Exhibit
4.3




 





 


iSTAR FINANCIAL
INC.


5.70% NOTES DUE
2014






SUPPLEMENTAL
INDENTURE NO. 1


Dated as of
January 9, 2007






US BANK TRUST
NATIONAL 

ASSOCIATION


Trustee






 




 






















SUPPLEMENTAL INDENTURE NO. 1, dated as of January 9,
2007 between iStar Financial Inc., a Maryland corporation (the “Company”), and US Bank Trust National Association, as
trustee (the “Trustee”).


The Company has
heretofore delivered to the Trustee an Indenture dated as of March 9, 2004 (the
“Indenture”), relating to the issuance of the Company’s 5.70% Senior Notes due
2014 (the “2014 Notes”).


The Board of
Directors of the Company has duly adopted resolutions authorizing the Company
to execute and deliver this Supplemental Indenture.


Pursuant to a
Consent Solicitation Statement, dated December 20, 2006 (the “Consent
Solicitation”), the Company solicited consents from the holders of the 2014
Notes to amend the Indenture (the “Amendments”).   The Company certifies to the Trustee that it
has received consents from a majority of the holders of the 2014 Notes to the
Amendments.


Therefore, the
Company and the Trustee desire to enter into this Supplemental Indenture No. 1,
for the benefit of each other and for the equal and ratable benefit of the
Holders of the 2014 Notes to give effect to the Amendments.


NOW,
THEREFORE, IT IS AGREED:


ARTICLE ONE


DEFINITIONS


Section 1.01. 
Defined Terms.  Capitalized
terms used in this Supplemental Indenture shall have the meanings ascribed to
them in the Indenture, as amended by the Amendments.


ARTICLE TWO


AMENDMENTS


Section 2.01. 
Amendments.  Article
1 “Definitions and Incorporation By Reference” and Article 4 “Covenants” of the
Indenture are hereby amended and restated in their entirety as set forth in
Annex A and Annex B hereto.


Section 2.02.  Inapplicable References
Deleted.  References to (i)
sections and (ii) defined terms throughout the Indenture that are no longer
relevant as a result of the Amendments shall be deemed deleted.



  
  
 






 



ARTICLE
THREE


MISCELLANEOUS


Section 3.01.  Operative Amendments.  Although this Supplemental Indenture No. 1 is
dated as of January 9, 2007, and will become effective when it is executed,
this Supplemental Indenture will not become operative until the Company accepts
and pays for all consents tendered pursuant to the Consent Solicitation.


Section 3.02.  Supplement to the
Indenture.  This Supplemental
Indenture No. 1 is executed and shall be construed as an indenture supplemental
to the Indenture, is in all respects ratified and confirmed, and the Indenture
shall be read, taken and construed as one and the same instrument.


Section 3.03.  Binding Effect.  All of the covenants, promises,
stipulations and agreements of the Company contained in this Supplemental
Indenture No. 1, will bind the Company and its successors and assigns and will
inure to the benefit of the Trustee and its successors and assigns.  In the event of any assignment or transfer by
the Trustee of the Indenture, as supplemented and modified by this Supplemental
Indenture No. 1, the term “Trustee,” as used in the Indenture, as so
supplemented and modified, will be deemed to mean any such assignee or
transferee.


Section 3.04.  Execution and
Delivery.  The Company shall
execute and deliver any other documents or agreements, and take any other
actions, at its own cost and expense, which the Trustee or its counsel may from
time to time request in order to assure the Trustee of the benefits of the
rights granted to the Trustee under this Supplemental Indenture No. 1.


Section 3.05  The Trustee.  The
Trustee shall not be responsible in any manner whatsoever for or in respect of
the validity or sufficiency of this Supplemental Indenture No. 1 or the due
execution thereof by the Company. The recitals of fact contained herein shall
be taken as the statements solely of the Company, and the Trustee assumes no
responsibility for the correctness thereof.


Section 3.06.  Governing Law.  This Supplemental Indenture No. 1
shall be governed by and construed in accordance with the laws of the State of
New York but without giving effect to any principles of conflicts of law to the
extent they would require the application of the laws of another jurisdiction.


Section 3.07.  Counterpart
Originals.  This Supplemental
Indenture No. 1 may be executed in any number of counterparts, each of which
counterparts will for all purposes be deemed to be an original, but all of
which counterparts shall together constitute one and the same instrument.


