Exhibit 4.1


 


SL GREEN OPERATING PARTNERSHIP,
L.P., as Issuer,


 


RECKSON OPERATING PARTNERSHIP,
L.P., as Guarantor,


 


SL GREEN REALTY CORP., and


 


THE BANK OF NEW YORK MELLON, as
Trustee


 






 


INDENTURE


 


Dated as of

October 12, 2010


 






 


3.00% Exchangeable Senior Notes
due 2017


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF
  NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Designation Amount and Issue of
  Notes

  	
  11

  
	
  Section 2.02.

  	
  Form of Notes

  	
  11

  
	
  Section 2.03.

  	
  Date and Denomination of Notes;
  Payments of Interest

  	
  12

  
	
  Section 2.04.

  	
  Execution of Notes

  	
  14

  
	
  Section 2.05.

  	
  Exchange and Registration of
  Transfer of Notes; Restrictions on Transfer

  	
  14

  
	
  Section 2.06.

  	
  Mutilated, Destroyed, Lost or
  Stolen Notes

  	
  19

  
	
  Section 2.07.

  	
  Temporary Notes

  	
  20

  
	
  Section 2.08.

  	
  Cancellation of Notes

  	
  21

  
	
  Section 2.09.

  	
  CUSIP Numbers

  	
  21

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Redemption of Notes

  	
  21

  
	
  Section 3.02.

  	
  Notice of Optional Redemption;
  Selection of Notes

  	
  22

  
	
  Section 3.03.

  	
  Payment of Notes Called for
  Redemption by the Issuer

  	
  23

  
	
  Section 3.04.

  	
  Sinking Fund

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  REPURCHASE OF NOTES UPON A DESIGNATED EVENT

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Repurchase at Option of Holders
  Upon a Designated Event

  	
  24

  
	
  Section 4.02.

  	
  Issuer Designated Event Repurchase
  Notice

  	
  26

  
	
  Section 4.03.

  	
  Effect of Designated Event
  Repurchase Notice; Withdrawal

  	
  27

  
	
  Section 4.04.

  	
  Deposit of Designated Event
  Repurchase Price

  	
  28

  
	
  Section 4.05.

  	
  Notes Repurchased in Part

  	
  28

  
	
  Section 4.06.

  	
  Repayment to the Issuer

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  PARTICULAR COVENANTS OF THE ISSUER

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Payment of Principal, Premium and
  Interest

  	
  29

  
	
  Section 5.02.

  	
  Maintenance of Office or Agency

  	
  29

  
	
  Section 5.03.

  	
  Appointments to Fill Vacancies in
  Trustee’s Office

  	
  29

  
	
  Section 5.04.

  	
  Provisions as to Paying Agent

  	
  29

  
	
  Section 5.05.

  	
  Existence

  	
  30

  
	
  Section 5.06.

  	
  Stay, Extension and Usury Laws

  	
  31

  
	
  Section 5.07.

  	
  Compliance Certificate

  	
  31

  
	
  Section 5.08.

  	
  Additional Interest Notice

  	
  31

  



 


i

















 


	
  ARTICLE 6

  
	
  NOTEHOLDERS’ LISTS AND REPORTS BY THE ISSUER AND THE
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Noteholders’ Lists

  	
  32

  
	
  Section 6.02.

  	
  Preservation and Disclosure of
  Lists

  	
  32

  
	
  Section 6.03.

  	
  Reports by Trustee

  	
  32

  
	
  Section 6.04.

  	
  Reports by Issuer

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF
  DEFAULT

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Events of Default

  	
  33

  
	
  Section 7.02.

  	
  Payments of Notes on Default; Suit
  Therefor

  	
  36

  
	
  Section 7.03.

  	
  Application of Monies Collected by
  Trustee

  	
  37

  
	
  Section 7.04.

  	
  Proceedings by Noteholders

  	
  37

  
	
  Section 7.05.

  	
  Proceedings by Trustee

  	
  38

  
	
  Section 7.06.

  	
  Remedies Cumulative and Continuing

  	
  38

  
	
  Section 7.07.

  	
  Direction of Proceedings and Waiver
  of Defaults by Majority of Noteholders

  	
  39

  
	
  Section 7.08.

  	
  Undertaking to Pay Costs

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  THE TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Notice of Defaults

  	
  40

  
	
  Section 8.02.

  	
  Certain Rights of Trustee

  	
  40

  
	
  Section 8.03.

  	
  Not Responsible for Recitals or
  Issuance of Notes

  	
  42

  
	
  Section 8.04.

  	
  May Hold Notes and Common
  Stock

  	
  43

  
	
  Section 8.05.

  	
  Money Held in Trust

  	
  43

  
	
  Section 8.06.

  	
  Compensation and Reimbursement

  	
  43

  
	
  Section 8.07.

  	
  Corporate Trustee Required;
  Eligibility; Conflicting Interests

  	
  44

  
	
  Section 8.08.

  	
  Resignation and Removal;
  Appointment of Successor

  	
  44

  
	
  Section 8.09.

  	
  Acceptance of Appointment By
  Successor

  	
  45

  
	
  Section 8.10.

  	
  Merger, Conversion, Consolidation
  or Succession to Business

  	
  46

  
	
  Section 8.11.

  	
  Appointment of Authenticating Agent

  	
  46

  
	
  Section 8.12.

  	
  Certain Duties and Responsibilities
  of the Trustee

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  THE NOTEHOLDERS

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Action by Noteholders

  	
  49

  
	
  Section 9.02.

  	
  Proof of Execution by Noteholders

  	
  49

  
	
  Section 9.03.

  	
  Absolute Owners

  	
  49

  
	
  Section 9.04.

  	
  Issuer-owned Notes Disregarded

  	
  50

  
	
  Section 9.05.

  	
  Revocation of Consents; Future
  Holders Bound

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Supplemental Indentures Without
  Consent of Noteholders

  	
  50

  
	
  Section 10.02.

  	
  Supplemental Indenture With Consent
  of Noteholders

  	
  51

  
	
  Section 10.03.

  	
  Effect of Supplemental Indenture

  	
  53

  
	
  Section 10.04.

  	
  Notation on Notes

  	
  53

  



 


ii

















 


	
  Section 10.05.

  	
  Evidence of Compliance of
  Supplemental Indenture to Be Furnished to Trustee

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Issuer and Guarantor
  May Consolidate on Certain Terms

  	
  53

  
	
  Section 11.02.

  	
  Issuer or Guarantor Successor to Be
  Substituted

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  SATISFACTION AND DISCHARGE OF INDENTURE

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Satisfaction and Discharge of
  Indenture

  	
  54

  
	
  Section 12.02.

  	
  Application of Trust Funds

  	
  55

  
	
  Section 12.03.

  	
  Paying Agent to Repay Monies Held

  	
  56

  
	
  Section 12.04.

  	
  Return of Unclaimed Monies

  	
  56

  
	
  Section 12.05.

  	
  Reinstatement

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  GUARANTEE

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Guarantee

  	
  57

  
	
  Section 13.02.

  	
  Execution and Delivery of
  Guarantees

  	
  58

  
	
  Section 13.03.

  	
  Release of the Guarantor

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE 14

  
	
  IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
  DIRECTORS

  
	
   

  	
   

  	
   

  
	
  Section 14.01.

  	
  Indenture and Notes Solely
  Corporate Obligations

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE 15

  
	
  EXCHANGE OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 15.01.

  	
  Right to Exchange

  	
  59

  
	
  Section 15.02.

  	
  Exercise of Exchange Right; No
  Adjustment for Interest or Dividends

  	
  62

  
	
  Section 15.03.

  	
  Cash Payments in Lieu of Fractional
  Shares

  	
  64

  
	
  Section 15.04.

  	
  Exchange Rate

  	
  65

  
	
  Section 15.05.

  	
  Adjustment of Exchange Rate

  	
  65

  
	
  Section 15.06.

  	
  Taxes on Shares Issued

  	
  72

  
	
  Section 15.07.

  	
  Reservation of Shares, Shares to Be Fully Paid; Compliance
  with Governmental Requirements; Listing of Common Stock

  	
  73

  
	
  Section 15.08.

  	
  Responsibility of Trustee

  	
  73

  
	
  Section 15.09.

  	
  Notice to Holders Prior to Certain
  Actions

  	
  74

  
	
  Section 15.10.

  	
  Settlement upon Exchange

  	
  75

  
	
  Section 15.11.

  	
  Exchange Rate Adjustment After
  Certain Designated Events

  	
  76

  
	
  Section 15.12.

  	
  Recapitalization, Reclassifications
  and Changes of Common Stock

  	
  78

  
	
  Section 15.13.

  	
  Calculations in Respect of Notes

  	
  78

  
	
   

  	
   

  	
   

  
	
  ARTICLE 16

  
	
  MEETINGS OF HOLDERS OF NOTES

  
	
   

  	
   

  	
   

  
	
  Section 16.01.

  	
  Purposes for Which Meetings
  May Be Called

  	
  78

  
	
  Section 16.02.

  	
  Call, Notice and Place of Meetings

  	
  78

  
	
  Section 16.03.

  	
  Persons Entitled to Vote at
  Meetings

  	
  79

  



 


iii

















 


	
  Section 16.04.

  	
  Quorum; Action

  	
  79

  
	
  Section 16.05.

  	
  Determination of Voting Rights;
  Conduct and Adjournment of Meetings

  	
  80

  
	
  Section 16.06.

  	
  Counting Votes and Recording Action
  of Meetings

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE 17

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  
	
  Section 17.01.

  	
  Provisions Binding on Issuer’s,
  Guarantor’s and the Company’s Successors

  	
  81

  
	
  Section 17.02.

  	
  Common Stock Delivery Agreement

  	
  81

  
	
  Section 17.03.

  	
  Official Acts by Successor
  Corporation

  	
  81

  
	
  Section 17.04.

  	
  Addresses for Notices, etc.

  	
  81

  
	
  Section 17.05.

  	
  Governing Law

  	
  83

  
	
  Section 17.06.

  	
  Evidence of Compliance with
  Conditions Precedent, Certificates to Trustee

  	
  83

  
	
  Section 17.07.

  	
  Legal Holidays

  	
  84

  
	
  Section 17.08.

  	
  No Security Interest Created

  	
  84

  
	
  Section 17.09.

  	
  Benefits of Indenture

  	
  84

  
	
  Section 17.10.

  	
  Table of Contents,
  Headings, etc.

  	
  84

  
	
  Section 17.11.

  	
  Execution in Counterparts

  	
  84

  
	
  Section 17.12.

  	
  Severability

  	
  84

  
	
  Section 17.13.

  	
  No Stockholder Rights for
  Noteholders

  	
  84

  
	
  Section 17.14.

  	
  Waiver of Jury Trial

  	
  84

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Note and Guarantee

  	
  A-1

  
	
  Exhibit B

  	
  Form of Certificate to Be Delivered in
  Connection with Transfers to Accredited Investors

  	
  B-1

  



 


iv

















 


INDENTURE


 


INDENTURE dated as of October 12, 2010 by and
between SL Green Operating Partnership, L.P., a Delaware limited partnership
(hereinafter called the “Issuer”),
Reckson Operating Partnership, L.P. a Delaware limited partnership (hereinafter
called “Reckson OP”), and SL Green Realty
Corp., a Maryland corporation (hereinafter called the “Company”),
each having its principal office at 420 Lexington Avenue, New York, NY 10170,
and The Bank of New York Mellon, a New York banking corporation, as trustee
hereunder (hereinafter called the “Trustee”).


