Owned Subsidiary of
the Company owns or holds any such Indebtedness or any Person holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the Company;


 


(8)           Indebtedness arising
from the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within two business days of incurrence;


 


15

















 


(9)           Indebtedness of the
Company or any of its Subsidiaries represented by letters of credit for the
account of the Company or such Subsidiary, as the case may be, in order to
provide security for workers’ compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary course
of business;


 


(10)         Refinancing Indebtedness;
and


 


(11)         additional Indebtedness
of the Company and its Subsidiaries in an aggregate principal amount not to
exceed $15.0 million at any one time outstanding (which amount may, but
need not, be incurred in whole or in part under the Existing Credit
Agreements).


 


For purposes of determining compliance with Section 4.09 hereof,
in the event that an item of Indebtedness meets the criteria of more than one
of the categories of Permitted Indebtedness described in clauses
(1) through (11) above or is entitled to be incurred pursuant to the
second paragraph of such covenant, the Company shall, in its sole discretion,
classify (or later reclassify) such item of Indebtedness in any manner that
complies with this covenant.  Accrual of
interest, accretion or amortization of original issue discount, the payment of
interest on any Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified Capital Stock in the
form of additional shares of the same class of Disqualified Capital Stock will
not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Capital Stock for purposes of the “Limitation on Incurrence of
Additional Indebtedness” covenant.


 


“Permitted
Liens” means the following types of Liens:


 


(1)           Liens for taxes,
assessments or governmental charges or claims either:  (a) not delinquent; or (b) contested in good faith by
appropriate proceedings and as to which the Company or its Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to GAAP;


 


(2)           statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, suppliers,
materialmen, repairmen and other Liens imposed by law incurred in the ordinary
course of business for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made in respect thereof;


 


(3)           Liens incurred or
deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security,
including any Lien securing letters of credit issued in the ordinary course of
business consistent with past practice in connection therewith, or to secure
the performance of tenders, statutory obligations, surety and appeal bonds,
bids, leases, government contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the payment of borrowed
money);


 


16

















 


(4)           judgment Liens not
giving rise to an Event of Default so long as such Lien is adequately bonded
and any appropriate legal proceedings which may have been duly initiated for
the review of such judgment shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;


 


(5)           easements,
rights-of-way, zoning restrictions and other similar charges or encumbrances in
respect of real property not interfering in any material respect with the ordinary
conduct of the business of the Company or any of its Subsidiaries;


 


(6)           any interest or title
of a lessor under any Capitalized Lease Obligation; provided that such Liens do
not extend to any property or assets which is not leased property subject to
such Capitalized Lease Obligation;


 


(7)           Liens upon specific
items of inventory or other goods and proceeds of any Person securing such
Person’s obligations in respect of bankers’ acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of
such inventory or other goods;


 


(8)           Liens securing
reimbursement obligations with respect to commercial letters of credit which
encumber documents and other property relating to such letters of credit and
products and proceeds thereof;


 


(9)           Liens encumbering
deposits made to secure obligations arising from statutory, regulatory,
contractual, or warranty requirements of the Company or any of its Subsidiaries,
including rights of offset and set-off;


 


(10)         Liens securing Interest
Swap Obligations which Interest Swap Obligations relate to Indebtedness that is
otherwise permitted under this Indenture; and


 


(11)         Liens securing
Indebtedness under Currency Agreements.


 


“Person”
means an individual, partnership, corporation, unincorporated organization,
trust or joint venture, or a governmental agency or political subdivision
thereof.


 


“Preferred
Stock” of any Person means any Capital Stock of such Person that has
preferential rights to any other Capital Stock of such Person with respect to
dividends or redemptions or upon liquidation.


 


“Private
Placement Legend” means the legend set forth in
Section 2.06(g)(i) to be placed on all Notes issued under this Indenture
except where otherwise permitted by the provisions of this Indenture.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A.


 


17

















 


“Qualified
Capital Stock” means any Capital Stock that is not Disqualified
Capital Stock.


 


“Refinance”
means, in respect of any security or Indebtedness, to refinance, extend, renew,
refund, repay, prepay, redeem, defease or retire, or to issue a security or
Indebtedness in exchange or replacement for, such security or Indebtedness in
whole or in part.  “Refinanced” and
“Refinancing” shall have correlative meanings.


 


“Refinancing
Indebtedness” means any Refinancing by the Company or any Subsidiary
of the Company of Indebtedness incurred in accordance with Section 4.09
hereof (other than pursuant to clauses (2), (4), (5), (6), (7), (8),
(9) or (11) of the definition of Permitted Indebtedness), in each
case that does not:


 


(1)           result in an increase
in the aggregate principal amount of Indebtedness of such Person as of the date
of such proposed Refinancing (plus the amount of any premium required to be
paid under the terms of the instrument governing such Indebtedness and plus the
amount of reasonable expenses incurred by the Company in connection with such
Refinancing); or


 


(2)           create Indebtedness
with:  (a) a Weighted Average Life
to Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced; or (b) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (i) if
such Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company, and
(ii) if such Indebtedness being Refinanced is subordinate or junior to the
Notes, then such Refinancing Indebtedness shall be subordinate to the Notes at
least to the same extent and in the same manner as the Indebtedness being Refinanced.


 


“Registrable
Notes” has the meaning given such term in the Registration Rights
Agreement.


 


“Registration
Rights Agreement” means the Registration Rights Agreement dated as
of the date hereof by and among the Company and the initial purchasers named
therein as the same may be amended or supplemented from time to time.


 


“Regulation
S” means Regulation S promulgated under the Securities Act.


 


“Regulation S
Global Note(s)” means one or more Global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on, Regulation S.


 


“REIT”
means Real Estate Investment Trust.


 


18

















 


“Responsible
Officer” means, when used with respect to the Trustee, any managing
director, director, principal, vice president, assistant vice president,
assistant treasurer, associate or any other officer within the corporate trust
department of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also shall mean, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge and familiarity with the particular
subject.


 


“Restricted
Definitive Note” means a Definitive Note bearing the Private
Placement Legend.


 


“Restricted
Global Note” means a Global Note bearing the Private Placement Legend.


 


“Rule
144” means Rule 144 promulgated under the Securities Act.


 


“Rule
144A” means Rule 144A promulgated under the Securities Act.


 


“Rule
903” means Rule 903 promulgated under the Securities Act.


 


“Rule
904” means Rule 904 promulgated under the Securities Act.


 


“Secured
Indebtedness” means any Indebtedness secured by a Lien upon the
property of the Company or any of its Subsidiaries.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Senior
Recourse Indebtedness” means all Indebtedness of the Company and its
Subsidiaries (other than Indebtedness that is Non-Recourse Indebtedness and
other than Subordinated Indebtedness).


 


“Shelf
Registration Statement” means the Shelf Registration Statement as
defined in the Registration Rights Agreement.


 


“Significant
Subsidiary,” with respect to any Person, means any Subsidiary of
such Person that satisfies the criteria for a “significant subsidiary” set
forth in Rule 1.02(w) of Regulation S-X under the Exchange Act.


 


“S&P”
means Standard & Poor’s Ratings Group, a division of McGraw Hill Inc., a
New York corporation, or any successor rating agency.


 


“Stated
Maturity” when used with respect to any Indebtedness or any
installment of interest thereon means the dates specified in such Indebtedness
as the fixed date on which the principal of or premiums on such Indebtedness or
such installment of interest is due and payable.


 


“Subordinated
Indebtedness” means all of the Company’s and its Subsidiaries’
Indebtedness that expressly provides that such Indebtedness shall be
subordinated in right of payment to


 


19

















 


any other Indebtedness and matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a
Change of Control) on or after the final maturity date of the Notes.


 


“Subsidiary,”
with respect to any Person, means:


 


(1)           any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person; or


 


(2)           any other Person of
which at least a majority of the voting interest under ordinary circumstances
is at the time, directly or indirectly, owned by such Person.


 


“Total
Unencumbered Assets” as of any date means the sum of:


 


(1)           those Undepreciated
Real Estate Assets not securing any portion of Secured Indebtedness; and


 


(2)           all other assets (but
excluding intangibles and accounts receivable) of the Company and its
Subsidiaries not securing any portion of Secured Indebtedness determined on a
consolidated basis in accordance with GAAP.


 


“Trustee”
means the party named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture and thereafter means the
successor serving hereunder.


 


“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended.


 


“Undepreciated
Real Estate Assets” means, as of any date, the cost (being the
original cost to the Company or any of Subsidiaries plus capital improvements)
of real estate assets of the Company and its Subsidiaries on such date, before
depreciation and amortization of such real estate assets, determined on a
consolidated basis in accordance with GAAP.


 


“Unrestricted
Definitive Note” means one or more Definitive Notes that do not bear
and are not required to bear the Private Placement Legend.


 


“Unrestricted
Global Note” means a Global Note in the form of Exhibit A attached
hereto that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, but that does not
bear the Private Placement Legend, and that is deposited with or on behalf of,
and registered in the name of, the Depositary or its nominee.


 


“Unsecured
Indebtedness” means any Indebtedness of the Company or any of its
Subsidiaries that is not Secured Indebtedness.


 


20

















 


“Weighted
Average Life to Maturity” means, when applied to any Indebtedness at
any date, the number of years obtained by dividing:  (1) the then outstanding aggregate principal amount of such
Indebtedness into; (2) the sum of the total of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal, including payment
at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.


 


“Wholly
Owned Subsidiary” of any Person means any Subsidiary of such Person
of which all the outstanding voting securities (other than in the case of a
foreign Subsidiary, directors’ qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.


 


Section 1.02.  Other Definitions .


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.10

  	
   

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  	
   

  
	
  “Change of Control
  Date”

  	
   

  	
  4.13

  	
   

  
	
  “Change of Control
  Payment Date”

  	
   

  	
  4.13

  	
   

  
	
  “Change of Control
  Offer”

  	
   

  	
  4.13

  	
   

  
	
  “Change of Control
  Purchase Date”

  	
   

  	
  4.13

  	
   

  
	
  “Change of Control
  Purchase Price”

  	
   

  	
  4.13

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “incur”

  	
   

  	
  4.09

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Redemption Date”

  	
   

  	
  3.07

  	
   

  
	
  “Restricted
  Payment”

  	
   

  	
  4.07

  	
   

  
	
  “Surviving Entity”

  	
   

  	
  5.01

  	
   

  



 


Section 1.03.  Incorporation by Reference of Trust
Indenture Act.  Whenever this Indenture refers to a
provision of the TIA, the provision is incorporated by reference in and made a
part of this Indenture.


 


All terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.


 


21

















 


Section 1.04.  Rules of Construction.  Unless the context otherwise requires:


 


(a)           a term has the meaning
assigned to it;


 


(b)           an accounting term not
otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(c)           “or” is not exclusive;


 


(d)           words in the singular
include the plural, and in the plural include the singular;


 


(e)           provisions apply to
successive events and transactions; and


 


(f)            references to sections
of or rules under the Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the SEC from time to
time.


 


ARTICLE 2



THE NOTES


 


Section 2.01.  Form and
Dating.


 


(a)           General.  The Notes and the Trustee’s certificate of
authentication shall be substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its
authentication.  The Notes shall be in
denominations of $1,000 and integral multiples thereof.


 


The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.  However, to the extent any provision of any Note conflicts with
the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling.


 


(b)           Global Notes.  Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto).  Notes issued
in definitive form shall be substantially in the form of Exhibit A attached
hereto (but without the Global Note Legend thereon and without the
“Schedule of Exchanges of Interests in the Global Note” attached
thereto).  Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal amount of outstanding


 


22

















 


Notes from
time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with written
instructions given by the Holder thereof as required by Section 2.06
hereof.


 


(c)           Euroclear
and Clearstream Procedures Applicable.  The
provisions of the “Operating Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” and the “General Terms and Conditions of
Clearstream” and “Customer Handbook” of Cedel Bank (as adopted by Clearstream)
and any alternative or additional procedures from time to time adopted by
Euroclear or Clearstream shall be applicable to transfers of beneficial
interests in the Regulation S Global Notes that are held by Participants
through Euroclear or Clearstream.