[Signatures on
following page]



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SIGNATURES


Dated as of January 9,
2007


	
  

  	
  iSTAR FINANCIAL
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  

  	
  By:

  	
  /s/ Catherine D.
  Rice

  	
   

  
	
   

  	
   

  	
  Name: Catherine
  D. Rice

  
	
   

  	
   

  	
  Title:   Chief
  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  US BANK TRUST
  NATIONAL ASSOCIATION, not

  in its individual capacity, but solely as Trustee

  
	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  

  	
  By:

  	
  /s/ Paul
  Scmalzel

  	
   

  
	
   

  	
   

  	
  Name: Paul
  Scmalzel

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 



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Annex A


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 4.07.


“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




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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) 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.


“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;


(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 



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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, 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.


“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, depletion
and amortization;


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



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“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
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:



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(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 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 (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;


(4)                                  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;


(5)                                  any
restoration to income of any contingency reserve of an extraordinary,
nonrecurring or unusual nature;


(6)                                  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)                                  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.



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“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, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is
redeemable at the sole option of the holder thereof 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 5.70% Senior Notes due 2014 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.



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“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.


“Fitch” means Fitch Ratings or any successor
agency.


“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.  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 



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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;


(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 



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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.


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


“Initial Notes”
means the $250.0 million principal amount of 5.70% Senior Notes due 2014 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 March 1 and September 1 of each year
commencing September 1, 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.


“Issue Date”
means March 9, 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 at Stated Maturity
by declaration of acceleration, call for redemption, purchase or otherwise.


“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 



 A-12
 






 



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).


“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 



 A-13
 






 



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 4.875% Senior Notes due 2009 that were issued on January
23, 2004, (c) the Company’s $350.0 million aggregate principal amount of 6.0%
Senior Notes due 2010 that were issued on December 12, 2003, (d) the Company’s
$150.0 million aggregate principal amount of 6.5% Senior Notes due 2013 that
were issued on December 12, 2003, (e) the Company’s $350.0 million aggregate
principal amount of 83⁄4% Senior Notes due 2008 that were issued on the Issue Date
and (f) the $185.0 million aggregate principal amount of 7.0% Senior Notes due
2008 that were issued in March and April of 2003;


(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 Issue Date
and as in effect on the Issue 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 Issue 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;



 A-14
 






 



(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;


(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.


“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.


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


“Rating Agencies” means S&P, Moody’s and
Fitch.



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“Redemption Date” has the meaning given such
term in Section 3.07.


“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 4.07
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.


“Representative Amount” means a principal
amount of not less than U.S. $1,000,000 for a single transaction in the
relevant market at the relevant time.


“Responsible Officer” means, when used with
respect to the Trustee, any vice president, assistant vice president, assistant
treasurer, trust officer 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.



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“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.


“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.


“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.



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“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.


“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

  
	
   

  	
   

  	
   

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Change of
  Control Date”

  	
   

  	
  4.10

  
	
  “Change of
  Control Payment Date”

  	
   

  	
  4.10

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.10

  
	
  “Change of
  Control Purchase Date”

  	
   

  	
  4.10

  
	
  “Change of
  Control Purchase Price”

  	
   

  	
  4.10

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  
	
  “incur”

  	
   

  	
  4.07

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Surviving Entity”

  	
   

  	
  5.01

  



 


 



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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.


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.



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Annex B


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 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 



 A-20
 






 



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 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.    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.


(a)          The Company shall, so
long as any of the Notes are outstanding, promptly 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 Incurrence of Additional Indebtedness. 
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, 



 A-21
 






 



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.


Section 4.08:                             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 4.09:                             Maintenance
of Total Unencumbered Assets.  The
Company and its Subsidiaries shall maintain Total Unencumbered Assets of not
less than 120% of the aggregate outstanding principal amount of the Unsecured
Indebtedness of the Company and its Subsidiaries, in each case on a
consolidated basis.


Section 4.10:                             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 4.10 (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 4.10 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 



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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;


(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 4.10. 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 4.10, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section 4.10 by virtue
thereof.


Section 4.11:                             Termination
of Certain Covenants if Certain Ratings are Assigned.  The obligations under the covenants contained
in Sections 4.07 and 4.09 hereof shall cease to apply to the Company in
the event, and only for so long as, (1) the Notes are rated BBB or Baa2,
or higher by at least two of the three Rating Agencies, and (2) no Default
or Event of Default has occurred and is continuing.


Section 4.12:                             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 4.11 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 



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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 4.13:                             Registration
Rights.  (d)  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.


(e)          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 4.12.


Section 4.14:                             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.



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