 


Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the holders of the
Issuer’s 3.00% Exchangeable Senior Notes due 2017, which are unconditionally
guaranteed by the Guarantor pursuant to the Guarantee attached thereto (hereinafter
collectively referred to as the “Notes”).


 


ARTICLE 1

DEFINITIONS


 


Section 1.01.                             Definitions.  The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01.  The words “herein,”
“hereof,” “hereunder” and words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision.  The terms defined in
this Article include the plural as well as the singular.


 


“Accredited Investor”
means an “accredited investor” as
defined in Rule 501(a) under the Securities Act.


 


“Accredited Investor
Certificate” means a certificate substantially in the form of Exhibit B
hereto.


 


“actual knowledge”
has the meaning specified in Section 8.02.


 


“Additional Interest”
has the meaning assigned the term “additional interest” in the Registration
Rights Agreement (as defined below).


 


“Additional Interest
Accrual Period” has the meaning assigned to it in the Registration
Rights Agreement.


 


“Additional Interest Notice”
has the meaning specified in Section 5.08.


 


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


 


“Additional Designated
Event Shares” has the meaning specified in Section 15.11(a).


 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified



 


1

















 


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


 


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


 


“AI Global Note”
means a Global Note resold to Accredited Investors bearing the Restricted Notes
Legend.


 


“Applicable Exchange Rate”
as of any day means the Exchange Rate in effect on such date, after giving
effect to adjustments, if any, provided for in Section 15.05 or Section 15.11.


 


“Applicable Observation
Period” with respect to any Note means the 20 consecutive Trading
Day period beginning on and including the second Trading Day after the Exchange
Date relating to such Note, except that (i) with respect to any Note that
has been called for redemption and surrendered for exchange after the issuance
of a notice of redemption pursuant to Section 3.02, “Applicable
Observation Period” shall mean the first 20 Trading Days beginning
on and including the 22nd Scheduled Trading Day prior to the Redemption Date,
and (ii) with respect to any Exchange Date occurring during the period
beginning on the 25th Scheduled Trading Day prior to the maturity date, the 20
consecutive Trading Day period beginning on, and including, the 22nd Scheduled
Trading Day prior to the Maturity Date.


 


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


 


“Board of Directors”
means the board of directors of the Company or a committee of that board duly
authorized to act hereunder.


 


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


 


“Business Day”
means each Monday, Tuesday, Wednesday, Thursday and Friday, other than (i) a
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close, or (ii) a day on which the
Corporate Trust Office of the Trustee is authorized or obligated by law or
executive order to close.


 


“Cash Percentage”
has the meaning specified in Section 15.10(d).


 


“Cash Percentage Notice”
has the meaning specified in Section 15.10(d).


 


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


 


“Closing Sale Price”
of Common Stock or other capital stock or similar equity interests or other
publicly traded securities on any Trading Day means the closing sale price per
share (or, if no closing sale price is reported, the average of the closing bid
and ask prices or, if more than 


 


2

















 


one in either case, the average of the average closing
bid and the average closing ask prices) on such date as reported on the
principal United States securities exchange on which Common Stock or such other
capital stock or similar equity interests or other securities are traded or, if
Common Stock or such other capital stock or similar equity interests or other
securities are not listed on a United States national or regional securities
exchange, any United States system of automated dissemination of quotations of
securities prices or an established over-the-counter trading market in the United
States.  The Closing Sale Price will be
determined without regard to after-hours trading or extended market
making.  In the absence of the foregoing,
the Board of Directors will determine the Closing Sale Price on such basis as
it considers appropriate.


 


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


 


“Common Stock”
means all shares of capital stock issued by the Company other than Preferred
Stock.  Shares of Common Stock issuable
on exchange of Notes shall include only shares of the class designated as
common stock of the Company at the date of this Indenture (namely, the common
stock, par value $0.01) or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that
if at any time there shall be more than one such resulting class, the shares of
each such class then so issuable on exchange shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.


 


“Common Stock Delivery
Agreement” means the Common Stock Delivery Agreement dated as of October 12,
2010, between the Issuer and the Company, as amended from time to time in
accordance with its terms.


 


“Common Stock Legend”
has the meaning specified in Section 2.05(d).


 


“Company” means
the corporation named as the “Company” in the
first paragraph of this Indenture, and, subject to the provisions of Article 11,
shall include its successors and assigns.


 


“Continuing Director”
means, with respect to any 12 consecutive month period after the date of
original issuance of the Notes, a director who either was a member of the Board
of Directors on the first day of such period or who becomes a member of the
Board of Directors subsequent to that date and whose election, appointment or
nomination for election by the Company’s stockholders, is duly approved by a
majority of the Continuing Directors on the Board of Directors at the time of
such approval, by a specific vote, by approval of the proxy statement issued by
the Issuer on behalf of the entire Board of Directors in which such individual
is named as nominee for director or otherwise.


 


3

















 


“Corporate Trust Office”
or other similar term, means the designated office of the Trustee at which, at
any particular time, its corporate trust business as it relates to this
Indenture shall be administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, Floor 8W, New York, NY
10286, Attention: Corporate Trust Administration, or at any other time at such
other address as the Trustee may designate from time to time by notice to the
Issuer.


 


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


 


“Custodian”
means The Bank of New York Mellon, as custodian for the Depositary with respect
to the Global Notes, or any successor entity thereto.


 


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


 


“Daily Settlement Amount”
for each of the 20 Trading Days during the Applicable Observation Period shall
consist of: (i) cash equal to the lesser of (x) one-twentieth of
$1,000 and (y) the Daily Exchange Value on such Trading Day; and (ii) to
the extent the Daily Exchange Value on such Trading Day exceeds one-twentieth
of $1,000, a number of shares (the “Daily Share Amount”),
subject to the Issuer’s right to pay cash in lieu of all or a portion of such
shares of Common Stock, as described in Section 15.10, equal to (x) the
difference between the Daily Exchange Value on such Trading Day and
one-twentieth of $1,000, divided by (y) the
Daily VWAP for such Trading Day.


 


“Daily Share Amount”
has the meaning specified in “Daily Settlement Amount.”


 


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


 


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


 


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


 


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


 


4

















 


“Designated Event”
means the occurrence at any time of any of the following events: (1) consummation
of any transaction or event (whether by means of a share exchange or tender
offer applicable to the Common Stock, a liquidation, consolidation,
recapitalization, reclassification, combination or merger of the Company or a
sale, lease or other transfer of all or substantially all of the consolidated
assets of the Company) or a series of related transactions or events pursuant
to which all of the outstanding Common Stock is exchanged for, converted into
or constitutes solely the right to receive cash, securities or other property,
in each case, other than any merger or consolidation (A) pursuant to which
the holders of the Common Stock immediately prior to the transaction are
entitled to exercise, directly or indirectly, 50% or more of the voting power
of all shares of capital stock entitled to vote generally in the election of
directors, managers or trustees, as applicable, of either (a) the
continuing or surviving entity or (b) an entity that directly or
indirectly owns 100% of the capital stock of such continuing or surviving
entity, in either case, immediately after such transaction; provided that, in the case of this clause (b), such parent
entity fully and unconditionally guarantees all obligations of such continuing
or surviving entity under the Notes and this Indenture on a senior basis on
terms and pursuant to a supplemental indenture reasonably satisfactory to the
Trustee that is executed and delivered pursuant to Article 10; or (B) which
is effected solely to change the Company’s jurisdiction of incorporation and
results in a reclassification, conversion or exchange of outstanding shares of
the Common Stock solely into shares of common stock of the surviving entity; (2) any
“person” or “group” (as such terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act, whether or not applicable), other than the
Company, the Issuer, any majority-owned Subsidiary of the Company or the
Issuer, or any employee benefit plan of the Company, the Issuer or any such
Subsidiary, is or becomes the “beneficial owner,” directly or indirectly, of
more than fifty percent (50%) of the total voting power in the aggregate of all
classes of capital stock of the Company then outstanding and entitled to vote
generally in elections of directors (it being understood and agreed that the
ownership of Units will not be deemed to constitute beneficial ownership of
capital stock of the Company); (3) during any period of 12 consecutive
months after the date of original issuance of the Notes (for so long  as the Company is the General Partner of the
Issuer immediately prior to such transaction or series of related
transactions), Continuing Directors cease to constitute at least a majority of
the Board of Directors; (4) the Common Stock of the Company (or any
successor thereto permitted pursuant to the terms of this Indenture) ceases to
be listed on a United States national or regional securities exchange for 30
consecutive Trading Days or (5) the Company (or any successor thereto
permitted pursuant to the terms of this Indenture) ceases to be the general
partner of, or to control, the Issuer; provided, however, that for purposes of this clause (5), the pro rata distribution by the Company to its stockholders of
shares of the Company’s capital stock or shares of any of the Company’s
Subsidiaries (other than the Issuer) will not, in and of itself, constitute a
Designated Event for purposes of this definition; provided,
however, even if any of the events specified in the preceding
clauses (1) through (5) have occurred, a “Designated Event” will not
be deemed to have occurred if at least 90% of the consideration (excluding cash
payments for fractional shares and cash payments made pursuant to dissenters’
appraisal rights) in a merger, consolidation or other transaction otherwise constituting
a Designated Event consists of cash, securities or other property traded on a
national securities exchange (or will be so traded or quoted immediately
following such merger, consolidation or other transaction) and as a result of
the merger, consolidation or other transaction the Notes become exchangeable
into such shares of common stock (or depositary receipts or other certificates
representing common equity interests).


 


5






 












 


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


 


“Designated Event
Repurchase Date” has the meaning specified in Section 4.01(a).


 


“Designated Event
Repurchase Notice” has the meaning specified in Section 4.01(c).


 


“Designated Event
Repurchase Price” has the meaning specified in Section 4.01(a).


 


“DTC” means The
Depository Trust Company.


 


“Effective Date”
has the meaning specified in Section 15.11(b).


 


“Event of Default”
has the meaning specified in Section 7.01.


 


“ex-dividend date”
has the meaning specified in Section 15.01(a)(iv).


 


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


 


“Exchange Agent”
means the exchange agent appointed by the Issuer to act as set forth in Article 15,
which, initially, shall be the Trustee.


 


“Exchange Date”
has the meaning specified in Section 15.02.


 


“Exchange Notice”
has the meaning specified in Section 15.02.


 


“Exchange Obligation”
has the meaning specified in Section 15.10(a).


 


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


 


“Exchange Rate”
has the meaning specified in Section 15.04.


 


“Expiration Date”
has the meaning specified in Section 15.05(e).


 


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


 


“Guarantee”
means the guarantee by the Guarantor of the Issuer’s obligation under this
Indenture and the Notes, to pay principal of, premium, if any, and interest
when due and payable, and all other amounts due or to become due under or in
connection with this Indenture, the Notes and the performance of all other
obligations to the Trustee and the Holders under this Indenture and the Notes,
according to the respective terms hereof and thereof.


 


“Guarantor”
means Reckson OP and any successor thereof; in each case until such Guarantor
ceases to be such in accordance with Section 13.03 hereof.


 


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


 


6

















 


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


 


“Initial Purchaser”
means Citigroup Global Markets Inc.


 


“interest”
means, when used with reference to the Notes, any interest payable under the
terms of the Notes, including Additional Interest, if any, payable under the
terms of the Registration Rights Agreement.


 


“Issuer” means
the limited partnership named as the “Issuer” in the
first paragraph of this Indenture, and, subject to the provisions of Article 11,
shall include its successors and assigns.