 


(d)           Book-Entry
Provisions.  Participants and
Indirect Participants shall have no rights either under this Indenture or under
any Global Note with respect to such Global Note held on their behalf of the
custodian for the Depositary. 
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any Agent from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Participants, the operation of customary practices of the
Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.


 


Section 2.02.  Execution and Authentication.  One or more Officers shall sign the Notes
for the Company by manual or facsimile signature.


 


If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.


 


A Note shall not be valid until authenticated by the manual signature
of the Trustee.  The signature shall be
conclusive evidence that the Note has been authenticated under this Indenture.


 


The Trustee shall, upon a written order of the Company signed by one or
more Officers (an “Authentication Order”), authenticate Notes
for original issue on the Issue Date in aggregate principal amount not to
exceed $350,000,000 (other than as provided in Section 2.07).  The Trustee shall authenticate Additional
Notes thereafter (so long as permitted by the terms of this Indenture) for
original issue upon one or more Authentication Orders in aggregate principal
amount as specified in such order (other than as provided in
Section 2.07).  Each such
Authentication Order shall specify the amount of Notes to be authenticated,
whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes
and whether the Notes are to be issued as Definitive Notes or Global Notes or
such other information as the Trustee shall reasonably request.


 


23

















 


The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes.  An
authenticating agent may authenticate Notes whenever the Trustee may do
so.  Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.  An authenticating agent has the same rights
as an Agent to deal with Holders or an Affiliate of the Company.


 


Section 2.03.  Registrar and Paying Agent.  The Company shall maintain an office or
agency where Notes may be presented for registration of transfer or for exchange
(“Registrar”)
and an office or agency where Notes may be presented for payment (“Paying Agent”).  The Registrar shall keep a register of the
Notes and of their transfer and exchange. 
The Company may appoint one or more co-registrars and one or more
additional paying agents.  The term
“Registrar” includes any co-registrar and the term “Paying Agent” includes any
additional paying agent.  The Company
may change any Paying Agent or Registrar without notice to any Holder.  The Company shall notify the Trustee in
writing of the name and address of any Agent not a party to this Indenture.  If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as
such.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


The Company initially appoints The Depository Trust Company (“DTC”)
to act as Depositary with respect to the Global Notes.


 


The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Notes.


 


Section 2.04.  Paying Agent to Hold Money in Trust.  The Company shall require each Paying Agent
other than the Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal, premium, if any, or interest on the Notes,
and will notify the Trustee in writing of any default by the Company in making
any such payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee.  The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money.  If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying
Agent.  Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Notes.


 


Section 2.05.  Holder Lists.  The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a).  If the Trustee is not
the Registrar, the Company shall furnish to the Trustee at least seven Business
Days before each interest payment date and at such other times as the Trustee
may request in writing, a list in such form and as of such date as the


 


24

















 


Trustee may reasonably require of the names and addresses of the
Holders and the Company shall otherwise comply with TIA § 312(a).


 


Section 2.06.  Transfer
and Exchange.


 


(a)           Transfer and
Exchange of Global Notes. 
A Global Note may not be transferred as a whole except by the Depositary
to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor Depositary.  All Global Notes will be exchanged by the
Company for Definitive Notes if (i) the Company delivers to the Trustee
written notice from the Depositary that it is unwilling or unable to continue
to act as Depositary or that it is no longer a clearing agency registered under
the Exchange Act and, in either case, a successor Depositary is not appointed
by the Company within 120 days after the date of such notice from the Depositary
or (ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. 
Upon the occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee in writing.  Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof.  Every
Note authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to this Section 2.06 or Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note.  A Global Note may
not be exchanged for another Note other than as provided in this
Section 2.06(a); provided, however, that beneficial interests in a
Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.


 


(b)           Transfer and
Exchange of Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes shall be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable
Procedures.  Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following
subparagraphs, as applicable:


 


(i)      Transfer of
Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in the same Restricted Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend.  Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note.  No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).


 


25

















 


(ii)           All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers
and exchanges of beneficial interests that are not subject to Section 2.06(b)(i)
above, the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant account
to be credited with such increase or (B) (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged and (2) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (1)
above.  Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been satisfied
upon receipt by the Registrar of the instructions contained in the Letter of
Transmittal delivered by the holder of such beneficial interests in the Restricted
Global Notes.  Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable under
the Securities Act, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h) hereof.


 


(iii)          Transfer of
Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any
Restricted Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of Section 2.06(b)(ii)
above and the Registrar receives the following:


 


(A)          if the transferee will take delivery in the
form of a beneficial interest in the 144A Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;


 


(B)           if the transferee will take delivery in the
form of a beneficial interest in the Regulation S Global Note, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (2) thereof; and


 


(C)           if the transferee will take delivery in the
form of a beneficial interest in the IAI Global Note, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the certifications
and certificates and Opinion of Counsel required by item (3)(d) thereof, if applicable.


 


26

















 


(iv)          Transfer and
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.  A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Note or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:


 


(A)          such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is
an affiliate (as defined in Rule 144) of the Company;


 


(B)           such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)           such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


(D)          the Registrar receives the following:


 


(1)           if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof; or


 


(2)           if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


27

















 


If any such transfer or exchange is effected pursuant to this clause
(iv) at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred or exchanged pursuant
to this clause (iv).


 


Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.


 


(c)           Transfer or
Exchange of Beneficial Interests for Definitive Notes.


 


(i)            Beneficial
Interests in Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial
interest in a Restricted Global Note proposes to exchange such beneficial interest
for a Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive Note,
then, upon receipt by the Registrar of the following documentation:


 


(A)          if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


(B)           if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the certifications
in item (1) thereof;


 


(C)           if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if such beneficial interest is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;


 


(E)           if such beneficial interest is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;


 


28

















 


(F)           if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or


 


(G)           if such beneficial interest is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a beneficial interest
in a Restricted Global Note pursuant to this Section 2.06(c) shall be registered
in such name or names and in such authorized denomination or denominations as
the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant.  The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so registered.  Any Definitive Note issued in exchange for a
beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.


 


(ii)           Beneficial
Interests in Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest
in a Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note only
if:


 


(A)          such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


(B)           such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)           such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


29

















 


(D)          the Registrar receives the following:


 


(1)           if the holder of such beneficial interest in
a Restricted Global Note proposes to exchange such beneficial interest for a
Definitive Note that does not bear the Private Placement Legend, a certificate
from such holder in the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or


 


(2)           if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a certificate from such holder in
the form of Exhibit B hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


(iii)          Beneficial
Interests in Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial
interest in an Unrestricted Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the
Company shall execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate principal amount.  Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant.  The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall not bear the Private Placement Legend.


 


(d)           Transfer and
Exchange of Definitive Notes for Beneficial Interests.


 


(i)            Restricted
Definitive Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted
Definitive Note proposes to exchange such Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Definitive


 


30

















 


Notes to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar
of the following documentation:


 


(A)          if the Holder of such Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a Restricted
Global Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (2)(b) thereof;


 


(B)           if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(C)           if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof;


 


(D)          if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the certifications
in item (3)(a) thereof;


 


(E)           if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable;


 


(F)           if such Restricted Definitive Note is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or


 


(G)           if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,


 


the Trustee shall cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause (B)
above, the 144A Global Note, in the case of clause (C) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.


 


31

















 


(ii)           Restricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted
Definitive Note may exchange such Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note only if:


 


(A)          such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


(B)           such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)           such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


(D)          the Registrar receives the following:


 


(1)           if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (1)(c) thereof; or


 


(2)           if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a certificate
from such Holder in the form of Exhibit B hereto, including the certifications
in item (4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend
are no longer required in order to maintain compliance with the Securities Act.


 


Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.


 


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(iii)          Unrestricted
Definitive Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted
Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Definitive Notes to a Person who
takes delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note at any time.  Upon receipt of a
request for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes.


 


If any such exchange or transfer from a
Definitive Note to a beneficial interest is effected pursuant to subparagraphs
(ii) or (iii) above at a time when an Unrestricted Global Note has not yet been
issued, the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so exchanged or transferred.


 


(e)           Transfer and
Exchange of Definitive Notes for Definitive Notes.  Upon written request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar shall register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. 
In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(i)            Restricted
Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be transferred to
and registered in the name of Persons who take delivery thereof in the form of
a Restricted Definitive Note if the Registrar receives the following:


 


(A)          if the transfer will be made pursuant to Rule
144A under the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in item (1)
thereof;


 


(B)           if the transfer will be made pursuant to
Rule 903 or Rule 904, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (2) thereof; and


 


(C)           if the transfer will be made pursuant to any
other exemption from the registration requirements of the Securities Act, then
the transferor must deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of Counsel required by
item (3) thereof, if applicable.


 


33

















 


(ii)           Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted Definitive
Note if:


 


(A)          such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it
is not (1) a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


(B)           any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)           any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or


 


(D)          the Registrar receives the following:


 


(1)           if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or


 


(2)           if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item
(4) thereof;


 


and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(iii)          Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may transfer
such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon receipt
of a written request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


34

















 


(f)            Exchange
Offer.  Upon the occurrence
of the Exchange Offer in accordance with the Registration Rights Agreement, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02, the Trustee shall authenticate (i) one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Restricted Global Notes
tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not broker-dealers, (y) they are not participating
in a distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the Exchange
Offer and (ii) Definitive Notes in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in
the Exchange Offer.  Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.


 


(g)           Legends.  The following legends shall
appear on the face of all Global Notes and Definitive Notes issued under this
Indenture unless specifically stated otherwise in the applicable provisions of
this Indenture.


 


(i)            Private
Placement Legend.


 


(A)          Except as permitted by subparagraph (B)
below, each Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:


 


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW.  BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED
INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT
IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION
IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED
INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES
ACT (AN “ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT,


 


35

















 


PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. 
IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER
THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES”
AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.”


 


(B)           Notwithstanding the foregoing, any Global
Note or Definitive Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06
(and all Notes issued in exchange therefor or substitution thereof) shall not
bear the Private Placement Legend.


 


(ii)           Global Note
Legend.  Each Global Note
shall bear a legend in substantially the following form:


 


“THIS GLOBAL
NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS
NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH


 


36

















 


NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY
BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF
THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.”


 


(h)           Cancellation
and/or Adjustment of Global Notes.  At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof.  At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note shall be increased accordingly and
an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(i)            General
Provisions Relating to Transfers and Exchanges.


 


(i)            To
permit registrations of transfers and exchanges, the Company shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s
order or at the Registrar’s request.


 


(ii)           No
service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company and the Trustee may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 4.13 and 9.05 hereof).


 


(iii)          The
Registrar shall not be required to register the transfer of or exchange any Note
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part.


 


(iv)          All
Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture,


 


37

















 


as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.


 


(v)           The
Company shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days
before the day of any selection of Notes for redemption under Section 3.02
hereof and ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.


 


(vi)          Prior
to due presentment for the registration of a transfer of any Note, the Trustee,
any Agent and the Company may deem and treat the Person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice
to the contrary.


 


(vii)         The
Trustee shall authenticate Global Notes and Definitive Notes in accordance with
the provisions of Section 2.02 hereof.


 


(viii)        All
certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of
transfer or exchange may be submitted by facsimile.


 


Section 2.07.  Replacement Notes.  If any mutilated Note is surrendered to the
Trustee or the Company and the Trustee receives evidence to its satisfaction of
the destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee’s requirements are met.  If required by the Trustee or the Company,
an indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced.  The
Company may charge for its expenses in replacing a Note.


 


Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.


 


Section 2.08.  Outstanding Notes.  The Notes outstanding at any time are all
the Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancellation, those reductions in the interest in a Global
Note effected by the Trustee in accordance with the provisions hereof, and
those described in this Section as not outstanding.  Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Note.


 


38

















 


If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.


 


If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.


 


If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.


 


Section 2.09.  Treasury Notes.  In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company, or by any Affiliate of the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that the Trustee actually knows are so
owned shall be so disregarded.


 


Section 2.10.  Temporary Notes.  Until certificates representing Notes are
ready for delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes.  Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee.  Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes.


 


Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.


