Exhibit
4.5




 





 


iSTAR FINANCIAL
INC.


6.000% NOTES DUE
2010






SUPPLEMENTAL
INDENTURE NO. 14

(containing amendments to Supplemental

Indenture No. 3, as defined herein)


Dated as of
January 9, 2007






US BANK TRUST
NATIONAL 

ASSOCIATION


Trustee








 


 




















SUPPLEMENTAL INDENTURE NO. 14, 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 February 5, 2001 (the “Indenture”), a form of which
has been filed with the Securities and Exchange Commission (the “SEC”) under
the Securities Act as an exhibit to the Company’s Registration Statement on
Form S-3 (Registration No. 333-124795), providing for the issuance from time to
time of debt securities of the Company, as well as a Third Supplemental
Indenture to the Indenture, dated December 12, 2003 (“Supplemental Indenture
No. 3”), relating to the issuance of the Company’s 6.000% Senior Notes due 2010
(the “2010 Notes”), which has been filed with the SEC as an exhibit to the
Company’s Form 8-K filed on December 12, 2003.


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 2010 Notes to amend the Indenture, as supplemented by
Supplemental Indenture No. 3 (the “Amendments”).   The Company certifies to the Trustee that it
has received consents from a majority of the holders of the 2010 Notes to the
Amendments.


Therefore, the
Company and the Trustee desire to enter into this Supplemental Indenture No.
14, for the benefit of each other and for the equal and ratable benefit of the
Holders of the 2010 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 supplemented by Supplemental Indenture No. 3, in the
case of the 2010 Notes, and as amended by the Amendments.


ARTICLE TWO


AMENDMENTS


Section 2.01. 
Amendments.  Article
1 “Definitions and Incorporation By Reference” and Article 4 “Covenants” of
Supplemental Indenture No. 3 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 Supplemental Indenture No. 3 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. 14
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 Supplemental
Indenture No. 3.  This
Supplemental Indenture No. 14 is executed and shall be construed as an
indenture supplemental to the Indenture, as supplemented and modified hereby,
is in all respects ratified and confirmed, and the Indenture, as so
supplemented and modified, 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. 14, and in Supplemental Indenture No. 3, as supplemented and modified by
this Supplemental Indenture No. 14, 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. 14, 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. 14.


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. 14 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. 14
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. 14 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 Notes”
means additional Notes (other than the Initial Notes) issued under this
Supplemental Indenture in accordance with Section 2.02 [Execution and
Authentication] and 4.07 [Limitation on Restricted Payments].


“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.



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“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.


“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
Supplemental 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 Supplemental 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



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(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.


“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



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(2)           the
amount of all dividend payments on any series of Preferred Stock of such Person
and, to the extent permitted under this Supplemental 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 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



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(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.


“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 Supplemental 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.


“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



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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 4.07 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.


 “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 rating 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 Supplemental Indenture.


“Global Notes”
means, individually and collectively, the 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 Supplemental 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
Supplemental Indenture.


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


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


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



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(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
Supplemental 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 the Indenture dated as of February 5, 2001 between the Company and
the Trustee 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 $350.0 million principal amount of
6.0% Senior Notes due 2010 of the Company issued on the Issue Date


“Interest Payment Date” means June 15 and December 15 of each
year commencing June 15, 2004.



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“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 December 12, 2003, 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
Supplemental Indenture, whether at Stated Maturity or on a redemption date, and
whether by declaration of acceleration, call for redemption, purchase or
otherwise.


“Moody’s” means
Moody’s Investor 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



 A-11
 






 



(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
Supplemental 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 Supplemental 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 Supplemental
Indenture relating thereto and (ii) a statement as to whether, in the
opinion of the signers, such conditions have been complied with.


“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, a Person who has an account with the
Depositary.


“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 the Initial Notes and under the Company’s $150.0 million aggregate
principal amount of 6.5% Senior Notes due 2013 that were issued on December 12,
2003, the Company’s $350.0 million aggregate principal amount of 8 3/4% Senior
Notes due 2008 that were issued on the Issue Date and the $185.0 million
aggregate principal amount of 7.0% Senior Notes due 2008;


(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;



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(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 Supplemental 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 Supplemental 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 4.07 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



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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.


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


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


“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.


“REIT” means
Real Estate Investment Trust.


“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.


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



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


“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.


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


“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.


“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 on the
third Business Day prior to our providing notice of redemption (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 the maturity date; provided, however,
that if the period from such Redemption Date to the maturity date 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 the
maturity date 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.


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



 A-15
 






 



“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.


“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

  	
   

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event
  of Default”

  	
   

  	
  6.01

  	
   

  
	
  “incur”

  	
   

  	
  4.07

  	
   

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  	
   

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Surviving Entity”

  	
   

  	
  5.01

  	
   

  



 


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


All terms used in this Supplemental 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;



 A-16
 






 



(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.



 A-17
 






 



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 Supplemental 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



 A-18
 






 



the Company and its
Subsidiaries) and, with respect to the annual information only, a report
thereon by the Company’s independent registered public accounting firm; 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. 
(g)  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 Supplemental 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 Supplemental Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Supplemental
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.


(h)   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 Supplemental
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, become



 A-19
 






 



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 1.5 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.          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 following three
rating agencies:  S&P, Moody’s and
Fitch and (2) no Default or Event of Default has occurred and is
continuing.


Section 4.11.          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
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
Supplemental Indenture.


(i)    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.



 A-20
 






 



(j)    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.



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