 


“Issuer Request”
and “Issuer Order” mean, respectively, a
written request or order signed in the name of the Issuer by the Company,
acting in its capacity as the general partner of the Issuer, by its Chairman of
the Board of Directors, the President or a Vice President, and by its
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.


 


“Issuer Designated Event
Repurchase Notice” has the meaning specified in Section 4.02(b).


 


“Issuer Designated Event
Repurchase Notice Date” has the meaning specified in Section 4.02(b).


 


“Make Whole Cap”
has the meaning specified in Section 15.11(f)(ii).


 


“Make Whole Floor”
has the meaning specified in Section 15.11(f)(iii).


 


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


 


“Maturity Date”
means October 15, 2017.


 


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


 


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


 


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


 


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


 


7

















 


“Offering Memorandum”
means the Issuer’s offering memorandum dated October 6, 2010 relating to
the Notes.


 


“Officer” means
the Chairman, the President, one of the Vice Presidents, the Treasurer, the
Assistant Treasurer, the Secretary or an Assistant Secretary of (i) the
Company, (ii) the General Partner of the Issuer or (iii) the General
Partner of the Guarantor, as the case may be.


 


“Officers’ Certificate,”
when used with respect to the Issuer, means a certificate signed by the
Chairman of the Board of Directors, the President or a Vice President and by
the Treasurer, the Chief Financial Officer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company or the
Issuer or who may be an employee of or other counsel for the Company or the
Issuer, and delivered to the Trustee.


 


“outstanding,”
when used with respect to Notes, means, as of the date of determination, all
Notes theretofore authenticated and delivered under this Indenture, except:


 


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


 


(b)                                 Notes, or portions thereof, for the payment of which (including
redemption or repurchase pursuant to Article 3 and Article 4) money
in the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Issuer) in trust or set aside and segregated in
trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Notes; provided  however, that, if such Notes are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;


 


(c)                                  Notes that have been discharged in accordance with Article 12; and


 


(d)                                 Notes that have been paid pursuant to Section 2.06 or in exchange
for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such
Notes are held by a protected purchaser in whose hands such Notes are valid obligations
of the Issuer;


 


provided, however,
that in determining whether the Holders of the requisite principal amount of
the outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or are present at a meeting of Holders for
quorum purposes, Notes owned by the Issuer or any other obligor upon the Notes
or any Affiliate of the Issuer or of such other obligor shall be disregarded
and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded.  Notes that have been pledged in good faith
may be regarded as outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee’s right so to act with respect to such Notes and
that the 


 


8

















 


pledgee is not the Issuer or any other obligor upon
the Notes or any Affiliate of the Issuer or of such other obligor.  In case of a dispute as to such right, the
advice of counsel shall be full protection in respect of any decision made by
the Trustee in accordance with such advice.


 


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


 


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


 


“Preferred Stock”
means, with respect to any Person, all capital stock issued by such Person that
is entitled to a preference or priority over any other capital stock issued by
such Person with respect to any distribution of such Person’s assets, whether
by dividend or upon any voluntary or involuntary liquidation, dissolution or
winding up.


 


“premium” means
any premium payable under the terms of the Notes.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A under the Securities Act.


 


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


 


“Redemption Date”
means, with respect to any Note or portion thereof to be redeemed in accordance
with the provisions of Section 3.01 hereof, the date fixed for such
redemption in accordance with the provisions of Section 3.01 hereof.


 


“Redemption Price”
has the meaning provided in Section 3.01 hereof.


 


“Reference Dividend Amount”
has the meaning specified in Section 15.05(d).


 


“Registration Rights
Agreement” means the Registration Rights Agreement, dated as of October 12,
2010, among the Issuer, the Guarantor, the Company and Citigroup Global Markets
Inc., as amended from time to time in accordance with its terms.


 


“Responsible Officer”
when used with respect to the Trustee, means the chairman or vice-chairman of
the board of directors, the chairman or vice-chairman of the executive
committee of the board of directors, the president, any vice president (whether
or not designated by a number or a word or words added before or after the
title “vice president”), the secretary, any assistant secretary, the treasurer,
any assistant treasurer, the cashier, any assistant cashier, any trust officer
or assistant trust officer, the controller or any other officer in the
Corporate Trust Office of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.


 


“Restricted Securities”
has the meaning specified in Section 2.05(d).


 


“Restricted Securities
Legend” has the meaning specified in Section 2.05(d).


 


9

















 


“Rule 144A”
means Rule 144A as promulgated under the Securities Act as it may be
amended from time to time hereafter.


 


“Scheduled Trading Day”
means a day that is scheduled to be a Trading Day.


 


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


 


“Significant Subsidiary”
means any Subsidiary which is a “significant subsidiary” (as defined in Article I,
Rule 1-02 of Regulation S-X, promulgated under the Securities Act) of the
Issuer.


 


“Spin-Off” has
the meaning specified in Section 15.05(c).


 


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


 


“Stock Price”
has the meaning specified in Section 15.11(b).


 


“Subsidiary”
means a Person (other than an individual), a majority of the outstanding voting
stock, partnership interests, membership interests or other equity interest, as
the case may be, of which is owned or controlled, directly or indirectly, by
another Person or by one or more other Subsidiaries of such other Person.  For the purposes of this definition, “voting
stock” means stock having voting power for the election of directors, trustees
or managers, as the case may be, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.


 


“Trading Day”
means a day on which (i) there is no Market Disruption Event and (ii) trading
in securities generally occurs on the New York Stock Exchange or, if the Common
Stock is not then listed on the New York Stock Exchange, on the principal other
United States national or regional securities exchange on which the Common
Stock is then listed or, if the Common Stock is not then listed on a United
States national or regional securities exchange, on the principal other market
on which the Common Stock is then traded; provided, however, that if the Common Stock (or other security for
which a Closing Sale Price must be determined) is not so listed or quoted, “Trading
Day” means a Business Day.


 


“Trading Price”
has the meaning specified in Section 15.01(a)(ii).


 


“transfer” has
the meaning specified in Section 2.05(d).


 


“Trust Indenture Act”
or “TIA” means the Trust Indenture Act of
1939, as amended, as it was in force at the date of this Indenture; provided that, in the case of a supplemental indenture
executed pursuant to this Indenture, “Trust Indenture Act” or “TIA” means the
Trust Indenture Act of 1939, as amended, as it was in force at the date of such
supplemental indenture.


 


“Trustee” means
The Bank of New York Mellon, solely in its capacity as Trustee under this
Indenture and not in its individual capacity, and its successors and any
corporation resulting 


 


10

















 


from or surviving any consolidation or merger to which
it or its successors may be a party and any successor trustee at the time
serving as successor trustee hereunder.


 


“Units” means
the limited partnership units of the Issuer.


 


ARTICLE 2

ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES


 


Section 2.01.                             Designation Amount and Issue of Notes.  The Notes shall be designated as “3.00% Exchangeable Senior Notes due 2017.”
Upon the execution of this Indenture, and from time to time thereafter, Notes
may be, subject to this Section 2.01, executed by the Issuer and delivered
to the Trustee (with or without the Guarantee endorsed thereon) for
authentication, and the Trustee shall thereupon authenticate and deliver Notes
upon a written order of the Issuer, such order signed by one Officer of the Issuer,
without any further action by the Issuer or the Company hereunder.


 


The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is unlimited; provided that upon initial issuance the aggregate principal
amount of Notes outstanding shall not exceed $345,000,000, except
as provided in Section 2.06.  The
Issuer may, without the consent of the Holders of Notes, issue additional Notes
(the “Additional Notes”) from time to time in
the future with the same terms and conditions, except for any difference in the
issue price and interest accrued prior to the issue date of the Additional
Notes, and the same CUSIP number as the Notes originally issued under this
Indenture (the “Initial Notes”) in an unlimited
principal amount, provided that such Additional
Notes must be part of the same issue as and fungible with the Initial Notes for
United States federal income tax purposes. 
The Initial Notes and any such Additional Notes will constitute a single
series of debt securities, and in circumstances in which this Indenture
provides for the Holders of Notes to vote or take any action, the Holders of
Initial Notes and the Holders of any such Additional Notes will vote or take
that action as a single class.


 


Section 2.02.                             Form of Notes.  The Notes and the Trustee’s certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A hereto.  The
terms and provisions contained in the form of Note attached as Exhibit A
hereto shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Issuer and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.


 


Any of the Notes may have such letters, numbers or
other marks of identification and such notations, legends, endorsements or
changes as the officers executing the same may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Indenture, or as may be required by the Custodian or the
Depositary or as may be required for the Notes to be tradable on any other
market developed for trading of securities pursuant to Rule 144A or as may
be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.


 


11

















 


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


 


Any Global Note shall represent such of the
outstanding Notes as shall be specified therein and shall provide that it shall
represent the aggregate amount of outstanding Notes from time to time endorsed
thereon and that the aggregate amount of outstanding Notes represented thereby
may from time to time be increased or reduced to reflect redemptions,
repurchases, exchanges, or transfers permitted hereby.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
Holder of such Notes in accordance with this Indenture.  Payment of principal of, interest on and
premium, if any, on any Global Note shall be made to the Holder of such Note.


 


So long as any Notes are represented by one or more
Global Notes, the parties hereto will be bound at all times by the applicable
procedures of the Depositary with respect to such Notes.


 


Notes transferred to Accredited Investors pursuant to Section 2.05(b) of
this Indenture shall be issued in the form of an AI Global Note or, upon the
written request of the Issuer to the Trustee, in the form of a certificated
Note.


 


Section 2.03.                             Date and Denomination of Notes; Payments of Interest.  The Notes shall be issuable in
registered book entry form without coupons in minimum denominations of $1,000
principal amount and in integral multiples of $1,000 in excess thereof.  Each Note shall be dated the date of its authentication
and shall bear interest from the date specified on the face of the Note.  Interest on the Notes shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.


 


The Person in whose name any Note is registered on the
Note Register at the close of business on any Record Date with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date.  Notwithstanding
the foregoing, any Note or portion thereof surrendered for exchange during the
period from the close of business on the Record Date for any interest payment
to the close of business on the applicable interest payment date must be
accompanied by payment, in immediately available funds or other funds
acceptable to the Issuer, of an amount equal to the interest otherwise payable
on such interest payment date on the principal amount being exchanged; provided, however, that
no such payment need be made (1) if a Holder exchanges its Notes as
permitted by Section 15.01(a)(iii) and the Issuer has specified a
Redemption Date that is after a Record Date and on or prior to the Business Day
immediately succeeding the corresponding interest payment date, (2) if a
Holder exchanges its 


 


12

















 


Notes in connection with a Designated Event and the
Issuer has specified a Designated Event Repurchase Date that is after a Record
Date and on or prior to the Business Day immediately succeeding the
corresponding interest payment date, (3) with respect to any exchange on
or following the Record Date immediately preceding the Maturity Date, or (4) to
the extent of any Defaulted Interest, if any Defaulted Interest exists at the
time of exchange with respect to such Note. 
Interest on any Global Note shall be paid by wire transfer of
immediately available funds to the account of the Depositary or its
nominee.  Payment of the principal and
interest on the Notes not represented by a Global Note will be made at the
Corporate Trust Office, or the office maintained for that purpose by the Issuer
in the Borough of Manhattan, The City of New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided,
however, that at the option of the
Issuer, payments of interest on the Notes may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Note Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto located within the United States.