 


Section 2.11.  Cancellation.  The Company at any time may deliver Notes to
the Trustee for cancellation.  The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered
to them for registration of transfer, exchange or payment.  The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy canceled Notes (subject to the record retention
requirement of the Exchange Act).  The
Company may not issue new Notes to replace Notes that it has paid or that have
been delivered to the Trustee for cancellation.


 


Section 2.12.  Defaulted Interest.  If the Company defaults in a payment of interest
on the Notes, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof.  The Company 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. 
The Company shall fix or cause to be fixed each such special record date
and payment date; provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest.  At least 15 days before


 


39

















 


the special record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of the Company) shall
mail or cause to be mailed to Holders a notice that states the special record
date, the related payment date and the amount of such interest to be paid.


 


Section 2.13.  Record Date.  The Company may set a record date for
purposes of determining the identity of Holders entitled to vote or to consent
to any action by vote or consent authorized or permitted by Sections 6.04 and
6.05.


 


Section 2.14.  CUSIP Numbers.  The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
CUSIP numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or 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 the omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the CUSIP numbers.


 


ARTICLE 3



REDEMPTION AND PREPAYMENT


 


Section 3.01.  Notices to Trustee.  If the Company elects to redeem Notes pursuant
to the optional redemption provisions of Section 3.07 hereof, it shall
furnish to the Trustee, at least 30 days but not more than 60 days before a
redemption date, an Officers’ Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed, (iv) the redemption
price and (v) the CUSIP numbers of the Notes to be redeemed.


 


Section 3.02.  Selection of Notes to Be Redeemed.  In the event that the Company chooses to
redeem less than all of the Notes, selection of the Notes for redemption will
be made by the Trustee either:


 


(1)           in compliance with the
requirements of the principal national securities exchange, if any, on which
the Notes are listed; or


 


(2)           on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate.


 


No Notes of a principal amount of $1,000 or less shall be redeemed in
part.


 


40

















 


The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed.  Notes and portions of Notes selected shall
be in amounts of $1,000 or whole multiples of $1,000; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed.  Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.


 


Section 3.03.  Notice of Redemption.  At least 30 days but not more than 60 days before
a redemption date, the Company shall mail or cause to be mailed, by first class
mail (at its own expense), a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.


 


The notice shall identify the Notes to be redeemed, including the CUSIP
numbers, and shall state:


 


(a)           the redemption date;


 


(b)           the redemption price
and the amount of accrued and unpaid interest, if any, to be paid;


 


(c)           if any Note is being
redeemed in part, the portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be
issued upon cancellation of the original Note;


 


(d)           the name and address of
the Paying Agent;


 


(e)           that Notes called for
redemption must be surrendered to the Paying Agent to collect the redemption
price;


 


(f)            that, unless the
Company defaults in making such redemption payment, interest on Notes called
for redemption ceases to accrue on and after the redemption date;


 


(g)           the paragraph of the
Notes and/or Section of this Indenture pursuant to which the Notes called
for redemption are being redeemed; and


 


(h)           that no representation
is made as to the correctness or accuracy of the CUSIP number, if any, listed
in such notice or printed on the Notes.


 


At the Company’s written request, the Trustee shall give the notice of
redemption in the Company’s name and at its expense; provided, however,
that the Company shall have provided to the Trustee, at least 45 days prior to
the redemption date (unless a shorter notice shall be satisfactory to the
Trustee), the information required by clauses (a) through (d) above.


 


41

















 


Section 3.04.  Effect of Notice of Redemption.  Once notice of redemption is mailed in accordance
with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the redemption date at the redemption price.  A notice of redemption may not be conditional.


 


Section 3.05.  Deposit of Redemption Price.  One Business Day prior to the redemption
date, the Company shall deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption price of and accrued interest on all Notes to
be redeemed on that date and any amounts owed the Trustee.  The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed and any
amounts owed the Trustee.


 


If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes
or the portions of Notes called for redemption.  If a Note is redeemed on or after an interest record date but on
or prior to the related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note was registered at
the close of business on such record date. 
If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Company to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.


 


Section 3.06.  Notes Redeemed in Part.  Upon surrender of a Note that is redeemed in
part, the Company shall issue and, upon the Company’s written request, the
Trustee shall authenticate for the Holder at the expense of the Company a new
Note equal in principal amount to the unredeemed portion of the Note
surrendered.


 


Section 3.07.  Optional Redemption.  At any time on or prior to January 15,
2009, the Notes may be redeemed or purchased in whole but not in part at the Company’s
option at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the date
of redemption or purchase (the “Redemption Date”) (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).


 


“Applicable
Premium” means, with respect to a Note at any Redemption Date, the
greater of:  (1) 1.0% of the
principal amount of such Note; and (2) the excess of (a) the present value
at such Redemption Date of (i) the principal amount of such Note on
January 15, 2009 plus (ii) all required remaining scheduled interest
payments due on such Note through January 15, 2009, computed using a
discount rate equal to the Treasury Rate plus 50 basis points; over
(b) the principal amount of such Note on such Redemption Date.  Calculation of the Applicable Premium will
be made by the Company or on behalf of the Company by such Person as the
Company shall


 


42

















 


designate; provided, however, that such
calculation shall not be a duty or obligation of the Trustee.


 


“Treasury
Rate” means, with respect to a Redemption Date, the yield to maturity
at the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve Statistical
Release H.15(519) that has become publicly available at least two Business
Days prior to such Redemption Date (or, if such Statistical Release is no
longer published, any publicly available source of similar market data)) most
nearly equal to the period from such Redemption Date to January 15, 2009; provided,
however,
that if the period from such Redemption Date to January 15, 2009 is not
equal to the constant maturity of the United States Treasury security for which
a weekly average yield is given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given, except that if the period from such Redemption Date to January 15,
2009 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.


 


Other than as specifically provided in this Section 3.07, any redemption
pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.


 


Section 3.08.  Mandatory Redemption.  The Company shall not be required to make
mandatory redemption payments with respect to the Notes prior to Maturity.


 


ARTICLE 4



COVENANTS


 


Section 4.01.  Payment of Notes.  The Company shall pay or cause to be paid
the principal of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. 
Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company or a Subsidiary, holds
as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.


 


The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
the then applicable interest rate on the Notes to the extent lawful; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.


 


Section 4.02.  Maintenance of Office or Agency.  The Company shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of


 


43

















 


the Trustee or an affiliate of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served.  The
Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency.  If at any time the Company 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 of the Trustee.


 


The Company may also from time to time designate one or more other
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; provided,
however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. 
The Company shall 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 Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with
Section 2.03.


 


Section 4.03.  Reports to Holders.  Whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the
Company shall furnish the Holders of Notes:


 


(1)           all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such Forms, including a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” that describes the financial condition and
results of operations of the Company and its consolidated Subsidiaries (showing
in reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management’s Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Subsidiaries) and, with respect to the annual
information only, a report thereon by the Company’s certified independent
accountants; and


 


(2)           all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports, in each case within the time periods
specified in the Commission’s rules and regulations.


 


In addition, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability within the time periods
specified in the Commission’s rules and regulations (unless the Commission will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request.  In addition, the Company has agreed that, for so long as any Notes
remain outstanding, it will furnish to the Holders and to securities analysts


 


44

















 


and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


Section 4.04.  Compliance Certificate.  (a) 
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled their
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action the Company is taking or proposes to take with respect thereto.


 


(b)           The
Company shall, so long as any of the Notes are outstanding, deliver to the
Trustee, forthwith upon any Officer becoming aware of any Default or Event of
Default, an Officers’ Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.


 


Section 4.05.  Taxes.  The Company shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders.


 


Section 4.06.  Stay, Extension and Usury Laws.  The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though no such law has been enacted.


 


Section 4.07.  Limitation on Restricted Payments.  The Company shall not, and shall not cause
or permit any of its Subsidiaries to, directly or indirectly:


 


45

















 


(1)           declare or pay any
dividend or make any distribution (other than dividends or distributions
payable in Qualified Capital Stock of the Company) on or in respect of shares
of the Company’s Capital Stock to holders of such Capital Stock;


 


(2)           purchase, redeem or
otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock; or


 


(3)           make any principal
payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or
retire for value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, any Indebtedness of the Company that is subordinate
or junior in right of payment to the Notes


 


(4)           if at the time of such
action (each, a “Restricted Payment”) or immediately after giving effect
thereto,


 


(i)            a Default or an Event
of Default shall have occurred and be continuing; or


 


(ii)           the Company is not able
to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) in compliance with Section 4.09 hereof; or


 


(iii)          the aggregate amount of
Restricted Payments (including such proposed Restricted Payment) made
subsequent to the Measurement Date (the amount expended for such purposes, if
other than in cash, being the fair market value of such property as determined
in good faith by the Board of Directors of the Company) shall exceed the sum
of:


 


(w)                               95%
of the cumulative Consolidated Adjusted Earnings (or if cumulative Consolidated
Adjusted Earnings shall be a loss, minus 100% of such loss) of the Company
earned subsequent to June 30, 2001 and on or prior to the date the
Restricted Payment occurs (the “Reference Date”) (treating such period as a
single accounting period); plus


 


(x)                                   100%
of the aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Measurement Date and on or prior to the Reference Date of Qualified
Capital Stock of the Company; plus


 


(y)                                 without
duplication of any amounts included in clause (iii)(x) above, 100% of the
aggregate net cash proceeds of any equity


 


46

















 


contribution received by the Company from a
holder of the Company’s Capital Stock.


 


The foregoing provisions do not prohibit:


 


(1)           the payment of any
dividend within 60 days after the date of declaration of such dividend if
the dividend would have been permitted on the date of declaration;


 


(2)           if no Default or Event
of Default shall have occurred and be continuing, the acquisition of any shares
of Capital Stock of the Company, either (i) solely in exchange for shares
of Qualified Capital Stock of the Company or (ii) through the application of
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;


 


(3)           if no Default or Event
of Default shall have occurred and be continuing, the acquisition of any
Indebtedness of the Company that is subordinate or junior in right of payment
to the Notes either (i) solely in exchange for shares of Qualified Capital
Stock of the Company, or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Subsidiary of the
Company) of (a) shares of Qualified Capital Stock of the Company or
(b) Refinancing Indebtedness;


 


(4)           so long as no Default
or Event of Default shall have occurred and be continuing, repurchases by the
Company of Common Stock of the Company from employees of the Company or any of
its Subsidiaries or their authorized representatives upon the death, disability
or termination of employment of such employees, in an aggregate amount not to
exceed $500,000 in any calendar year;


 


(5)           the declaration or
payment by the Company of any dividend or distribution that is necessary to
maintain its status as a REIT under the Code if:


 


(a)           the
Consolidated Fixed Charge Coverage Ratio of the Company is greater than 2.0 to
1.0; and


 


(b)           no
Default or Event of Default shall have occurred and be continuing;


 


(6)           the payment of any
dividend on Preferred Stock of the Company; and


 


(7)           Restricted Payments in
an amount not to exceed $75.0 million.


 


In determining the aggregate amount of Restricted Payments made
subsequent to the Measurement Date in accordance with clause (iii) of the
immediately preceding paragraph, amounts expended pursuant to clauses (1),
(2) (ii), 3 (ii) (a), (4), (5) and (7) shall be included in
such calculation.


 


47

















 


Section 4.08.  Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.  The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or permit to
exist or become effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to:


 


(1)           pay dividends or make
any other distributions on or in respect of its Capital Stock;


 


(2)           make loans or advances
or to pay any Indebtedness or other obligation owed to the Company or any other
Subsidiary of the Company; or


 


(3)           transfer any of its
property or assets to the Company or any other Subsidiary of the Company,


 


except for such encumbrances or restrictions existing under or by
reason of:


 


(a)           applicable
law;


 


(b)           this Indenture;


 


(c)           customary
non-assignment provisions of any contract or any lease governing a leasehold
interest of any Subsidiary of the Company;


 


(d)           any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired;


 


(e)           agreements existing on
the Measurement Date to the extent and in the manner such agreements are in
effect on the Measurement Date;


 


(f)            provisions of any
agreement governing Indebtedness incurred in accordance with this Indenture
that impose such encumbrances or restrictions upon the occurrence of a default
or failure to meet financial covenants or conditions under the agreement;


 


(g)           restrictions on the
transfer of assets (other than cash) held in a Subsidiary of the Company
imposed under any agreement governing Indebtedness incurred in accordance with
this Indenture;


 


(h)           provisions of any
agreement governing Indebtedness incurred in accordance with this Indenture
that require a Subsidiary to service its debt obligations before making
dividends, distributions or advancements in respect of its Capital Stock;


 


48

















 


(i)            an agreement governing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clause (b), (d) or
(e) above; provided, however, that the provisions relating to
such encumbrance or restriction contained in any such Indebtedness are not
materially less favorable to the Company in any material respect as determined
by the Board of Directors of the Company in their reasonable and good faith
judgment than the provisions relating to such encumbrance or restriction contained
in agreements referred to in such clause (b), (d) or (e).