 


If a payment date is not a Business Day, payment shall
be made on the next succeeding Business Day, and no additional interest shall
accrue thereon.  The term “Record Date” with respect to any interest payment date shall
mean the April 1 or October 1 preceding the applicable April 15
or October 15 interest payment date, respectively.


 


Any interest on any Note that is payable, but is not
punctually paid or duly provided for, on any April 15 or October 15
(herein called “Defaulted Interest”) shall
forthwith cease to be payable to the Noteholder registered as such on the
relevant Record Date, and such Defaulted Interest shall be paid by the Issuer,
at its election in each case, as provided in clause (a) or (b) below:


 


(a)                                  The Issuer may elect to make
payment of any Defaulted Interest to the Persons in whose names the Notes are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.  The Issuer shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Note
and the date of the proposed payment (which shall be not less than twenty (20)
calendar days after the receipt by the Trustee of such notice, unless the
Trustee shall consent to an earlier date), and at the same time the Issuer
shall deposit with the Trustee an amount of money equal to the aggregate amount
to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause provided.  Thereupon the Trustee shall fix a special
record date for the payment of such Defaulted Interest which shall be not more
than fifteen (15) calendar days and not less than ten (10) calendar days
prior to the date of the proposed payment, and not less than ten (10) calendar
days after the receipt by the Trustee of the notice of the proposed payment
(unless, the Trustee shall consent to an earlier date).  The Trustee shall promptly notify the Issuer
of such special record date and, in the name and at the expense of the Issuer,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first-class postage prepaid, to each
Holder at its address as it appears in the Note Register, not less than ten (10) calendar
days prior to such special record date (unless, the Trustee shall consent to an
earlier date).  Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such 


 


13

















 


Defaulted Interest shall be paid to the Persons in whose names the Notes
are registered at the close of business on such special record date and shall
no longer be payable pursuant to the following clause (b) of this Section 2.03.


 


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


 


Section 2.04.                             Execution of Notes.  The Notes shall be signed in the name and on
behalf of the Issuer by the manual or facsimile signature of an Officer of the
Issuer.  Only such Notes as shall bear
thereon a certificate of authentication substantially in the form set forth on
the form of Note attached as Exhibit A hereto, executed manually or by
facsimile by the Trustee (or an authenticating agent appointed by the Trustee
as provided by Section 8.11), shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose.  Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Issuer shall be conclusive
evidence that the Note so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.


 


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


 


Section 2.05.                             Exchange and Registration of Transfer of Notes; Restrictions on
Transfer.  (a)  The Trustee shall cause to be kept
at the Corporate Trust Office a register (the register maintained in such
office and in any office or agency of the Issuer designated pursuant to Section 5.02
being herein sometimes collectively referred to as the “Note Register”) in which, subject to such
reasonable regulations as it may prescribe, the Trustee shall provide for the
registration of Notes and of transfers and exchanges of Notes.  The Note Register shall be in written form or
in any form capable of being exchanged into written form within a reasonably
prompt period of time.  The Trustee is
hereby appointed “Note Registrar”
for the purpose of registering Notes and transfers and exchanges of Notes as
herein provided.  The Issuer may appoint
one or more co-registrars in accordance with Section 5.02.


 


Upon surrender for registration of transfer of any
Note to the Note Registrar or any office or agency maintained by the Issuer
pursuant to Section 5.02, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Issuer shall execute, and
upon receipt thereof the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Notes of any
authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Indenture.


 


14

















 


Notes may be exchanged for other Notes of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at the Corporate Trust Office or any
such office or agency maintained by the Issuer pursuant to Section 5.02.  Whenever any Notes are so surrendered for
exchange, the Issuer shall execute, and upon receipt thereof the Trustee shall
authenticate and deliver, the Notes which the Noteholder making the exchange is
entitled to receive bearing registration numbers not contemporaneously
outstanding.


 


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


 


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


 


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


 


In the event of any redemption in part, the Issuer
shall not be required to: (i) issue or register the transfer or exchange
of any Note during a period beginning at the opening of business 15 days before
any selection of Notes for redemption and ending at the close of business on
the earliest date on which the relevant notice of redemption is deemed to have
been given to all Holders of Notes to be so redeemed, or (ii) register the
transfer or exchange of any Note so selected for redemption, in whole or in
part, except the unredeemed portion of any
Note being redeemed in part.


 


(b)                                 The following provisions
shall apply with respect to the registration of any proposed transfer of a Note
to any Accredited Investor which is not a QIB:


 


(i)                               The Notes
Registrar shall register the transfer of any Note if the proposed transferee
has delivered to the Notes Registrar (x) an Accredited Investor
Certificate and (y) an opinion of counsel acceptable to the Issuer and
such other certifications and evidence as the Issuer may reasonably require in
order to determine that such transfer is being made in compliance with the
Securities Act.


 


(ii)                            If the
proposed transferor is an Agent Member holding a beneficial interest in a
Global Note, upon receipt by the Notes Registrar of (x) the documents
required by paragraph (i) above and (y) instructions given in
accordance with the Depositary’s and the Notes Registrar’s procedures, the
Notes Registrar shall reflect on its books and records the date and a decrease
in the principal amount of such Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and the
Issuer shall execute, and the Trustee shall authenticate and deliver,


 


15






 












 


one or more AI Global Note or, upon the
written request of the Issuer to the Trustee, one or more certificated Notes,
of like tenor and amount.


 


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


 


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


 


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


 


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


 


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


 


(v)         Neither any members of, or participants in, the Depositary (“Agent Members”) nor any other Persons on
whose behalf Agent Members may act shall have 


 


16

















 


any rights under this Indenture with respect
to any Global Note registered in the name of the Depositary or any nominee
thereof, and the Depositary or such nominee, as the case may be, may be treated
by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the
absolute owner and Holder of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other Person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a Holder of any Note.


 


(vi)        At such time as all interests in a Global Note have been
redeemed, repurchased, exchanged, or canceled for Notes in certificated form,
such Global Note shall, upon receipt thereof, be canceled by the Trustee in
accordance with standing procedures and instructions existing between the
Depositary and the Custodian.  At any
time prior to such cancellation, if any interest in a Global Note is redeemed,
repurchased, exchanged, or canceled for Notes in certificated form, the
principal amount of such Global Note shall, in accordance with the standing
procedures and instructions existing between the Depositary and the Custodian,
be appropriately reduced, and an endorsement shall be made on such Global Note,
by the Trustee or the Custodian, at the direction of the Trustee, to reflect
such reduction.


 


(d)           Every
Note (and all securities issued in exchange therefor or in substitution
thereof) that bears or is required under this Section 2.05(d) to bear
the legend set forth in this Section 2.05(d) (the “Restricted Notes Legend”), and any Common
Stock that bears or is required under this Section 2.05(d) to bear
the Common Stock legend set forth in this Section 2.05(d) (the “Common Stock Legend”) (collectively, the “Restricted Notes”) shall be subject to the
restrictions on transfer set forth in this Section 2.05(d) (including
those set forth in the legends below) unless such restrictions on transfer
shall be waived by written consent of the Issuer, and the Holder of each such
Restricted Note, by such Holder’s acceptance thereof, agrees to be bound by all
such restrictions on transfer.  As used
in this Section 2.05(d), the term “transfer”
means any sale, pledge, loan, transfer or other disposition whatsoever of any
Restricted Note or any interest therein.


 


Until the Maturity Date for the Notes any certificate
evidencing a Note shall bear a legend in substantially the following form, or
unless otherwise agreed by the Issuer in writing, with written notice thereof
to the Trustee:


 


THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER, SL GREEN REALTY CORP.  OR A SUBSIDIARY OF THE ISSUER OR OF SL GREEN
REALTY CORP.; (B) TO A PERSON THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN 


 


17

















 


RULE 144A ADOPTED UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE) OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION UNDER
THE SECURITIES ACT (INCLUDING, WITHOUT LIMITATION, TO ACCREDITED INVESTORS).


 


Until the expiration of the holding period applicable
to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), any stock certificate representing shares of Common Stock
issued upon exchange of any Note shall bear a Common Stock Legend unless such
Common Stock has been sold pursuant to a registration statement that has been
declared effective under the Securities Act (and that continues to be effective
at the time of such transfer) or pursuant to Rule 144 under the Securities
Act or any similar provision then in force, or unless otherwise agreed by the
Issuer in writing, with written notice thereof to the Trustee:


 


THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER, SL GREEN REALTY CORP.  OR A SUBSIDIARY OF THE ISSUER OR OF SL GREEN
REALTY CORP.; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED
UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE
WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS NOTE, FURNISH TO THE TRANSFER AGENT AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


Any such shares of Common Stock as to which such
restrictions on transfer shall have expired in accordance with their terms or
as to which the conditions for removal of the Common Stock Legend set forth
therein have been satisfied may, upon surrender of the certificates
representing such shares of Common Stock for exchange in accordance with the
procedures of the transfer agent for the Common Stock, be exchanged for a new
certificate or certificates for a 


 


18

















 


like number of shares of Common Stock, which shall not
bear the Common Stock Legend required by this Section 2.05(d).


 


(e)           By
its acceptance of any Note bearing the Restricted Notes Legend, each Holder of
such Note acknowledges the restrictions on transfer of such Note set forth in
this Indenture and in the Restricted Notes Legend and agrees that it will
transfer such Note only as provided in this Indenture and as permitted by
applicable law.


 


(f)            Any
Restricted Notes purchased or owned by the Issuer or any Affiliate thereof may
not be resold by the Issuer or such Affiliate unless registered under the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such Notes
or Common Stock, as the case may be, no longer being “restricted securities”
(as defined under Rule 144).


 


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


 


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


 


Section 2.06.                  Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall become mutilated or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
its written request and receipt of such new Note the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen.  In every case, the applicant for a
substituted Note shall furnish to the Issuer, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in every case of
destruction, loss or theft, the applicant shall also furnish to the 


 


19

















 


Issuer, to the
Trustee and, if applicable, to such authenticating agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


Following receipt by the Trustee or such
authenticating agent, as the case may be, of satisfactory security or indemnity
and evidence, as described in the preceding paragraph, the Trustee or such
authenticating agent may authenticate any such substituted Note and make
available for delivery such Note.  Upon
the issuance of any substituted Note, the Issuer may require the payment by the
Holder of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith.  In case any Note which has
matured or is about to mature or has been called for redemption or has been
properly tendered for repurchase on a Designated Event Repurchase Date (and not
withdrawn) or is to be exchanged pursuant to this Indenture, shall become
mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a
substitute Note, pay or authorize the payment of or exchange or authorize the
exchange of the same (without surrender thereof except in the case of a
mutilated Note), as the case may be, if the applicant for such payment or
exchange shall furnish to the Issuer, to the Trustee and, if applicable, to
such authenticating agent such security or indemnity as may be required by them
to save each of them harmless for any loss, liability, cost or expense caused
by or in connection with such substitution, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer, the Trustee and,
if applicable, any Paying Agent or Exchange Agent evidence to their
satisfaction of the destruction, loss or theft of such Note and of the
ownership thereof.


 


Every substitute Note issued pursuant to the
provisions of this Section 2.06 by virtue of the fact that any Note is
mutilated, destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer and the Guarantor, whether or not the mutilated,
destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations
set forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.  To the
extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment or exchange or redemption or repurchase of mutilated,
destroyed, lost or stolen Notes and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment or exchange or
redemption or repurchase of negotiable instruments or other securities without
their surrender.