 


Section 4.09.  Limitation on Incurrence of Additional
Indebtedness.  The Company
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume, guarantee, become liable, contingently or
otherwise, with respect to, or otherwise become responsible for payment of
(collectively, “incur”) any Indebtedness (including, without limitation,
Acquired Indebtedness) other than Permitted Indebtedness.


 


Notwithstanding the foregoing, if no Default or Event of Default shall
have occurred and be continuing at the time of or as a consequence of the
incurrence of any such Indebtedness, the Company or any of its Subsidiaries may
incur Indebtedness (including, without limitation, Acquired Indebtedness), in
each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof:


 


•                  the Consolidated
Fixed Charge Coverage Ratio of the Company is greater than 1.50 to 1.0;


 


•                  the ratio of the
aggregate amount of Indebtedness outstanding on a consolidated basis to the
Company’s Consolidated Net Worth is less than 5.0 to 1.0; and


 


•                  the ratio of the
aggregate amount of Senior Recourse Indebtedness outstanding on a consolidated
basis to the sum of:  (1) the
Company’s Consolidated Net Worth; and (2) the aggregate amount of the
Subordinated Indebtedness outstanding on a consolidated basis is less than 2.75
to 1.0; provided,
however, that the aggregate principal amount of such Subordinated
Indebtedness is not in excess of the Company’s Consolidated Net Worth.


 


Notwithstanding the foregoing, the Company shall not permit TriNet Corporate
Realty Trust, Inc. (“TriNet”) or any of its Subsidiaries to
incur Indebtedness (as defined in the indenture governing TriNet’s outstanding
publicly-held debt securities on the Measurement Date) if, immediately after
giving effect to the incurrence of such Indebtedness and the application of the
proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of TriNet and its Subsidiaries on a consolidated basis determined
in accordance with GAAP is greater than 55% of the sum of (without
duplication):  (1) the Total Assets
(as defined in the indenture governing TriNet’s outstanding publicly-held debt
securities on the Measurement Date) of TriNet and its Subsidiaries as of the
end of the calendar quarter covered in TriNet’s Annual Report on Form 10-K
or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the


 


49

















 


Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Indebtedness; and
(2) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by TriNet or any Subsidiary
of TriNet since the end of such calendar quarter, including those proceeds
obtained in connection with the incurrence of such additional
Indebtedness.  The above limitation
shall terminate immediately upon TriNet ceasing to exist as a Subsidiary of the
Company as a result of a merger or consolidation of TriNet with the Company or
the sale, transfer, disposition or distribution of all or substantially all of
TriNet’s assets to the Company.


 


Section 4.10.  Limitation on Transactions with Affiliates.  The Company shall not, and shall not permit
any of its Subsidiaries to, directly or indirectly, enter into or permit to
exist any transaction or series of related transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with, or for the benefit of, any of its Affiliates
(each an “Affiliate
Transaction”), other than: 
(1) Affiliate Transactions permitted as described below; and
(2) Affiliate Transactions on terms that are no less favorable than those
that might reasonably have been obtained in a comparable transaction at such
time on an arm’s-length basis from a Person that is not an Affiliate of the Company
or such Subsidiary.


 


All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of
$5.0 million shall be approved by the Board of Directors of the Company or
such Subsidiary, as the case may be, such approval to be evidenced by a Board
Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions.  If the Company or any Subsidiary of the Company enters into an
Affiliate Transaction (or a series of related Affiliate Transactions related to
a common plan) that involves an aggregate fair market value of more than
$10.0 million, the Company or such Subsidiary, as the case may be, shall,
prior to the consummation thereof, obtain a favorable opinion as to the
fairness of such transaction or series of related transactions to the Company
or the relevant Subsidiary, as the case may be, from a financial point of view,
from an Independent Financial Advisor and file the same with the Trustee.


 


The restrictions set forth in the first paragraph of this
Section 4.10 shall not apply to:


 


(1)           reasonable fees and
compensation paid to and indemnity provided on behalf of, officers, directors,
employees or consultants of the Company or any Subsidiary of the Company as
determined in good faith by the Company’s Board of Directors or senior management;


 


(2)           transactions
exclusively between or among the Company and any of its Subsidiaries or
exclusively between or among such Subsidiaries in the ordinary course of
business, provided
such transactions are not otherwise prohibited by this Indenture;


 


50

















 


(3)           transactions between
the Company or one of its Subsidiaries and any Person in which the Company or
one of its Subsidiaries has made an Investment in the ordinary course of the
Company’s real estate lending business and such Person is an Affiliate solely
because of such Investment;


 


(4)           transactions between
the Company or one of its Subsidiaries and any Person in which the Company or
one of its Subsidiaries holds an interest as a joint venture partner and such
Person is an Affiliate solely because of such interest;


 


(5)           any agreement as in
effect as of the Measurement Date or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not more disadvantageous to the Holders in any material respect
than the original agreement as in effect on the Measurement Date; and


 


(6)           Restricted Payments
permitted by Section 4.07.


 


Section 4.11.  Limitation on Liens.  The Company shall not, and shall not cause
or permit any of its Subsidiaries to, directly or indirectly, create, incur,
assume or permit or suffer to exist any Liens of any kind on the assets of the
Company securing Indebtedness of the Company unless:


 


(1)           in the case of Liens
securing Indebtedness of the Company that is expressly subordinate or junior in
right of payment to the Notes, the Notes are secured by a Lien on such
property, assets or proceeds that is senior in priority to such Liens; and


 


(2)           in all other cases, the
Notes are equally and ratably secured except for:


 


(a)           Liens
existing as of the Measurement Date to the extent and in the manner such Liens
are in effect on the Measurement Date;


 


(b)           Liens
securing the Notes;


 


(c)           Liens
securing Refinancing Indebtedness that is incurred to Refinance any
Indebtedness that has been secured by a Lien permitted under this Indenture and
that has been incurred in accordance with the provisions of this Indenture; provided,
however,
that such Liens:  (i) are no less
favorable to the Holders than the Liens in respect of the Indebtedness being
Refinanced; and (ii) do not extend to or cover any property or assets of
the Company not securing the Indebtedness so Refinanced; and


 


(d)           Permitted
Liens.


 


51

















 


Section 4.12.  Corporate Existence.  Subject to Article 5 hereof, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries; provided,
however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders.


 


Section 4.13.  Offer to Repurchase Upon Change of Control.  (a) 
Upon the occurrence of a Change of Control (the date of such occurrence,
the “Change
of Control Date”), each Holder shall have the right to require the
Company to purchase such Holder’s Notes in whole or in part in integral
multiples of $1,000 at a purchase price (the “Change of Control Purchase Price”)
in cash equal to 101% of the principal amount of such Notes, plus accrued and
unpaid interest, if any, at the date of purchase (the “Change of Control Purchase Date”),
pursuant to and in accordance with the offer described in this
Section 4.13 (the “Change of Control Offer”).


 


(b)           Within
30 days following the Change of Control Date the Company shall send, by first
class mail, a notice to the Holders and the Trustee stating:


 


(i)            that
the Change of Control Offer is being made pursuant to this Section 4.13
and that all Notes validly tendered will be accepted for payment;


 


(ii)           the
Change of Control Purchase Price and the Change of Control Purchase Date, which
shall be a Business Day that is no earlier than 30 days nor later than 60 days
from the date such notice is mailed (the “Change of Control Payment Date”) other
than as may be required by law;


 


(iii)          that
any Note not tendered will continue to accrue interest;


 


(iv)          that
any Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date unless the
Company shall default in the payment of the Change of Control Purchase Price of
the Notes and the only remaining right of the Holder is to receive payment of
the Change of Control Purchase Price upon surrender of the applicable Note to
the Paying Agent;


 


(v)           that
Holders electing to have a portion of a Note purchased pursuant to a Change of
Control Offer may only elect to have such Note purchased in integral multiples
of $1,000;


 


52

















(vi)                              that
if a Holder elects to have a Note purchased pursuant to the Change of Control
Offer it will be required to surrender the Note, with the form entitled “Option
of Holder to Elect Purchase” on the reverse of the Note completed, or transfer
by book-entry transfer, to the Paying Agent at the address specified in the
notice prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;


 


(vii)                           that
a Holder will be entitled to withdraw its election if the Company receives, not
later than the third Business Day preceding the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Notes such Holder delivered for purchase,
and a statement that such Holder is withdrawing its election to have such Note
purchased; and


 


(viii)                        that
if Notes are purchased only in part a new Note of the same type will be issued
in principal amount equal to the unpurchased portion of the Notes surrendered.


 


(c)                                  On
or before the Change of Control Payment Date, the Company shall, to the extent
lawful, accept for payment, all Notes or portions thereof validly tendered
pursuant to the Change of Control Offer, and shall deliver to the Trustee an
Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this
Section 4.13.  The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the
Notes tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written request
from the Company shall authenticate and mail or deliver such new Note to such
Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered.  Any Note not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof.


 


(d)                                 The
Company shall comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable in connection with the repurchase of Notes
pursuant to an offer hereunder.  To the
extent the provisions of any securities laws or regulations conflict with the
provisions under this Section 4.13, the Company shall comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations under this Section 4.13 by virtue thereof.


 


Section 4.14.  Limitation on Preferred Stock of
Subsidiaries.  The Company
shall not permit any of its Subsidiaries to issue any Preferred Stock (other
than to the Company or to a Wholly Owned Subsidiary of the Company) or permit
any Person (other than the Company or a Wholly Owned Subsidiary of the Company)
to own any Preferred Stock of any Subsidiary of the Company, other than
Preferred Stock outstanding on the Measurement Date of Subsidiaries formed to
facilitate maintaining the Company’s REIT status.


 


Section 4.15.  Conduct of Business.  The Company and its Subsidiaries shall
engage primarily in the financing and real-estate related businesses contemplated
by Article III(b) of the


 


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Company’s Amended and Restated Charter as in effect on the Measurement
Date and other activities related to or arising out of those activities.


 


Section 4.16.  Limitation of Guarantees by Subsidiaries.  The Company shall not permit any of its
Subsidiaries, directly or indirectly, by way of the pledge of any intercompany
note or otherwise, to assume, guarantee or in any other manner become liable
with respect to any Indebtedness of the Company, unless, in any such case:


 


(1)                                  such
Subsidiary executes and delivers a supplemental indenture to this Indenture,
providing a guarantee of payment of the Notes by such Subsidiary; and


 


(2)                                  if
such assumption, guarantee or other liability of such Subsidiary is provided in
respect of Indebtedness that is expressly subordinated to the Notes, the
guarantee or other instrument provided by such Subsidiary in respect of such
subordinated Indebtedness shall be subordinated to the Guarantee pursuant to
subordination provisions no less favorable to the Holders of the Notes than
those contained in this Indenture.


 


Notwithstanding the foregoing, any such Guarantee by a Subsidiary of
the Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged, without any further action required on
the part of the Trustee or any Holder, upon:


 


(1)                                  the
unconditional release of such Subsidiary from its liability in respect of the
Indebtedness in connection with which such Guarantee was executed and delivered
pursuant to the preceding paragraph; or


 


(2)                                  any
sale or other disposition (by merger or otherwise) to any Person that is not a
Subsidiary of the Company of all of the Company’s Capital Stock in, or all or
substantially all of the assets of, such Subsidiary; provided that:  (a) such sale or disposition of such
Capital Stock or assets is otherwise in compliance with the terms of this Indenture;
and (b) such assumption, guarantee or other liability of such Subsidiary
has been released by the holders of the other Indebtedness so guaranteed.


 


Section 4.17.  Maintenance of Total Unencumbered Assets.  The Company and its Subsidiaries shall
maintain Total Unencumbered Assets of not less than 125% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Company and its Subsidiaries,
in each case on a consolidated basis.


 


Section 4.18.  Termination of Certain Covenants In Event of
Investment Grade Rating.  In
the event that each of the Rating Categories assigned to the Notes by the
Rating Agencies is Investment Grade, the obligations under the covenants
contained in Sections 4.07, 4.08, 4.10, 4.11, 4.14, 4.15 and 4.16 hereof
shall cease to apply to the Company in the event, and only for so long as, the
Notes are rated Investment Grade and no Default or Event of Default has
occurred and is continuing.


 


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Section 4.19.  Maintenance of Properties; Books and
Records; Compliance with Law. 
(a)  The Company shall and shall
cause each of its Subsidiaries to at all times cause all properties used or
useful in the conduct of its business to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereto; provided
that nothing in this Section 4.19 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is
either (i) in the ordinary course of business, (ii) in the reasonable and good
faith judgment of the Board of Directors or management of the Company or the
Subsidiary concerned, as the case may be, desirable in the conduct of the
business of the Company or such Subsidiary, as the case may be, or (iii)
otherwise permitted by this Indenture.


 


(b)                                 The
Company shall and shall cause each of its Subsidiaries to keep proper and true
books of record and account, in which full and correct entries shall be made of
all financial transactions and the assets and business of the Company and each
of its Subsidiaries, and reflect on its financial statements adequate accruals
and appropriations to reserves, all in accordance with GAAP consistently
applied to the Company and its Subsidiaries taken as a whole.


 


(c)                                  The
Company shall and shall cause each of its Subsidiaries to comply in all
material respects with all statutes, laws, ordinances, or government rules and
regulations to which it is subject, non-compliance with which would materially
adversely affect the business, earnings, properties, assets or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole.


 


Section 4.20.  Registration Rights.  (a)  The Company agrees that the
Holders (and any Person that has a beneficial interest in a Note) from time to
time of Registrable Notes are entitled to the benefits of the Registration
Rights Agreement.  Pursuant to the
Registration Rights Agreement, the Company has agreed for the benefit of the
Holders from time to time of Registrable Notes, at the Company’s expense, to
file an Exchange Offer Registration Statement with respect to an Exchange Offer
to exchange the Notes for Exchange Notes of the Company, which Exchange Notes
will have terms substantially identical in all material respects to the
Notes.  In certain circumstance, the
Company may be required by the terms of the Registration Rights Agreement to
file a Shelf Registration Statement covering resales of the Notes.


 


(b)                                 Any
amounts of Additional Interest due pursuant to the Registration Rights
Agreement shall be payable in cash on the regular Interest Payment Dates.


 


Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Note, such mention shall be deemed to include mention of the payment of
Additional Interest provided for in this Section 4.20.


 


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Section 4.21.  Additional Interest.  If Additional Interest is payable pursuant
to the Registration Rights Agreement, the Company shall deliver to the Trustee
a certificate to that effect stating the amount of such Additional Interest
that is payable.


 


ARTICLE 5



SUCCESSORS


 


Section 5.01.  Merger, Consolidation, or Sale of Assets.  The Company shall not, in a single
transaction or series of related transactions, consolidate or merge with or into
any Person, or sell, assign, transfer, lease, convey or otherwise dispose of
(or cause or permit any Subsidiary of the Company to sell, assign, transfer,
lease, convey or otherwise dispose of) all or substantially all of the
Company’s assets (determined on a consolidated basis for the Company and the Company’s
Subsidiaries) whether as an entirety or substantially as an entirety to any Person
unless:


 


(1)                                  either:


 


(a)                                  the
Company shall be the surviving or continuing corporation; or


 


(b)                                 the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or the Person which acquires by sale, assignment,
transfer, lease, conveyance or other disposition the properties and assets of
the Company and of the Company’s Subsidiaries substantially as an entirety (the
“Surviving
Entity”):


 


(i)                                     shall be a
corporation organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia; and


 


(ii)                                  shall expressly
assume, by supplemental indenture (in form and substance satisfactory to the
Trustee), executed and delivered to the Trustee, the due and punctual payment
of the principal of, and premium, if any, and interest on all of the Notes and
the performance of every covenant of the Notes and this Indenture on the part
of the Company to be performed or observed;


 


(2)                                  immediately
after giving effect to such transaction and the assumption contemplated by
clause (1)(b)(ii) above (including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred in connection with
or in respect of such transaction), the Company or such Surviving Entity, as
the case may be:  (a) shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net


 


56

















 


Worth of the Company immediately prior to such transaction; and
(b) shall be able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.09 hereof; provided,
however,
that this clause (2) shall not apply in the event of a transaction between
the Company and TriNet;


 


(3)                                  immediately
before and immediately after giving effect to such transaction and the
assumption contemplated by clause (1)(b)(ii) above (including, without
limitation, giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred and any Lien granted in connection with
or in respect of the transaction), no Default or Event of Default shall have
occurred or be continuing; and


 


(4)                                  the
Company or the Surviving Entity shall have delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.


 


For purposes of the foregoing, the transfer (by lease, assignment, sale
or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Subsidiaries of
the Company the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.


 


Section 5.02.  Successor Corporation Substituted.  Upon any consolidation or merger, or any
sale, assignment, transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company in accordance with Section 5.01 hereof,
in which the Company is not the continuing corporation, the successor
corporation formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Indenture referring to the “Company” shall
refer instead to the successor corporation and not to the Company), and may
exercise every right and power of, the Company under this Indenture and the
Notes with the same effect as if such successor corporation had been named as
the Company herein; provided, however, that, in the case of a transfer by
lease, the predecessor Company shall not be relieved from the obligation to pay
the principal of and interest on the Notes.


 


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ARTICLE 6



DEFAULTS AND REMEDIES


 


Section 6.01.  Events of Default.  The following are “Events of Default”:


 


(1)                                  the
failure to pay interest on any Notes when the same becomes due and payable and
the default continues for a period of 30 days;


 


(2)                                  the
failure to pay the principal on any Notes, when such principal becomes due and
payable, at maturity, upon redemption or otherwise (including the failure to
make a payment to purchase Notes tendered pursuant to a Change of Control
Offer);


 


(3)                                  a
default in the observance or performance of any other covenant or agreement
contained in this Indenture and such default continues for a period of
30 days after the Company receives written notice specifying the default
(and demanding that such default be remedied) from the Trustee or the Holders
of at least 25% of the outstanding principal amount of the Notes (except in the
case of a default with respect to Section 5.01 hereof, which will
constitute an Event of Default with such notice requirement but without such
passage of time requirement);


 


(4)                                  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 Company or any Subsidiary of the
Company, 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 the Company 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 $20.0 million or more at any time;


 


(5)                                  one
or more judgments in an aggregate amount in excess of $20.0 million shall
have been rendered against the Company or any of its Subsidiaries and such
judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and non-appealable (other than
any judgments as to which, and only to the extent, a reputable insurance company
has acknowledged coverage of such judgments in writing);


 


(6)                                  there
shall have been the entry by a court of competent jurisdiction of:


 


(a)                                  a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Bankruptcy
Law; or


 


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(b)                                 a
decree or order adjudging the Company or any Significant Subsidiary bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any Significant Subsidiary under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall be unstayed
and in effect, for a period of 60 consecutive days; or


 


(7)                                  (a)  the Company or any Significant Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent;


 


(b)                                 the
Company or any Significant Subsidiary consents to the entry of a decree or
order for relief in respect of the Company or such Significant Subsidiary in an
involuntary case or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding against it;


 


(c)                                  the
Company or any Significant Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law;


 


(d)                                 the
Company or any Significant Subsidiary:


 


(i)                                     consents to the
filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or such Significant Subsidiary or of any substantial
part of its property;


 


(ii)                                  makes an assignment
for the benefit of creditors; or


 


(iii)                               admits in writing its
inability to pay its debts generally as they become due; or


 


(e)                                  the
Company or any Significant Subsidiary takes any corporate action in furtherance
of any such actions in this clause (7).


 


Section 6.02.  Acceleration.  If an Event of Default (other than an Event
of Default specified in clauses (6) or (7) above with respect to the
Company) shall occur and be continuing, the Trustee or the Holders of at least
25% in principal amount of outstanding Notes may declare the principal of and
accrued interest on all the Notes to be due and payable by notice in writing to
the Company and the Trustee specifying the respective Event of Default and that
it is a “notice of


 


59

















 


acceleration” (the “Acceleration Notice”), and the same shall
become immediately due and payable.


 


If an Event of Default specified in clauses (6) or (7) above with
respect to the Company occurs and is continuing, then all unpaid principal of,
and premium, if any, and accrued and unpaid interest on all of the outstanding
Notes shall ipso
facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.


 


At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes may rescind and cancel such declaration and its
consequences:


 


(1)                                  if
the rescission would not conflict with any judgment or decree;


 


(2)                                  if
all existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of the acceleration;


 


(3)                                  to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid;


 


(4)                                  if
the Company has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its expenses, disbursements and advances; and


 


(5)                                  in
the event of the cure or waiver of an Event of Default of the type described in
clauses (6) or (7) of Section 6.01 hereof, the Trustee shall have
received an Officers’ Certificate and an Opinion of Counsel that such Event of
Default has been cured or waived.  No
such rescission shall affect any subsequent Default or impair any right consequent
thereto.


 


Section 6.03.  Other Remedies.  If an Event of Default occurs and is continuing,
the Trustee may pursue any available remedy to collect the payment of
principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.


 


The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding.  A delay or omission by the Trustee or any
Holder of a Note in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


Section 6.04.  Waiver of Past Defaults.  Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice in writing to the
Trustee may on behalf of the Holders of all of the Notes waive an existing
Default or Event of Default and its conesquences


 


60

















 


hereunder, except a continuing Default or Event of Default in the
payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with a Change of Control Offer or other offer to
purchase) (provided,
however,
that the Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration).  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


Section 6.05.  Control by Majority.  Holders of a majority in principal amount of
the then outstanding Notes may, by written notice, direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it.  However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may involve the Trustee in any personal liability.


 


Section 6.06.  Limitation on Suits.  A Holder of a Note may pursue a remedy with
respect to this Indenture or the Notes only if:


 


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


 


(b)                                 the
Holders of at least 25% in principal amount of the then outstanding Notes make
a written request to the Trustee to pursue the remedy;


 


(c)                                  such
Holder or Holders offer and, if requested, provide to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;


 


(d)                                 the
Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and


 


(e)                                  during
such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a written direction inconsistent with
the request.


 


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


 


Section 6.07.  Rights of Holders of Notes to Receive
Payment.  Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment
of principal, premium, if any, and interest on the Notes so held, on or after
the respective due dates expressed in the Notes (including in connection with
an offer to purchase), or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without
the consent of such Holder.


 


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Section 6.08.  Collection Suit by Trustee.  If an Event of Default specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee is authorized
to recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal of, premium, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel and
any amounts due the Trustee under Section 7.07 hereof.


 


Section 6.09.  Trustee May File Proofs of Claim.  The Trustee is authorized 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 (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent in writing to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07
hereof.  To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, 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, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or arrangement
or otherwise.  Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or
to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.


 


Section 6.10.  Priorities.  If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:


 


First:  to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;


 


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any and interest, respectively;
and


 


62

















 


Third:  to the Company or to such party as a court
of competent jurisdiction shall direct.


 


The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.


 


Section 6.11.  Undertaking for Costs.  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 a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant.  This
Section does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than
10% in principal amount of the then outstanding Notes.


 


ARTICLE 7



TRUSTEE


 


Section 7.01.  Duties of Trustee.  (a)  If an Event of Default has
occurred and is continuing, 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 its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


(b)                                 Except
during the continuance of an Event of Default:


 


(i)                                     the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and


 


(ii)                                  the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture
in the absence of bad faith on the Trustee’s part; provided, however,
that the Trustee shall examine the certificates and opinions to determine
whether or not they substantially conform to the requirements of this
Indenture.