 


Section 2.07.                  Temporary Notes. 
Pending the preparation of Notes in certificated form, the Issuer may
execute and the Trustee or an authenticating agent appointed by the Trustee
shall, upon the written request of the Issuer, authenticate and deliver
temporary Notes (printed or lithographed). 
Temporary Notes shall be issuable in any authorized denomination, and
substantially in the form of the Notes in certificated form, including the
Guarantee endorsed thereon, but with such omissions, insertions and variations
as may be appropriate for temporary Notes, all as may be determined by the
Issuer.  Every such temporary Note shall
be executed by the Issuer and upon the written request of the Issuer
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form.  Without
unreasonable delay, the Issuer will execute and deliver to the Trustee or such
authenticating agent Notes in certificated form and thereupon any or all
temporary Notes may be surrendered in exchange therefor, at each office or 


 


20

















 


agency maintained
by the Issuer pursuant to Section 5.02 and, upon receipt of the
Certificated Notes, the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form.  Such exchange shall be made by the Issuer at
its own expense and without any charge therefor.  Until so exchanged, the temporary Notes shall
in all respects be entitled to the same benefits and subject to the same
limitations under this Indenture as Notes in certificated form authenticated
and delivered hereunder.


 


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


 


Section 2.09.                  CUSIP Numbers.  The
Issuer in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as
a convenience to Noteholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers.  The Issuer will promptly notify the Trustee
of any change in the “CUSIP”
numbers.


 


ARTICLE 3

REDEMPTION OF NOTES


 


Section 3.01.                  Redemption of Notes.  (a) 
The Issuer shall have the right to redeem the Notes for cash, in whole or in part,
at any time if the Issuer determines it is necessary to redeem the Notes in
order to preserve the Company’s qualification as a real estate investment
trust, upon the notice set forth in Section 3.02, at a redemption price
(the “Redemption Price”) equal to
100% of the principal amount of the Notes to be redeemed plus unpaid interest,
if any, accrued thereon to, but excluding, the Redemption Date; provided, however
that if the Redemption Date falls after a Record Date and on or prior to the
corresponding interest payment date, the Issuer will pay the full amount of
accrued and unpaid interest, if any, on such interest payment date to the
Holder of record at the close of business on the corresponding Record Date
(instead of the Holder surrendering its Notes for redemption) and the
Redemption Price shall be equal to 100% of the principal amount of the Notes to
be redeemed.  In connection with any
redemption by the Issuer pursuant to this Section 3.01(a), the Issuer
shall provide the Trustee with a Board Resolution received by the Trustee not
fewer than five (5) Business Days prior (or such shorter period of time as may
be acceptable to the Trustee) to the date the notice of redemption is to be
mailed, evidencing that the Board of Directors has, in good faith, made the
determination that it 


 


21

















 


is necessary to
redeem the Notes in order to preserve the Company’s qualification as a real
estate investment trust.


 


(b)           The
Issuer shall not redeem the Notes pursuant to this Section 3.01 on any
date if the principal amount of the Notes has been accelerated, and such an
acceleration has not been rescinded or cured on or prior to such date (except
in the case of an acceleration resulting from a default by the Issuer in the
payment of the Redemption Price with respect to the Notes to be redeemed).


 


Section 3.02.                  Notice of Optional Redemption; Selection of Notes.  In case the Issuer shall desire to exercise
the right to redeem all or, as the case may be, any part of the Notes pursuant
to Section 3.01, it shall fix a date for redemption and it or, at its
written request received by the Trustee not fewer than five (5) Business
Days prior (or such shorter period of time as may be acceptable to the Trustee)
to the date the notice of redemption is to be mailed, the Trustee in the name
of and at the expense of the Issuer, shall mail or cause to be mailed a notice
of such redemption not fewer than twenty-three (23) Scheduled Trading Days nor
more than sixty (60) calendar days prior to the Redemption Date to each Holder
of Notes so to be redeemed in whole or in part at its last address as the same
appears on the Note Register; provided
that if the Issuer makes such request of the Trustee, it shall, together with
such request, also give written notice of the Redemption Date to the Trustee; provided further that the text of the
notice shall be prepared by the Issuer, and the Trustee may rely and shall be
fully protected in relying upon such text prepared by the Issuer.


 


Each such notice of redemption shall specify: (i) the
aggregate principal amount of Notes to be redeemed, (ii) the CUSIP number
or numbers of the Notes being redeemed, (iii) the Redemption Date (which
shall be a Business Day), (iv) the Redemption Price at which Notes are to
be redeemed, (v) the place or places of payment and that payment will be
made upon presentation and surrender of such Notes, (vi) that interest
accrued and unpaid to, but excluding, the Redemption Date will be paid as
specified in said notice, and that on and after said date interest thereon or
on the portion thereof to be redeemed will cease to accrue, (vii) that the
Holder has a right to exchange the Notes called for redemption, (viii) the
Applicable Exchange Rate on the date of such notice, (ix) the time and
date on which the right to exchange such Notes or portions thereof pursuant to
this Indenture will expire and (x) whether the Company has determined that
it is not a “domestically controlled investment entity” as defined in Section 897
of the Internal Revenue Code and, therefore, will withhold under Section 1445
of the Internal Revenue Code unless a non-U.S. Noteholder would not be treated
as having owned (under all applicable rules for direct, indirect, and
constructive ownership) more than five percent of the fair market value of the
Common Stock during the applicable testing period.


 


Without limiting the generality of the foregoing,
whenever any Notes are to be redeemed, the Issuer will give the Trustee written
notice of the Redemption Date, together with an Officers’ Certificate as to the
aggregate principal amount of Notes to be redeemed, not fewer than 5 Business
Days prior (or such shorter period of time as may be acceptable to the Trustee)
to the date the notice of redemption is to be mailed.


 


On or prior to the Redemption Date specified in the
notice of redemption given as provided in this Section 3.02, the Issuer
will deposit with the Paying Agent (or, if the Issuer is 


 


22

















 


acting as its own Paying Agent, set aside, segregate
and hold in trust as provided in Section 5.04) an amount of money in
immediately available funds sufficient to redeem on the Redemption Date all the
Notes (or portions thereof) so called for redemption (other than those theretofore
surrendered for exchange) at the appropriate Redemption Price; provided that if such payment is made on the Redemption
Date, it must be received by the Paying Agent by 11:00 a.m., New York City
time, on such date.  The Issuer shall be
entitled to retain any interest, yield or gain on amounts deposited with the
Paying Agent pursuant to this Section 3.02 in excess of amounts required
hereunder to pay the Redemption Price. 
If any Note called for redemption is exchanged pursuant hereto prior to
such Redemption Date, any money deposited with the Paying Agent or so
segregated and held in trust for the redemption of such Note shall be paid to
the Issuer or, if then held by the Issuer, shall be discharged from such trust.


 


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


 


Upon any redemption of less than all of the
outstanding Notes, the Issuer and the Trustee may (but need not), solely for
purposes of determining the pro rata
allocation among such Notes that are unexchanged and outstanding at the time of
redemption, treat as outstanding any Notes surrendered for exchange during the
period of fifteen (15) calendar days preceding the mailing of a notice of
redemption and may (but need not) treat as outstanding any Note authenticated
and delivered during such period in exchange for the unexchanged portion of any
Note exchanged in part during such period.


 


Section 3.03.                  Payment of Notes Called for Redemption by the Issuer.  If notice of redemption has been given as
provided in Section 3.02, the Notes or portions of Notes with respect to
which such notice has been given shall, unless exchanged pursuant to the terms
hereof, become due and payable on the Redemption Date and at the place or
places stated in such notice at the Redemption Price, and unless the Issuer
shall default in the payment of the Redemption Price, (a) such Notes will
cease to be outstanding and (b) interest on the Notes or portions of Notes
so called for redemption shall cease to accrue on and after the Redemption
Date, and all rights of Holders of such Notes will terminate except for the
right to receive the Redemption Price (or if the Notes have been surrendered
for exchange, the cash and, if applicable, shares of Common Stock due upon such
exchange) and, after the close of business on the second Business Day
immediately preceding the Redemption Date (unless the Issuer shall default in
the payment of the Redemption Price), such Notes shall cease to be exchangeable
pursuant to this Indenture and, except
as provided in Section 12.01, to be entitled to any benefit or security
under this Indenture, and the Holders thereof shall have no right in respect of
such Notes except the right to receive the Redemption Price thereof or, if the
Notes have been tendered for exchange, the cash and, if applicable, shares of
Common Stock due upon such exchange.  On
presentation and 


 


23

















 


surrender of such
Notes at the place of payment specified in said notice, such Notes or the
specified portions thereof shall be paid and redeemed by the Issuer at the
Redemption Price, together with interest accrued thereon to, but excluding, the
Redemption Date.


 


Upon
presentation of any Note redeemed in part only, the Issuer shall execute and
upon receipt of such new Note the Trustee shall authenticate and make available
for delivery to the Holder thereof, at the expense of the Issuer, a new Note or
Notes, of authorized denominations, in principal amount equal to the unredeemed
portion of the Notes so presented.


 


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


 


ARTICLE 4

REPURCHASE OF NOTES UPON A DESIGNATED EVENT


 


Section 4.01.                  Repurchase at Option of Holders Upon a Designated Event.  (a)  If there shall occur a Designated
Event at any time prior to the Maturity Date, then each Noteholder shall have
the right, at such Holder’s option, to require the Issuer to repurchase all of
such Holder’s Notes, or any portion thereof that is a multiple of $1,000
principal amount, in cash, on a date (the “Designated
Event Repurchase Date”) specified by the Issuer, which may be no
earlier than fifteen (15) days and no later than thirty (30) days after the
date of the Issuer Designated Event Repurchase Notice related to such
Designated Event, at a repurchase price equal to 100% of the principal amount
of the Notes being repurchased, plus accrued and unpaid interest to, but
excluding, the Designated Event Repurchase Date (the “Designated Event Repurchase Price”); provided, however,
that if the Designated Event Repurchase Date falls after a Record Date and on
or prior to the corresponding interest payment date, the Issuer shall pay the
full amount of accrued and unpaid interest, if any, on such interest payment
date to the Holder of record at the close of business on the corresponding
Record Date, and the Designated Event Repurchase Price will be 100% of the
principal amount of the Notes to be repurchased.


 


(b)           On
or before the 20th calendar day
after the occurrence of a Designated Event (such date, the “Issuer Designated Event Repurchase Notice Date”),
the Issuer shall give or cause to be given to all Holders of record on the date
of the Designated Event (and to beneficial owners as required by applicable
law) a notice (an “Issuer Designated Event
Repurchase Notice”) as set forth in Section 4.02 with respect
to such Designated Event.  The Issuer
shall also deliver a copy of the Issuer Designated Event Repurchase Notice to
the Trustee, Exchange Agent and the Paying Agent at such time as it is given to
Noteholders.  In addition to the giving
of such Issuer Designated Event Repurchase Notice, the Issuer shall disseminate
a press release announcing the occurrence of such Designated Event or publish
such information in The Wall Street Journal or another newspaper of general
circulation in The City of New York or on the Company’s website, or through
such other public medium as the Issuer shall deem appropriate at such time.


 


No failure of the Issuer to give the foregoing notices
and no defect therein shall limit the Noteholders’ repurchase rights or affect
the validity of the proceedings for the repurchase of the Notes pursuant to
this Section 4.01.