 


(c)                                  The
Trustee may not be relieved from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:


 


63

















 


(i)                                     this
paragraph does not limit the effect of paragraph (b) of this Section 7.01;


 


(ii)                                  the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;


 


(iii)                               the
Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a written direction received by it
pursuant to Section 6.05; and


 


(iv)                              the
Trustee shall not be required to expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties under this
Indenture or in the exercise of any of its rights or powers, if it has
reasonable grounds to believe repayment of the funds or adequate indemnity
against the risk or liability is not reasonably assured to it.


 


(d)                                 Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee is subject to the provisions of this
Section 7.01 and to the provisions of the TIA.


 


(e)                                  The
Trustee may refuse to perform any duty or exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability or expense.


 


(f)                                    The
Trustee shall not be liable for interest on any money received by it except as
the Trustee may agree in writing with the Company.  Money and Government Securities held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.


 


(g)                                 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 direction of the Holders of
not less than a majority in principal amount of the Notes at the time
outstanding given pursuant to Section 6.05 of this Indenture, 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.


 


Section 7.02.  Rights of Trustee.  (a)  The Trustee may rely on any
document believed by it to be genuine and to have been signed or presented by
the proper Person.  The Trustee need not
investigate any fact or matter stated in the document.


 


(b)                                 Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel that conforms to Section 11.04.  The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers’
Certificate or Opinion of Counsel.


 


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(c)                                  The
Trustee may act through agents and shall not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


(d)                                 The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers, except
conduct that constitutes willful misconduct, negligence or bad faith.


 


(e)                                  The
Trustee may consult with counsel, and the Trustee will not be liable for any
action it takes or omits in reliance on, and in accordance with, written advice
of counsel.


 


(f)                                    The
Trustee will not be required to investigate any facts or matters stated in any
document, but if it decides to investigate any matters or facts, the Trustee or
its agents or attorneys will be entitled to examine the books, records and
premises of the Company.


 


Section 7.03.  Individual Rights of Trustee.  The Trustee in its individual or any other capacity
may become the owner or pledgee of Notes and may otherwise deal with the Company
or any Affiliate of the Company with the same rights it would have if it were
not Trustee.  Any Paying Agent,
Registrar, co-registrar or co-paying agent may do the same with like
rights.  However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.


 


Section 7.04.  Trustee’s Disclaimer.  The Trustee (i) is not responsible for and
makes no representation as to the validity or adequacy of this Indenture, (ii) shall
not be accountable for the Company’s use of the proceeds from the Notes and
(iii) shall not be responsible for any statement of the Company in this
Indenture, other than the Trustee’s certificate of authentication, or in any
prospectus used in the sale of any of the Notes, other than statements, if any,
provided in writing by the Trustee for use in such prospectus.


 


Section 7.05.  Notice of Defaults.  The Trustee will give to the Holders notice
of any Default with regard to the Notes actually known to a Responsible Officer
within 90 days after receipt of such knowledge and in the manner and to the
extent provided in TIA § 313(c), and otherwise as provided in
Section 11.02 of this Indenture; provided, however, that except in the
case of a Default in payment of the principal of, premium, if any, or interest
on any Note, the Trustee will be protected in withholding notice of Default if
and so long as a committee of its Responsible Officers in good faith determines
that withholding of the notice is in the interests of the Holders of the Notes.


 


Section 7.06.  Reports by Trustee.  Within 60 days after each October 15
beginning with the October 15 following the date of this Indenture, the
Trustee will mail to each Holder, at the name and address which appears on the
registration books of the Company, and to each Holder who has, within the two
years preceding the mailing, filed that person’s name and address with the
Trustee for that purpose and each Holder whose name and address have been
furnished to the Trustee pursuant to Section 2.05, a brief report dated as
of that October 15 which complies with TIA § 313(a).  Reports to Noteholders pursuant to this
Section 7.06 shall be transmitted in the


 


65

















 


manner and to the extent provided in TIA § 313(c).  The Trustee also will comply with TIA
§ 313(b).


 


A copy of each report will at the time of its mailing to Holders be
filed with each stock exchange on which the Notes are listed and also with the
SEC.  The Company will promptly notify
the Trustee when the Notes are listed on any stock exchange and of any delisting
of the Notes.


 


Section 7.07.  Compensation and Indemnity.  The Company shall pay to the Trustee from
time to time reasonable compensation for its services.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its
services.  Such expenses shall include
the reasonable compensation and expenses, disbursements and advances of the
Trustee’s agents, counsel, accountants and experts.


 


The Company shall indemnify the Trustee against any and all loss,
liability or expense (including reasonable attorney’s fees) incurred by it in
connection with the administration of the trust created by this Indenture and
the performance of its duties under this Indenture.  The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity.  Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder.  The Company
shall defend the claim and the Trustee may have separate counsel and the Company
shall pay the fees and expenses of such counsel.  The Company need not pay for any settlement made without its
consent.  The Company need not reimburse
any expense or indemnify against any loss, expense or liability incurred by the
Trustee to the extent it is due to the Trustee’s own willful misconduct, negligence
or bad faith.


 


To secure the Company’s obligations to make payments to the Trustee
under this Section 7.07, the Trustee shall have a Lien prior to the Notes
on all money or property held or collected by the Trustee, other than money or
property held in trust to pay principal or interest on particular Notes.  Those obligations of the Company shall
survive the satisfaction and discharge of this Indenture.


 


When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.01(6) or (7) hereof occurs, the expenses and
the compensation for the services of the Trustee are intended to constitute
expenses of administration under any Bankruptcy Law.


 


For purposes of this Section 7.07, “Trustee” will include any
predecessor Trustee, but the willful misconduct, negligence or bad faith of any
Trustee shall not affect the rights of any other Trustee under this
Section 7.07.


 


Section 7.08.  Replacement of Trustee.  The Trustee may resign at any time by so
notifying the Company.  The Holders of a
majority in aggregate principal amount of the then outstanding


 


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Notes may remove the Trustee by so notifying the Trustee and the
Company and may appoint a successor Trustee. 
The Company may remove the Trustee if:


 


(a)                                  the
Trustee fails to comply with Section 7.10;


 


(b)                                 the
Trustee is adjudged bankrupt or insolvent or an order for relief is entered
with respect to the Trustee under any Bankruptcy Law;


 


(c)                                  a
custodian or public officer takes charge of the Trustee or its property; or


 


(d)                                 the
Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.  Within one year
after the successor Trustee takes office, the Holders of a majority in
aggregate principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.


 


No removal or appointment of a Trustee will be valid if that removal or
appointment would conflict with any law applicable to the Company.


 


A successor Trustee will deliver a written acceptance of its
appointment to the retiring Trustee and to the Company.  Immediately after that, the retiring Trustee
will, subject to the Lien provided for in Section 7.07, transfer all
property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee will become effective, and the successor
Trustee will have all the rights, powers and duties of the Trustee under this
Indenture.  A successor Trustee will
mail notice of its succession to each Holder.


 


If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.


 


If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.


 


Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company’s obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.


 


Section 7.09.  Successor Trustee by Merger, etc.  If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust
assets to, another Person, the resulting, surviving or transferee Person will,
without any further act, be the successor Trustee.


 


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If at the time a successor by merger, conversion or consolidation to
the Trustee succeeds to the trusts created by this Indenture any of the Notes
have been authenticated but not delivered, the successor to the Trustee may
adopt the certificate of authentication of the predecessor Trustee, and deliver
the Notes which were authenticated by the predecessor Trustee; and if at that
time any of the Notes have not been authenticated, the successor to the Trustee
may authenticate those Notes in its own name as the successor to the Trustee;
and in either case the certificates of authentication will have the full force
provided in this Indenture for certificates of authentication.


 


Section 7.10.  Eligibility; Disqualification.  The Trustee will at all times satisfy the requirements
of TIA § 310(a).  The Trustee will
at all times have (or shall be a member of a bank holding company system whose
parent corporation has) a combined capital and surplus of at least $50,000,000
as set forth in its most recently published annual report of condition, which
will be deemed for this paragraph to be its combined capital and surplus.  The Trustee will comply with TIA
§ 310(b).


 


Section 7.11.  Preferential Collection of Claims.  The Trustee shall comply with TIA
§ 311(a), excluding any creditor relationship listed in TIA
§ 311(b).  A Trustee who has resigned
or been removed shall be subject to TIA § 311(a) to the extent indicated
therein.


 


ARTICLE 8



LEGAL DEFEASANCE AND COVENANT
DEFEASANCE


 


Section 8.01.  Option to Effect Legal Defeasance or
Covenant Defeasance.  The Company
may, at the option of its Board of Directors evidenced by a Board Resolution
set forth in an Officers’ Certificate, at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.


 


Section 8.02.  Legal Defeasance and Discharge.  Upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.02,
the Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter be deemed to be
“outstanding” only for the purposes of Section 8.05 hereof and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all its other obligations under such Notes and this Indenture (and
the Trustee, on written demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder:  (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set


 


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forth in such Section, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due, (b) the
Company’s obligations with respect to such Notes under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company’s obligations in connection therewith
and (d) this Article 8.  Subject to
compliance with this Article 8, the Company may exercise its option under
this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.


 


Section 8.03.  Covenant Defeasance.  Upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.03,
the Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be released from its obligations under the covenants
contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.14, 4.15, 4.16, 4.17,
4.18 hereof and clause (2) of Section 5.01 hereof with respect to the
outstanding Notes on and after the date the conditions set forth in
Section 8.04 are satisfied (hereinafter, “Covenant Defeasance”), and
the Notes shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be
deemed “outstanding” for all other purposes hereunder (it being understood that
such Notes shall not be deemed outstanding for accounting purposes).  For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.  In addition, upon the
Company’s exercise under Section 8.01 hereof of the option applicable to
this Section 8.03 hereof, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(4) and (5) hereof shall
not constitute Events of Default.


 


Section 8.04.  Conditions to Legal or Covenant Defeasance.  The following shall be the conditions to the
application of either Section 8.02 or 8.03 hereof to the outstanding U.S.
Notes:


 


In order to exercise either Legal Defeasance or Covenant Defeasance:


 


(a)                                  the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in United States dollars, non-callable Government Securities,
or a combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable redemption date, as the
case may be, and any other amounts owing under this Indenture, if in the case
of an optional redemption date prior to electing to exercise either Legal
Defeasance or Covenant Defeasance, the Company has delivered to the Trustee an
irrevocable notice to redeem all of the outstanding Notes on such redemption
date;


 


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(b)                                 in
the case of an election under Section 8.02 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling or
(ii) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;


 


(c)                                  in
the case of an election under Section 8.03 hereof, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders of the outstanding Notes
will not recognize income, gain or loss for federal income tax purposes as a
result of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;


 


(d)                                 no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day after
the date of deposit;


 


(e)                                  such
Legal Defeasance or Covenant Defeasance shall not result in a breach or violation
of, or constitute a default under this Indenture or any other material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound;


 


(f)                                    the
Company shall have delivered to the Trustee an Officers’ Certificate stating
that the deposit was not made by the Company with the intent of preferring the
Holders over any other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the Company
or others;


 


(g)                                 the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or
relating to the Legal Defeasance or the Covenant Defeasance, as the case may
be, have been complied with; and


 


(h)                                 the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that, assuming no intervening bankruptcy of the Company between the date of
deposit and the 91st day following the date of deposit and that no Holder is an
insider of the Company, after the 91st day following the date of deposit, the
trust funds will not be


 


70

















 


subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors’
rights generally.


 


Notwithstanding the foregoing, the opinion of counsel required by
clause (b) above with respect to Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) will become due and payable on the maturity date within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the Company.


 


Section 8.05.  Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous Provisions.  Subject to Section 8.06 hereof, all
money and non-callable Government Securities (including the proceeds thereof)
deposited with the Trustee pursuant to Section 8.04 hereof in respect of
the outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company acting
as Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds
except to the extent required by law.


 


The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or non-callable Government
Securities deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.


 


Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the
amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.


 


Section 8.06.  Repayment to Company.  Any money deposited with the Trustee or any
Paying Agent, or then held by the Company, in trust for the payment of the
principal of, premium, if any, or interest on any Note and remaining unclaimed
for two years after such principal, and premium, if any, or interest has become
due and payable shall be paid to the Company on its written request or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided,
however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York
Times and The Wall Street Journal


 


71

















 


(national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Company.


 


Section 8.07.  Reinstatement.  If the Trustee or Paying Agent is unable to
apply any United States dollars or non-callable Government Securities in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however,
that, if the Company makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the Company
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 9



AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.  Without Consent of Holders of Notes.  Notwithstanding Section 9.02 of this
Indenture, the Company and the Trustee may amend or supplement this Indenture
or the Notes without the consent of any Holder of a Note:


 


(a)                                  to
cure any ambiguity, defect or inconsistency that does not adversely affect in
any material respect the rights hereunder of any Holder of the Notes;


 


(b)                                 to
provide for uncertificated Notes in addition to or in place of certificated
Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;


 


(c)                                  to
provide for the assumption of the Company’s obligations to the Holders by a
successor to the Company pursuant to Article 5 hereof;


 


(d)                                 to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect in any material respect
the rights hereunder of any Holder of the Notes;


 


(e)                                  to
comply with requirements of the SEC in order to effect or maintain the qualification
of this Indenture under the TIA; or


 


72

















 


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


 


Upon the written request of the Company accompanied by, to the extent
necessary, a Board Resolution authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental Indenture
that affects its own rights, duties or immunities under this Indenture or otherwise.


 


Section 9.02.  With Consent of Holders of Notes.  Except as provided below in this
Section 9.02, the Company and the Trustee may amend or supplement this
Indenture (including Section 4.13 hereof), and the Notes with the written
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or
Event of Default (other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the
written consent of the Holders of a majority in principal amount of the then
outstanding Notes voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes).


 


Upon the written request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture directly
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 amended or supplemental Indenture.


 


It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.


 


After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate


 


73

















 


principal amount of the Notes then outstanding voting as a single class
may waive in writing compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. 
However, without the written consent of each Holder affected, an
amendment or waiver under this Section 9.02 may not (with respect to any
Notes held by a non-consenting Holder):


 


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


 


(b)                                 reduce
the rate of or change or have the effect of changing the time for payment of
interest, including defaulted interest, on any Notes;


 


(c)                                  reduce
the principal of or change or have the effect of changing the fixed maturity of
any Notes, or change the date on which any Notes may be subject to redemption
or reduce the redemption price therefor;


 


(d)                                 make
any Notes payable in money other than that stated in the Notes;


 


(e)                                  make
any change in provisions of this Indenture protecting the right of each Holder
to receive payment of principal of and interest on such Note on or after the
due date thereof or to bring suit to enforce such payment, or permitting Holders
of a majority in principal amount of Notes to waive Defaults or Events of
Default;


 


(f)                                    after
the Company’s obligation to purchase Notes arises thereunder, amend, change or
modify in any material respect the obligation of the Company to make and consummate
a Change of Control Offer in the event of a Change of Control or, after such
Change of Control has occurred, modify any of the provisions or definitions
with respect thereto; or


 


(g)                                 modify
or change any provision of this Indenture or the related definitions affecting
the subordination or ranking of the Notes in a manner which adversely affects
the Holders.


 


Section 9.03.  Compliance with Trust Indenture Act.  Every amendment or supplement to this
Indenture or the Notes shall be set forth in a amended or supplemental
Indenture that complies with the TIA as then in effect.


 


Section 9.04.  Revocation and Effect of Consents.  Until an amendment, supplement or waiver
becomes effective, a consent to it by a Holder is a continuing consent by the
Holder of a Note and every subsequent Holder of a Note or portion of a Note
that evidences the same debt as the consenting Holder’s Note, even if notation
of the consent is not made on any Note. 
However, any such Holder or subsequent Holder may revoke the consent as to
its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes


 


74

















 


effective.  An amendment,
supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.


 


Section 9.05.  Notation on or Exchange of Notes.  The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter
authenticated.  The Company in exchange
for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment, supplement
or waiver.


 


Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.


 


Section 9.06.  Trustee to Sign Amendments, etc.  The Trustee shall sign any amended or
supplemental Indenture authorized pursuant to this Article 9 if the amendment
or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  The Company
may not sign an amendment or supplemental Indenture until the Board of
Directors approves it.  In executing any
amended or supplemental Indenture, the Trustee shall be entitled to receive and
(subject to Section 7.01 hereof) shall be fully protected in relying
conclusively upon, in addition to the documents required by Section 11.04
hereof, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental Indenture is authorized or permitted
by this Indenture.


 


ARTICLE 10



SATISFACTION AND DISCHARGE


 


Section 10.01.  Satisfaction and Discharge.  This Indenture will be discharged and will
cease to be of further effect (except as to surviving rights or registration of
transfer or exchange of the Notes, as expressly provided for in this Indenture)
as to all outstanding Notes, when:


 


(a)                                  either:


 


(i)                                     all
the Notes theretofore authenticated and delivered (except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such
trust) have been delivered to the Trustee for cancellation; or


 


(ii)                                  all
Notes not theretofore delivered to the Trustee for cancellation have become due
and payable and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the


 


75

















 


Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together with
irrevocable instructions from the Company directing the Trustee to apply such
funds to the payment thereof at maturity or redemption, as the case may be;


 


(b)                                 the
Company has paid all other sums payable under this Indenture by the Company;
and


 


(c)                                  the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel stating that all conditions precedent under this Indenture relating to
the satisfaction and discharge of this Indenture have been complied with.


 


Section 10.02.  Application of Trust Money.  Subject to the provisions of
Section 8.06, all money deposited with the Trustee pursuant to
Section 10.01 shall be held in trust and applied by it, in accordance with
the provisions of the Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company’s obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to
Section 10.01; provided that if the Company has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.


 


ARTICLE 11



MISCELLANEOUS


 


Section 11.01.  Trust Indenture Act Controls.  If any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by TIA § 318(c), the imposed
duties shall control.


 


Section 11.02.  Notices.  Any notice or communication by the Company
or the Trustee to the others is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day delivery,
to the others’ address:


 


76

















 


If to the Company:


 


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

200 Park Avenue, 52nd Floor

New York, NY  10166-0153

Facsimile:  (212) 878-8375

Attention:  Kathleen L. Werner, Esq.


 


If to the Trustee:


 


U.S. Bank Trust National Association

100 Wall Street, 19th Floor

New York, NY 10005

Attention:  Angelita Pena, Corporate
Trust Department


 


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


 


All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given:  at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.


 


Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar.  Any notice or
communication shall also be so mailed to any Person described in TIA
§ 313(c), to the extent required by the TIA.  Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.


 


If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.


 


If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.


 


77

















 


Section 11.03.  Communication by Holders of Notes with Other
Holders of Notes.  Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect
to their rights under this Indenture or the Notes.  The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).


 


Section 11.04.  Certificate and Opinion as to Conditions
Precedent.  Upon any request
or application by the Company to the Trustee to take any action under this
Indenture, the Company shall furnish to the Trustee:


 


(a)                                  an
Officers’ Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and


 


(b)                                 an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 11.05 hereof)
stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.


 


Section 11.05.  Statements Required in Certificate or
Opinion.  Each certificate or
opinion with respect to compliance with a condition or covenant provided for in
this Indenture (other than a certificate provided pursuant to TIA
§ 314(a)(4)) shall comply with the provisions of TIA § 314(e) and
shall include:


 


(a)                                  a
statement that the Person making such certificate or opinion has read such
covenant or condition;


 


(b)                                 a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;


 


(c)                                  a
statement that, in the opinion of such Person, he or she has made such examination
or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been satisfied; and


 


(d)                                 a
statement as to whether or not, in the opinion of such Person, such condition
or covenant has been satisfied.


 


Section 11.06.  Rules by Trustee and Agents.  The Trustee may make reasonable rules for
action by or at a meeting of Holders. 
The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.


 


Section 11.07.  No Personal Liability of Directors,
Officers, Employees and Stockholders.  No past, present or future director, officer, employee,
incorporator or stockholder of the Company,


 


78

















 


as such, shall have any liability for any obligations of the Company
under the Notes, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


Section 11.08.  Governing Law.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


 


Section 11.09.  No Adverse Interpretation of Other
Agreements.  This Indenture
may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person.  Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.


 


Section 11.10.  Successors.  All agreements of the Company in this
Indenture and the Notes shall bind its successors.  All agreements of the Trustee in this Indenture shall bind its successors.


 


Section 11.11.  Severability.  In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


 


Section 11.12.  Counterpart Originals.  The parties may sign any number of copies of
this Indenture.  Each signed copy shall
be an original, but all of them together represent the same agreement.


 


Section 11.13.  Table of Contents, Headings, etc.  The Table of Contents, Cross-Reference Table
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 of this
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.


 


[Signatures on following page]


 


79

















 


SIGNATURES


 


	
  Dated as of January 23, 2004

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  iSTAR FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK TRUST NATIONAL ASSOCIATION,

  not in its individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


[Face of Note]


 


[Insert the Global Note Legend and/or Private Placement Legend, if
applicable pursuant to the

provisions of the Indenture]


 


CUSIP/CINS
[                    ]


 


4.875% Senior Notes due 2009


 


	
  No.       

  	
   

  	
   

  	
  $

  



 


iSTAR FINANCIAL INC.


 


promises to pay to
                                                            ,
or registered assigns, the principal sum of


 


Dollars on January 15, 2009.


 


Interest Payment Dates: 
January 15 and July 15


 


Record Dates:  January 1
and July 1


 


Dated: 
[                    ]


 


	
   

  	
  iSTAR FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  SEAL

  	
   

  
	
   

  	
   

  
	
  This is one of the Notes referred to

  	
   

  
	
  in the within-mentioned Indenture:

  	
   

  
	
   

  	
   

  
	
  U.S. BANK TRUST NATIONAL ASSOCIATION

  as Trustee

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  
					



 

















 


[Back of Note]

4.875% Senior Notes due 2009


 


Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.


 


1.  INTEREST.  iStar Financial Inc., a Maryland corporation
(the “Company”),
promises to pay interest on the principal amount of this Note at 4.875% per
annum from January 23, 2004 until maturity.  The Company will pay interest semi-annually in arrears on
January 15 and July 15 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest
Payment Date”).  Interest on
the Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from January 23, 2004; provided
that if there is no existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on the face hereof and
the next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first
Interest Payment Date shall be July 15, 2004.  The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium,
if any, from time to time on demand at the rate then in effect; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful.  Interest will be
computed on the basis of a 360-day year of twelve 30-day months.


 


2.  METHOD OF PAYMENT.  The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the January 1 and July 1 next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest.  The Notes will be payable as to principal,
premium, if any, and interest at the office or agency of the Company maintained
for such purpose within or without the City and State of New York, or, at the
option of the Company, payment of interest may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, and premium, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire
transfer instructions to the Company or the Paying Agent.  Such payment shall be in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.  The Company reserves the right to pay interest to Holders of
Notes by check mailed to such Holders at their registered addresses or by wire
transfer to Holders of at least $5 million aggregate principal amount of Notes.


 


3.  PAYING AGENT AND REGISTRAR.  Initially, U.S. Bank Trust National Association,
the Trustee under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying Agent or
Registrar without notice to any Holder. 
The Company or any of its Subsidiaries may act in any such capacity.


 


A-2

















 


4.  INDENTURE.  The Company issued the Notes under an
Indenture dated as of January 23, 2004 (the “Indenture”) between the
Company and the Trustee.  The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code §§ 77aaa-77bbbb).  The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. 
To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and
be controlling.  The Notes are obligations
of the Company.  The Company is issuing
$350.0 million in aggregate principal amount on the Issue Date and may issue
Additional Notes in accordance with the terms of the Indenture.