 


24

















 


(c)           For
a Note to be repurchased at the option of the Holder pursuant to this Section 4.01(c),
the Holder must deliver to the Paying Agent, prior to the close of business on
the second Business Day immediately prior to the Designated Event Repurchase
Date, (i) a written notice of repurchase (the “Designated Event Repurchase Notice”) in the form set forth on
the reverse of the Note duly completed specifying (A) (if the Note is
certificated) the certificate number of the Note that the Holder will deliver
to be repurchased or (if the Note is represented by a Global Note) that the
relevant Designated Event Repurchase Notice complies with the appropriate
Depositary procedures, (B) the portion of the principal amount of the Note
which the Holder will deliver to be repurchased, which portion must be in
principal amounts of $1,000 or an integral multiple of $1,000 (provided that the remaining principal amount of Notes not
subject to repurchase must be in an authorized denomination) and (C) that
such Note shall be repurchased as of the Designated Event Repurchase Date
pursuant to the terms and conditions specified in the Note and in this
Indenture; together with (ii) such Notes duly endorsed for transfer (if
the Note is certificated) or book-entry transfer of such Note (if such Note is
represented by a Global Note).  The
delivery of such Note to the Paying Agent with, or at any time after delivery
of, the Designated Event Repurchase Notice (together with all necessary
endorsements) at the office of the Paying Agent shall be a condition to the
receipt by the Holder of the Designated Event Repurchase Price therefor; provided, however, that
such Designated Event Repurchase Price shall be so paid pursuant to this Section 4.01
only if the Notes so delivered to the Paying Agent shall conform in all
respects to the description thereof in the Designated Event Repurchase
Notice.  All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Note
for repurchase shall be determined by the Issuer, whose determination shall be
final and binding absent manifest error, and the Trustee and Paying Agent may
rely and shall be fully protected in relying on such determination by the
Issuer.


 


(d)           The
Issuer, if so requested, shall repurchase from the Holder thereof, pursuant to
this Section 4.01, a portion of a Note, if the principal amount of such
portion is $1,000 or an integral multiple of $1,000.  Provisions of this Indenture that apply to
the repurchase of all of a Note also apply to the repurchase of such portion of
such Note.


 


(e)           Notwithstanding
the foregoing, no Notes may be repurchased by the Issuer pursuant to this Section 4.01
if the principal amount of the Notes has been accelerated, and such
acceleration has not been rescinded or cured, on or prior to the relevant
Repurchase Date (except in the case of an acceleration resulting from a default
by the Issuer in the payment of the Designated Event Repurchase Price pursuant
to this Section 4.01 with respect to the Notes to be repurchased).


 


(f)            The
Paying Agent shall promptly notify the Issuer of the receipt by it of any
Designated Event Repurchase Notice or written notice of withdrawal thereof.


 


Any repurchase by the Issuer contemplated pursuant to
the provisions of this Section 4.01 shall be consummated by the delivery
of the consideration to be received by the Holder on the later of (x) two (2) Business
Days following the time of book-entry transfer or delivery of such Note to the
Paying Agent by the Holder thereof in the manner required by this Section 4.01
and (y) the Designated Event Repurchase Date with respect to such Note (provided the Holder has satisfied the conditions in this Section 4.01).  Payment of the Designated Event Repurchase
Price on the Designated Event Repurchase Date for a Note for which a Designated
Event Repurchase


 


25
















 


Notice has been delivered and not withdrawn is
conditioned upon book-entry transfer or delivery of the Notes, together with
necessary endorsements, to the Paying Agent prior to the close of business on
the second Business Day prior to the Designated Event Repurchase Date.


 


Section 4.02.                  Issuer Designated Event Repurchase Notice.  (a)  In connection with any repurchase
of Notes, the Issuer shall, on the applicable Issuer Designated Event
Repurchase Notice Date, give written notice to Holders, as provided in Section 4.01(b),
setting forth information specified in this Section 4.02.


 


Each Issuer Designated Event Repurchase Notice shall:


 


(i)          state the Designated Event Repurchase Price, and the
Designated Event Repurchase Date to which the relevant Issuer Designated Event
Repurchase Notice relates;


 


(ii)         state, if applicable, the circumstances constituting the
Designated Event;


 


(iii)        state that Holders must exercise their right to elect to
repurchase prior to the close of business on the second Business Day immediately
prior to the Designated Event Repurchase Date;


 


(iv)        include a form of Designated Event Repurchase Notice;


 


(v)         state the name and address of the Trustee, the Paying Agent
and, if applicable, the Exchange Agent;


 


(vi)        state that Notes must be surrendered to the Paying Agent to
collect the Designated Event Repurchase Price;


 


(vii)       state that a Holder may withdraw its Designated Event
Repurchase Notice at any time prior to the close of business on the second
Business Day immediately prior to the Designated Event Repurchase Date, by
delivering a valid written notice of withdrawal in accordance with Section 4.03;


 


(viii)      if the Notes are then exchangeable, state
that Notes as to which the Designated Event Repurchase Notice has been given
may be exchanged only if the Designated Event Repurchase Notice is withdrawn in
accordance with the terms of this Indenture;


 


(ix)         state the amount of interest accrued and unpaid per $1,000
principal amount of Notes to, but excluding, the Designated Event Repurchase
Date;


 


(x)          state that, unless the Issuer defaults in making payment of
the Designated Event Repurchase Price, interest on Notes covered by any
Designated Event Repurchase Notice shall cease to accrue on and after the
Designated Event Repurchase Date;


 


26

















 


(xi)         state the CUSIP number of the Notes, if CUSIP numbers are
then in use; and


 


(xii)        state the procedures for withdrawing a Designated Event
Repurchase Notice, including a form of notice of withdrawal (as specified in Section 4.03).


 


An Issuer Designated Event Repurchase Notice may be
given by the Issuer or, at the Issuer’s Request, the Trustee shall give such
Issuer Designated Event Repurchase Notice in the Issuer’s name and at the
Issuer’s expense; provided that the text of the
Issuer Designated Event Repurchase Notice shall be prepared by the Issuer, and
the Trustee, in giving such notice, may rely and shall be fully protected in
relying upon such Issuer Request and shall have no responsibility for text prepared
by the Issuer.


 


If any of the Notes is represented by a Global Note,
then the Issuer will modify such Issuer Designated Event Repurchase Notice to
the extent necessary to accord with the applicable procedures of the Depositary
that apply to the repurchase of Global Notes, and the Trustee may rely and
shall be fully protected in relying upon such text prepared by the Issuer.


 


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


 


Section 4.03.                  Effect of Designated Event Repurchase Notice; Withdrawal.  Upon receipt by the Paying Agent of the
Designated Event Repurchase Notice, the Holder of the Note in respect of which
such Designated Event Repurchase Notice was given shall (unless such Designated
Event Repurchase Notice is validly withdrawn in accordance with this Section 4.03)
thereafter be entitled to receive solely the Designated Event Repurchase Price
with respect to such Note.  Such
Designated Event Repurchase Price shall be paid to such Holder on the later of (x) the
second Business Day following the time of book-entry transfer or delivery of
such Note to the Paying Agent by the Holder thereof in the manner required by
this Section 4.03 and (y) the Designated Event Repurchase Date with
respect to such Note (provided
the Holder has satisfied the conditions in Section 4.01).


 


Notes in respect of which a Designated Event
Repurchase Notice has been given by the Holder thereof may not be exchanged
pursuant to Article 15 hereof on or after the date of the delivery of such
Designated Event Repurchase Notice unless such Designated Event Repurchase
Notice has first been validly withdrawn.


 


A Designated Event Repurchase Notice may be withdrawn
by means of a written notice of withdrawal delivered to the office of the
Paying Agent at any time prior to the close of business on the second Business
Day immediately prior to the Designated Event Repurchase Date specifying:


 


(a)           the
name of the Holder;


 


27

















 


(b)           the
certificate number(s) of all withdrawn Notes in certificated form or that
the notice of withdrawal complies with appropriate Depositary procedures with
respect to all withdrawn Notes represented by a Global Note;


 


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


 


(d)           the
principal amount of Notes, if any, that remains subject to the original
Designated Event Repurchase Notice and that has been or will be delivered for
repurchase by the Issuer.


 


If a Designated Event Repurchase Notice is properly
withdrawn, the Issuer shall not be obligated to repurchase the Notes listed in
such Designated Event Repurchase Notice.


 


Section 4.04.                  Deposit of Designated Event Repurchase Price.  (a)  Prior to 11:00 a.m., New York
City time, on the Designated Event Repurchase Date, the Issuer shall deposit
with the Paying Agent or, if the Issuer is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 5.04 an amount of cash
(in immediately available funds if deposited on the Designated Event Repurchase
Date), sufficient to pay the aggregate Designated Event Repurchase Price of all
the Notes or portions thereof that are to be repurchased as of the Designated
Event Repurchase Date.


 


(b)           If
on the Designated Event Repurchase Date the Paying Agent holds money sufficient
to pay the Designated Event Repurchase Price of the Notes that Holders have
elected to require the Issuer to repurchase in accordance with Section 4.01,
then, on the Designated Event Repurchase Date such Notes will cease to be
outstanding, interest will cease to accrue and all other rights of the Holders
of such Notes will terminate, other than the right to receive the Designated
Event Repurchase Price upon delivery or book-entry transfer of the Note or, if
such Notes have been timely tendered for exchange, the cash and, if applicable,
shares of Common Stock due upon such exchange. 
This will be the case whether or not book-entry transfer of the Notes
has been made or the Notes have been delivered to the Paying Agent.


 


Section 4.05.                  Notes Repurchased in Part. 
Upon presentation of any Note repurchased only in part, the Issuer shall
execute and upon receipt of such new Note or Notes the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Issuer, a new Note or Notes in aggregate principal amount equal
to the unrepurchased portion of the Notes presented (provided that the unrepurchased portion of the Notes must be
in an integral multiple of $1,000).


 


Section 4.06.                  Repayment to the Issuer. 
Subject to Section 12.04, upon Issuer Request the Paying Agent shall
return to the Issuer any cash that remains unclaimed, held by it for the
payment of the Designated Event Repurchase Price; provided that to the extent that the aggregate amount of
cash deposited by the Issuer pursuant to Section 4.04 exceeds the aggregate
Designated Event Repurchase Price of the Notes or portions thereof which the
Issuer is obligated to repurchase as of the Designated Event Repurchase Date
then, unless otherwise agreed in writing with the Issuer, promptly after the
second Business Day following the Designated Event 


 


28

















 


Repurchase Date the
Paying Agent shall return any such excess to the Issuer, together with
interest, if any, thereon.


 


ARTICLE 5

PARTICULAR COVENANTS OF THE ISSUER


 


Section 5.01.                  Payment of Principal, Premium and Interest.  The Issuer covenants and agrees that it will
duly and punctually pay or cause to be paid when due the principal of
(including the Redemption Price upon redemption or the Designated Event
Repurchase Price upon repurchase, in each case pursuant to Article 3 and Article 4),
and premium, if any, and interest on each of the Notes at the places, at the
respective times and in the manner provided herein and in the Notes.


 


Section 5.02.                  Maintenance of Office or Agency.  The Issuer will maintain an office or agency
in the Borough of Manhattan, where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for
exchange, redemption or repurchase and where notices and demands to or upon the
Issuer in respect of the Notes and this Indenture may be served; provided, however,
that the Notes may be so surrendered or presented instead to the Trustee at the
Corporate Trust office at the Holder’s or Issuer’s option.  The Issuer will 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 Issuer shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office.


 


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


 


The Issuer hereby initially designates the Trustee as
Paying Agent, Note Registrar, Custodian and Exchange Agent and the Corporate
Trust Office shall be considered as one such office or agency of the Issuer for
each of the aforesaid purposes.  The provisions
of Article 8 of this Indenture shall also apply to the Trustee in each of
its roles as Paying Agent, Note Registrar, Custodian, and Exchange Agent,
respectively.


 


So long as the Trustee is the Note Registrar, the
Trustee agrees to mail, or cause to be mailed, at the expense of the Issuer,
the notices set forth in Section 8.08(f). 
If co-registrars have been appointed in accordance with this Section 5.02,
the Trustee shall mail such notices only to the Issuer and the Holders of Notes
it can identify from its records.


 


Section 5.03.                  Appointments to Fill Vacancies in Trustee’s Office.  The Issuer, whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, upon the terms and
conditions and otherwise as provided in Section 8.08, a Trustee, so that
there shall at all times be a Trustee hereunder.


 


Section 5.04.                  Provisions as to Paying Agent.  (a) If the Issuer shall appoint a Paying
Agent other than the Trustee, or if the Trustee shall appoint such a Paying
Agent, the Issuer will 


 


29

















 


cause such Paying
Agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 5.04:


 


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


 


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


 


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


 


The Issuer shall, on or before each due date of the
principal of, premium, if any, or interest on the Notes, deposit with the
Paying Agent a sum (in funds which are immediately available on the due date
for such payment) sufficient to pay such principal, premium, if any, or
interest and (unless such Paying Agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action; provided
that if such deposit is made on the due date, such deposit shall be received by
the Paying Agent by 11:00 a.m.  New
York City time, on such date.


 


(b)           If
the Issuer shall act as its own Paying Agent, it will, on or before each due
date of the principal of, premium, if any, or interest on the Notes, set aside,
segregate and hold in trust for the benefit of the Holders of the Notes a sum
sufficient to pay such principal, premium, if any, and interest so becoming due
and will promptly notify the Trustee of any failure to take such action and of
any failure by the Issuer (or any other obligor under the Notes) to make any
payment of the principal of, premium, if any, or interest on the Notes when the
same shall become due and payable.


 


(c)           Anything
in this Section 5.04 to the contrary notwithstanding, the Issuer may, at
any time, for the purpose of obtaining a satisfaction and discharge of this
Indenture, or for any other reason, pay or cause to be paid to the Trustee all
sums held in trust by the Issuer or any Paying Agent hereunder as required by
this Section 5.04, such sums to be held by the Trustee upon the trusts
herein contained and upon such payment by the Issuer or any Paying Agent to the
Trustee, the Issuer or such Paying Agent shall be released from all further
liability with respect to such sums.


 


(d)           Anything
in this Section 5.04 to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section 5.04 is subject to Section 12.02
and Section 12.03.


 


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


 


Section 5.05.                  Existence.  Subject to
Article 11, each of the Issuer and the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its 


 


30

















 


existence and all
material rights and material franchises; provided,
however, that neither the Issuer
nor the Company shall be required to preserve any such right or franchise if
the Issuer or the Board of Directors, as applicable, shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Issuer or the Company, as applicable.


 


Section 5.06.                  Stay, Extension and Usury Laws.  The Issuer and the Company each covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer and the Company each (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 5.07.                  Compliance Certificate. 
The Issuer and the Company will deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
of the Company as to his or her knowledge of the Issuer’s and the Company’s
compliance with all conditions and covenants under this Indenture and, in the event
of any noncompliance, specifying such noncompliance and the nature and status
thereof.  For purposes of this Section 5.07,
such compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.


 


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


 


Any notice required to be given under this Section 5.07
shall be delivered to a Responsible Officer of the Trustee at its Corporate
Trust Office.


 


Section 5.08.                  Additional Interest Notice. 
In the event that the Issuer is required to pay Additional Interest to
Holders of Notes pursuant to the Registration Rights Agreement, the Issuer will
provide written notice (“Additional Interest
Notice”) to the Trustee of its obligation to pay Additional Interest
no later than fifteen (15) calendar days prior to the proposed interest payment
date for Additional Interest, and the Additional Interest Notice shall set forth
the amount of Additional Interest to be paid by the Issuer on such interest
payment date.  The Trustee shall not at
any time be under any duty or responsibility to any Holder of Notes to
determine the Additional Interest, or with respect to the nature, extent or
calculation of the amount of Additional Interest when made, or with respect to
the method employed in such calculation of the Additional Interest.


 


31

















 


ARTICLE 6

NOTEHOLDERS’ LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE


 


Section 6.01.                  Noteholders’ Lists. 
The Issuer will furnish or cause to be furnished to the Trustee:


 


(a)           semiannually,
not later than 15 days after the Record Date for interest for the Notes, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Notes as of such Record Date, and


 


(b)           at
such other times as the Trustee may request in writing, within 30 days after
the receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished, provided, however,
that, so long as the Trustee is the Note Registrar, no such list shall be
required to be furnished.


 


Section 6.02.                  Preservation and Disclosure of Lists.  Every Holder of Notes, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Note Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Notes in accordance
with TIA Section 312, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).


 


Section 6.03.                  Reports by Trustee. 
The Trustee shall transmit to the Holders of Notes such reports
concerning the Trustee and its actions under this Indenture as may be required
by TIA Section 313 at the times and in the manner provided by the TIA,
which shall initially be not less than every twelve months commencing on January 1,
2011 and may be dated as of a date up to 75 days prior to such
transmission.  A copy of each such report
shall, at the time of such transmission to Holders of Notes, be filed by the
Trustee with each stock exchange, if any, upon which any Notes are listed, with
the Commission and with the Issuer.  The
Issuer will notify the Trustee when any Notes are listed or delisted on any
stock exchange.


 


Section 6.04.                  Reports by Issuer. 
The Issuer will:


 


(a)           deliver
to the Trustee, within 15 days after the Issuer actually files the same with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the Issuer may be required to file with the Commission pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934; documents
that are filed with the Commission via the EDGAR system, or any successor
system thereto, will be deemed filed with the Trustee as of the time such
documents are filed via such system;


 


(b)           file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer
with the conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations;


 


32

















 


(c)           transmit
by mail to the Holders of Notes, within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in TIA Section 313(c),
such summaries of any information, documents and reports required to be filed
by the Issuer pursuant to paragraphs (a) and (b) of this Section 6.04
as may be required by rules and regulations prescribed from time to time
by the Commission;


 


(d)           until
the Maturity Date, provide upon request the information required by Rule 144A(d)(4) to
each Noteholder and to each beneficial owner and prospective purchaser of Notes
and of any shares of Common Stock delivered upon exchange of the Notes, unless
such information has been furnished to the Commission pursuant to Section 13
or 15(d) of the Exchange Act; and


 


(e)           be
deemed, for purposes of this Section 6.04, to have furnished or delivered
reports to the Noteholders if (i) such reports are filed with the Commission
via the EDGAR filing system and (ii) such reports are currently
available.  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).


 


ARTICLE 7

REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT


 


Section 7.01.                  Events of Default.  In
case one or more of the following (“Events of
Default”) shall have occurred and be continuing:


 


(a)           default
in the payment of any interest on the Notes when such interest becomes due and
payable that continues for a period of 30 days;


 


(b)           default
in the payment of the principal of the Notes or any Designated Event Repurchase
Price or Redemption Price due with respect to the Notes, when due and payable;


 


(c)           failure
to deliver cash and, if applicable, Common Stock within ten (10) days
after the due date upon an exchange of Notes pursuant to Article 15,
together with any cash due in lieu of fractional shares;


 


(d)           default
in the performance, or breach, of any of the Issuer’s other covenants or
warranties in this Indenture with respect to the Notes and continuance of such
default or breach for a period of 60 days after the Issuer has been given
written notice as provided in Section 8.01 by the Trustee or by the
Holders of at least 25% in principal amount of the Notes specifying such
default or breach and requiring it to be remedied and stating that such notice
is a “Notice of Default” under Section 8.01;


 


(e)           default
under any bond, evidence of recourse indebtedness of the Issuer or the
Guarantor, or under any mortgage, indenture or other instrument under which
there may be issued or by which there may be secured or evidenced any recourse
indebtedness for money 


 


33

















 


borrowed by the Issuer or the Guarantor (or by any Subsidiary the
repayment of which the Issuer or the Guarantor has guaranteed or for which the
Issuer or the Guarantor is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay an aggregate principal amount
exceeding $50,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period and shall have resulted in such
indebtedness in an aggregate principal amount exceeding $50,000,000 becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged,
or such acceleration having been rescinded or annulled, within a period of 15
days after the Issuer has been given written notice as provided in Section 8.01
by the Trustee or by the Holders of at least 10% in principal amount of the
Notes specifying such default and requiring the Issuer or the Guarantor, as the
case may be, to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a “Notice
of Default” under Section 8.01;


 


(f)            the
Issuer’s failure to issue notice of any event described under Section 15.01(a)(iv) of
this Indenture as required under this Indenture and such failure continues for
five days;


 


(g)           the
Issuer’s failure to provide on a timely basis an Issuer Designated Event
Repurchase Notice after the occurrence of a Designated Event as provided in Section 4.01(b);


 


(h)           the
Company, the Issuer, the Guarantor or any of its Significant Subsidiaries
pursuant to or under or within meaning of any Bankruptcy Law:


 


(i)          commences a voluntary case; or


 


(ii)         consents to the entry of an order for relief against it in
an involuntary case; or


 


(iii)        consents to the appointment of any receiver, trustee,
assignee, liquidator or other similar official under any Bankruptcy Law of it or
for all or substantially of its property; or


 


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


 


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


 


(i)          is for relief against the Company, the Issuer, the
Guarantor or any of its Significant Subsidiaries in an involuntary case; or


 


(ii)         appoints a trustee, receiver, liquidator, custodian or other
similar official of the Company, the Issuer, the Guarantor or any of its
Significant Subsidiaries or for all or substantially all of its property; or


 


(iii)        orders the liquidation of the Company, the Issuer, the
Guarantor or a Significant Subsidiary;


 


34

















 


and, in each case in this clause (i), the order or
decree remains unstayed and in effect for 90 calendar days;


 


(j)            the
Guarantee shall for any reason cease to be, or shall for any reason be asserted
in writing by the Issuer or the Guarantor not to be, in full force and effect
and enforceable in accordance with its terms, except to the extent contemplated
by this Indenture and the Guarantee, and the continuance of such default for a
period of 60 days after the Issuer has been given written notice as provided in
Section 8.01 by the Trustee or by the Holders of at least 25% in principal
amount of the Notes specifying such default and requiring it to be remedied and
stating that such notice is a “Notice of Default” under Section 8.01;


 


then, and in each and every such case (other than an
Event of Default specified in Section 7.01(h) and Section 7.01(i) with
respect to the Issuer or the Guarantor), unless the principal of all of the
Notes shall have already become due and payable, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, by notice in writing to the Issuer and the Company (and to the
Trustee if given by Noteholders), may declare the principal amount of and
premium, if any, and interest accrued and unpaid on all the Notes to be
immediately due and payable, and upon any such declaration the same shall be
immediately due and payable.


 


If an Event of Default specified in Section 7.01(h) or
Section 7.01(i) occurs and is continuing, then the principal amount
of and premium, if any, and interest accrued and unpaid on all the Notes shall
be immediately due and payable without any declaration or other action on the
part of the Trustee or any Holder of Notes.