 


5.  OPTIONAL REDEMPTION.


 


At any time on or prior to January 15, 2009, the Notes may be
redeemed or purchased in whole but not in part at the Company’s option at a
price equal to 100% of the principal amount thereof plus the Applicable Premium
as of, and accrued but unpaid interest, if any, to, the date of redemption or
purchase (the “Redemption Date”) (subject to the right of Holders of record
on the relevant record date to receive interest due on the relevant interest
payment date).  Such redemption or
purchase may be made upon notice mailed by first-class mail to each Holder’s
registered address, not less than 30 nor more than 60 days prior to the
Redemption Date.


 


“Applicable
Premium” means, with respect to a Note at any Redemption Date, the
greater of:  (1) 1.0% of the
principal amount of such Note; and (2) the excess of (a) the present value
at such Redemption Date of (i) the redemption price of such Note on
January 15, 2009 plus (ii) all required remaining scheduled interest
payments due on such Note through January 15, 2009, computed using a
discount rate equal to the Treasury Rate plus 50 basis points; over
(b) the principal amount of such Note on such Redemption Date.  Calculation of the Applicable Premium will
be made by the Company or on behalf of the Company by such Person as the
Company shall designate; provided, however, that such
calculation shall not be a duty or obligation of the Trustee.


 


“Treasury
Rate” means, with respect to a Redemption Date, the yield to maturity
at the time of computation of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15(519) that has become publicly available at least
two Business Days prior to such Redemption Date (or, if such Statistical
Release is no longer published, any publicly available source of similar market
data)) most nearly equal to the period from such Redemption Date to
January 15, 2009; provided, however, that if the period
from such Redemption Date to January 15, 2009 is not equal to the constant
maturity of the United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given,
except that if the period from such Redemption Date to January 15, 2009 is
less than one year, the weekly average yield on actually traded United States
Treasury securities adjusted to a constant maturity of one year shall be used.


 


A-3

















 


6.  MANDATORY REDEMPTION.


 


Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.


 


7.  REPURCHASE AT OPTION OF HOLDER.


 


Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Notes at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase.


 


8.  NOTICE OF REDEMPTION.  Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address.  Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of
the Notes held by a Holder are to be redeemed. 
On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.


 


9.  DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons
in denominations of $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company and the Trustee may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. 
The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part.  Also,
the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.


 


10.  PERSONS DEEMED OWNERS.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


11.  AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions, the Indenture
or the Notes may be amended or supplemented with the written consent of the
Holders of at least a majority in principal amount of the then outstanding
Notes voting as a single class, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the written consent
of the Holders of a majority in principal amount of the then outstanding Notes
voting as a single class.  Without the
consent of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company’s obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not adversely
affect in any material respects the rights under the Indenture of any such
Holder, to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act or to
evidence and provide for the acceptance of appointment under the Indenture of a
successor Trustee.


 


A-4

















 


12.  DEFAULTS AND REMEDIES.  Events of Default are set forth in the Indenture.  If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.  Notwithstanding the foregoing, in the case
of an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes will become due and payable without further action or
notice.  Holders may not enforce the
Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a
majority in principal amount of the then outstanding Notes may direct the
Trustee in writing in its exercise of any trust or power.  The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.  The Holders of a majority in aggregate
principal amount of the Notes then outstanding by written notice to the Trustee
may on behalf of the Holders of all of the Notes waive any existing Default or
Event of Default and its consequences under the Indenture except a continuing
Default or Event of Default in the payment of interest on, or the principal of,
the Notes.  The Company is required to
deliver to the Trustee annually a statement regarding compliance with the Indenture,
and the Company is required upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or Event
of Default.


 


13.  TRUSTEE DEALINGS WITH COMPANY.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.


 


14.  NO RECOURSE AGAINST OTHERS.  A director, officer, employee, incorporator
or stockholder, of the Company, as such, shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their
creation.  Each Holder by accepting a
Note waives and releases all such liability. 
The waiver and release are part of the consideration for the issuance of
the Notes.


 


15.  AUTHENTICATION.  This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


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


 


17.  CUSIP NUMBERS.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders.  No representation is made as to the accuracy
of such numbers either as printed on the Notes or as contained in any notice of
redemption and reliance may be placed only on the other identification numbers
placed thereon.


 


A-5

















 


18.  ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of January 23, 2004, between the
Company and the parties named on the signature pages thereof (the “Registration
Rights Agreement”).


 


A-6

















 


The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.  Requests may be made to:


 


iStar Financial Inc.


1114 Avenue of the Americas, 27th Floor


New York, NY  10036


Attention:  Investor Relations


 


A-7

















 


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 Company.  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-8

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by the Company
pursuant to Section 4.13 of the Indenture, check the following box :  o


 


If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.13 of the Indenture, state the amount you
elect to have purchased:


 


$


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears

  on the face of this Note)

  
	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
							



 


 












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


 


A-9

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE
GLOBAL NOTE


 


The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note,
have been made:


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount

  of this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global Note

  	
   

  	
  Principal
  Amount

  of this Global Note

  following such de-

  crease

  (or increase)

  	
   

  	
  Signature
  of au-

  thorized officer of

  Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:                               4.875% Senior Notes
due 2009


 


Reference is hereby made to the Indenture, dated as of January 23,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


                                    ,
(the “Transferor”)
owns and proposes to transfer the Note[s] or interest in such Note[s] specified
in Annex A hereto, in the principal amount of
$                       
in such Note[s] or interests (the “Transfer”), to
                                              
(the “Transferee”),
as further specified in Annex A hereto. 
In connection with the Transfer, the Transferor hereby certifies that:


 


[CHECK ALL THAT APPLY]


 


1.  o  Check if Transferee will take delivery of a beneficial
interest in the 144A Global Note or a Definitive Note Pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the “Securities Act”), and, accordingly, the
Transferor hereby further certifies that the beneficial interest or Definitive
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Definitive Note for its
own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a “qualified institutional buyer” within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the
United States.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the applicable 144A Global Note and/or the applicable Definitive Note and in
the Indenture and the Securities Act.


 


2.  o  Check if Transferee will take delivery of a beneficial
interest in the Regulation S Global Note or a Definitive Note pursuant to
Regulation S.  The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and,


 


B-1

















 


accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a person in the United States and (x) at the time
the buy order was originated, the Transferee was outside the United States or
such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act and (iii) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.  Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the applicable Regulation
S Global Note and/or the applicable Definitive Note and in the Indenture and
the Securities Act.


 


3.  o  Check and complete if Transferee will take delivery of
a beneficial interest in the IAI Global Note or a Definitive Note pursuant to
any provision of the Securities Act other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further
certifies that (check one):


 


(a)                                              o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)                                             o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)                                              o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)                                             o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144
or Rule 904, and the Transferor hereby further certifies that it has not
engaged in any general solicitation within the meaning of Regulation D under
the Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate


 


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executed by the Transferee in the form of
Exhibit D to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect that
such Transfer is in compliance with the Securities Act.  Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the applicable IAI Global Note
and/or the applicable Definitive Notes and in the Indenture and the Securities
Act.


 


4.  o  Check if Transferee will take delivery of a beneficial
interest in an Unrestricted Global Note or of an Unrestricted Definitive Note.


 


(a)  o  Check if Transfer is pursuant to Rule 144.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 144 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)  o  Check if Transfer is Pursuant to Regulation S.  (i) The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any state of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act.  Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.


 


(c)  o  Check if Transfer is Pursuant to Other Exemption.  (i) The Transfer is being effected pursuant
to and in compliance with an exemption from the registration requirements of
the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance
with the transfer restrictions contained in the Indenture and any applicable
blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will not be subject to the restrictions
on transfer enumerated in the


 


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Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.


 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.


 


	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.                                       The
Transferor owns and proposes to transfer the following:


 


[CHECK ONE OF (a) OR (b)]


 


(a)  o  a beneficial interest in the:


 


(i)                                               o  144A Global Note (CUSIP
                  ),
or


 


(ii)                                            o  Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                                         o  IAI Global Note (CUSIP
                );
or


 


(b)  o  a Restricted Definitive Note.


 


2.                                       After
the Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)  o  a beneficial interest in the:


 


(i)                                               o  144A Global Note (CUSIP
                 ),
or


 


(ii)                                            o  Regulation S Global Note (CUSIP
                  ),
or


 


(iii)                                         o  IAI Global Note (CUSIP 
                 ),
or


 


(iv)                                        o  Unrestricted Global Note (CUSIP
                 );
or


 


(b)  o  a Restricted Definitive Note; or


 


(c)  o  an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:                               4.875% Senior Notes
due 2008


 


(CUSIP
                )


 


Reference is hereby made to the Indenture, dated as of January 23,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


                                               ,
(the “Owner”)
owns and proposes to exchange the Note[s] or interest in such Note[s] specified
in Annex A hereto, in the principal amount of
$                     
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner hereby certifies that:


 


1.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an
Unrestricted Global Note


 


(a)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note.  In connection with the Exchange of the
Owner’s beneficial interest in a Restricted Global Note for a beneficial
interest in an Unrestricted Global Note in an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and
pursuant to and in accordance with the United States Securities Act of 1933, as
amended (the “Securities Act”), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.


 


(b)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the
Owner’s


 


C-1

















 


beneficial interest in a Restricted Global
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer,
(ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


(c)  o Check if Exchange is from Restricted Definitive Note
to beneficial interest in an Unrestricted Global Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


(d)  o  Check if Exchange is from Restricted Definitive Note
to Unrestricted Definitive Note. 
In connection with the Owner’s Exchange of a Restricted Definitive Note
for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owner’s own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


2.                                       Exchange
of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes


 


(a)  o  Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.


 


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(b)  o  Check if Exchange is from Restricted Definitive Note
to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the
Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]
 ̈ 144A Global Note,  ̈ Regulation S Global Note,   ̈ IAI Global Note with an equal principal amount, the Owner
hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer and (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the
United States.  Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the relevant Restricted Global Note and
in the Indenture and the Securities Act.


 


C-3

















 


This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.


 


	
   

  	
  [Insert Name of Owner]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-4

















 


ANNEX A TO CERTIFICATE OF EXCHANGE


 


1.                                       The
Owner currently owns and proposes to exchange the following:


 


[CHECK ONE]


 


(a)                                  o                                    a
beneficial interest in the:


 


(i)                                     o                                    144A
Global Note (CUSIP
           ), or


 


(ii)                                  o                                    Regulation S
Global Note (CUSIP
            ), or


 


(iii)                               o                                    IAI
Global Note (CUSIP
            ), or


 


(b)                                 o                                    a
Restricted Definitive Note.


 


2.                                       After
the exchange the Owner will hold:


 


[CHECK ONE]


 


(a)                                  a beneficial interest
in the:


 


(i)                                     o                                    144A
Global Note (CUSIP
            ), or


 


(ii)                                  o                                    Regulation S
Global Note (CUSIP
            ), or


 


(iii)                               o                                    IAI
Global Note (CUSIP
            ), or


 


(iv)                              o                                                                                    Unrestricted
Global Note (CUSIP
            ), or


 


(b)                                 o                                    a
Restricted Definitive Note; or


 


(c)                                  o                                    an
Unrestricted Definitive Note.


 


3.                                       The
Owner requests that Definitive Notes be registered in the following name:


 


 


and sent to the Owner at the following address:


 


 


 


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EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:                               4.875%
Senior Notes due 2008


 


Reference is hereby made to the Indenture, dated as of January 23,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


In connection with our proposed purchase of
$                      
aggregate principal amount of:


 


(a)  o  a beneficial interest in a Global Note, or


 


(b)  o  a Definitive Note,


 


we confirm that:


 


1.                                       We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the United States Securities Act of 1933, as
amended (the “Securities Act”).


 


2.                                       We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the Company
or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to
such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and, if such transfer is in respect of a principal amount
of Notes, at the time of transfer of less than $250,000, an Opinion of Counsel
in form reasonably acceptable to the Company to the effect that such transfer
is in compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F)


 


D-1

















 


pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing the Definitive
Note or beneficial interest in a Global Note from us in a transaction meeting
the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.


 


3.                                       We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.                                       We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act) and have such knowledge
and experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any accounts
for which we are acting are each able to bear the economic risk of our or its
investment.


 


5.                                       We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional
“accredited investor”) as to each of which we exercise sole investment
discretion.


 


You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.


 


	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


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