 


If, at any time after the principal amount of and
premium, if any, and interest on the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, Holders of a
majority in aggregate principal amount of the Notes then outstanding on behalf
of the Holders of all of the Notes then outstanding, by written notice to the
Issuer and to the Trustee, may waive all defaults or Events of Default and
rescind and annul such declaration and its consequences, subject in all
respects to Section 7.07, if: (a) all Events of Default, other than
the nonpayment of the principal amount and any accrued and unpaid interest, in
each case, that have become due solely because of such acceleration, have been
cured or waived; (b) interest on overdue installments of interest (to the
extent that payment of such interest is lawful) and on overdue principal, which
has become due otherwise than by such declaration of acceleration, has been
deposited with the Trustee; and (c) the Issuer or the Company has paid the
Trustee its reasonable compensation and reimbursed the Trustee for its
expenses, disbursements and advances pursuant to Section 8.06.  No such rescission and annulment shall extend
to or shall affect any subsequent default or Event of Default, or shall impair
any right consequent thereon.


 


In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have been
discontinued or abandoned because of such waiver or rescission and annulment or
for any other reason or shall have been determined adversely to the Trustee,
then and in every such case the Issuer, the Holders of Notes, and the Trustee
shall be restored respectively to their several positions and rights hereunder,
and all rights, remedies and


 


35
















 


powers of the Issuer, the Holders of Notes, and the
Trustee shall continue as though no such proceeding had been taken.


 


Section 7.02.                  Payments of Notes on Default; Suit Therefor.  The Issuer and the Guarantor covenant that in
the case of an Event of Default pursuant to Section 7.01(a) or
7.01(b), upon demand of the Trustee, the Issuer and the Guarantor will pay to
the Trustee, for the benefit of the Holders of the Notes, (i) the whole
amount that then shall be due and payable on all such Notes for principal and
premium, if any, or interest, as the case may be, with interest upon the
overdue principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of
accrued and unpaid interest at the rate borne by the Notes from the required
payment date and, (ii) in addition thereto, any amounts due the Trustee
under Section 8.06.  Until such
demand by the Trustee, the Issuer may pay the principal of and premium, if any,
and interest on the Notes to the registered Holders, whether or not the Notes
are overdue.


 


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


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, the Issuer or
any other obligor upon the Notes or the property of the Company, the Issuer or
of such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Notes shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Issuer for the payment of overdue principal
(including the Redemption Price or Designated Event Repurchase Price upon
redemption or repurchase pursuant to Article 3 and Article 4)) shall
be entitled and empowered, by intervention in such proceeding or otherwise: (i) to
file and prove a claim for the whole amount of principal (including the
Redemption Price or Designated Event Repurchase Price upon redemption or
repurchase pursuant to Article 3 and Article 4) and interest owing and
unpaid in respect of the Notes and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders of
Notes allowed in such judicial proceeding, and (ii) to collect and receive
any moneys or other property payable or deliverable on any such claims and to
distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such judicial
proceeding is hereby authorized by each Holder of Notes to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders of Notes, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and counsel,
and any other amounts due the Trustee or any predecessor Trustee under Section 8.06.  Nothing herein contained shall be deemed to
authorize 


 


36

















 


the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder of a Note any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of
any Holder of Notes in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders of
Notes, vote for the election of a trustee in bankruptcy or similar official and
may be a member of the creditors’ committee.


 


All rights of action and of asserting claims under
this Indenture, or under any of the Notes, may be enforced by the Trustee
without the possession of any of the Notes, or the production thereof at any
trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts owed to the Trustee
or any predecessor Trustee under Section 8.06, be for the ratable benefit
of the Holders of the Notes.


 


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


 


Section 7.03.                  Application of Monies Collected by Trustee.  Any monies collected by the Trustee pursuant
to this Article 7 shall be applied, in the following order, at the date or
dates fixed by the Trustee for the distribution of such monies, upon
presentation of the several Notes, and stamping thereon the payment, if only
partially paid, and upon surrender thereof, if fully paid:


 


FIRST:                    To
the payment of costs and expenses of collection, including all sums paid or
advanced by the Trustee hereunder and the reasonable compensation, expenses and
disbursements of the Trustee, its agents and counsel and all other amounts due
the Trustee and any predecessor Trustee under Section 8.06;


 


SECOND:               To
the payment of the amounts then due and unpaid upon the Notes for principal
(including the Redemption Price or Designated Event Repurchase Price upon
redemption or repurchase pursuant to Article 3 and Article 4) and
interest, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the aggregate amounts due and payable on the Notes for principal (including the
Redemption Price or Designated Event Repurchase Price upon redemption or
repurchase pursuant to Article 3 and Article 4) and interest,
respectively; and


 


THIRD:                  To
the payment of the remainder, if any, to the Issuer.


 


The Trustee may fix a record date and payment date for
any such payment to Holders.


 


Section 7.04.                  Proceedings by Noteholders. 
No Holder of any Note shall have any right by virtue of or by reference
to any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect to this Indenture, or for the
appointment of a receiver, trustee, liquidator, custodian or other similar
official, or for any other 


 


37

















 


remedy hereunder, except in the case of a default in the
payment of principal, premium, if any, or interest on the Notes, unless (a) such
Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof, as hereinbefore provided, (b) the
Holders of at least twenty-five percent (25%) in aggregate principal amount of
the Notes then outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such indemnity as it may require against
the costs, liabilities or expenses to be incurred therein or thereby, (c) the
Trustee for sixty (60) calendar days after its receipt of such notice, request
and offer of indemnity, shall have failed to institute any such action, suit or
proceeding and (d) no direction that, in the reasonable opinion of the
Trustee, is inconsistent with such written request shall have been given to the
Trustee by Holders of a majority in aggregate principal amount of Notes then
outstanding; it being understood and intended, and being expressly covenanted
by the taker and Holder of every Note with every other taker and Holder and the
Trustee, that no one or more Holders of Notes shall have any right in any
manner whatever by virtue of or by reference to any provision of this Indenture
to affect, disturb or prejudice the rights of any other Holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Notes (except as otherwise provided herein).  For the protection and enforcement of this Section 7.04,
each and every Noteholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.


 


Notwithstanding any other provision of this Indenture
and any provision of any Note, the right of any Holder of any Note to receive
payment of the principal of (including the Redemption Price or Designated Event
Repurchase Price upon redemption or repurchase pursuant to Article 3 and Article 4)
and premium, if any, and accrued interest on such Note, on or after the
respective due dates expressed in such Note or in the event of redemption or
repurchase, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Issuer shall not be impaired or
affected without the consent of such Holder.


 


Anything contained in this Indenture or the Notes to
the contrary notwithstanding, the Holder of any Note, without the consent of
either the Trustee or the Holder of any other Note, in its own behalf and for
its own benefit, may enforce, and may institute and maintain any proceeding
suitable to enforce, its rights of exchange as provided in Article 15.


 


Section 7.05.                  Proceedings by Trustee. 
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Notes under this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.


 


Section 7.06.                  Remedies Cumulative and Continuing.  All powers and remedies given by this Article 7
to the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder of any of the Notes to 


 


38

















 


exercise any right
or power accruing upon any default or Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be
a waiver of any such default or any acquiescence therein, and, subject to the
provisions of Section 7.04, every power and remedy given by this Article 7
or by law to the Trustee or to the Noteholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Noteholders.


 


Section 7.07.                  Direction of Proceedings and Waiver of Defaults by Majority of
Noteholders.  The Holders of
not less than a majority in aggregate principal amount of the Notes at the time
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee; provided
that (a) such direction shall not be in conflict with any rule of law
or with this Indenture, (b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction, and (c) the
Trustee need not take any action which might involve it in personal liability
or expense for which the Trustee has not received security or indemnity
satisfactory to it or be unduly prejudicial to the Holders of Notes not joining
therein, it being understood that (subject to Section 8.02) the Trustee
shall have no duty to ascertain whether or not such actions or forbearance are
unduly prejudicial to such Holders.


 


The Holders of a majority in aggregate principal
amount of the Notes at the time outstanding may, on behalf of the Holders of
all of the Notes, waive any past default or Event of Default hereunder and its
consequences subject to Section 7.01, except (i) a
default in the payment of the principal of (including the Redemption Price or
Designated Event Repurchase Price upon redemption or repurchase pursuant to Article 3
and Article 4), premium, if any, or interest on the Notes, (ii) a
failure by the Issuer to exchange any Notes as required by this Indenture or (iii) a
default in respect of a covenant or provisions hereof which under Article 10
cannot be modified or amended without the consent of the Holders of all Notes
then outstanding or each Note affected thereby.


 


Upon any such waiver, such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.


 


Section 7.08.                  Undertaking to Pay Costs. 
All parties to this Indenture agree, and each Holder of any Note by its
acceptance thereof shall be deemed to have agreed, that any court may, in its
discretion, require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 7.08
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent in principal amount of the Notes
at the time outstanding determined in accordance with Section 9.04, or to
any suit instituted by any Noteholder for the enforcement of the payment 


 


39

















 


of the principal of
(including the Redemption Price or Designated Event Repurchase Price upon
redemption or repurchase pursuant to Article 3 and Article 4), or
interest on any Note on or after the due date expressed in such Note or to any
suit for the enforcement of the right to exchange any Note in accordance with
the provisions of Article 15.


 


ARTICLE 8

THE TRUSTEE


 


Section 8.01.                  Notice of Defaults. 
Within 90 days after the occurrence of any default hereunder, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder actually known to a Responsible Officer of the
Trustee, unless a Responsible Officer of the Trustee shall have actual
knowledge that such default shall have been cured or waived; provided, however,
that, except in the case of a
default in the payment of the principal of (including the Redemption Price or
Designated Event Repurchase Price upon redemption or repurchase pursuant to Article 3
and Article 4) or interest on any Note or a default with respect to the
Issuer’s obligation to deliver, upon exchange, cash and shares of Common Stock,
if applicable, the Trustee shall be protected in withholding such notice if and
so long as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Notes; and
provided further that in the case
of any default or breach of the character specified in Section 7.01(d), no
such notice to Holders of Notes shall be given until at least 60 days after the
occurrence thereof.


 


Section 8.02.                  Certain Rights of Trustee. 
Subject to the provisions of TIA Section 315(a) through
315(d):


 


(a)           the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, Officers’ Certificate, Issuer
Request, Issuer Order, written request or order of the Issuer,
certificate, statement, calculations, instrument, Opinion of Counsel, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;


 


(b)           any
request or direction of the Issuer mentioned herein shall be sufficiently
evidenced by an Issuer Request, Issuer Order, or written request or order
of the Issuer (other than delivery of any Note to the Trustee for
authentication and delivery pursuant to Sections 2.01 and 2.04 which shall be
sufficiently evidenced as provided therein) and any resolution or determination
of the Board of Directors may be sufficiently evidenced by a Board Resolution;


 


(c)           whenever
in the administration of this Indenture the Trustee shall deem it desirable
that a matter be proved or established prior to taking, suffering or omitting
any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, require and rely upon
an Officers’ Certificate;


 


(d)           before
the Trustee acts or refrains from acting, the Trustee may consult with counsel
of its selection and the advice of such counsel or any Opinion of Counsel shall
be 


 


40

















 


full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;


 


(e)           the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the
Holders of Notes pursuant to this Indenture, unless such Holders shall have
offered to the Trustee security or indemnity reasonably satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;


 


(f)            the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, coupon or
other paper or document, unless requested in writing so to do by the Holders of
not less than a majority in aggregate principal amount of the outstanding
Notes; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it
by the terms of this Indenture, the Trustee may require indemnity satisfactory
to it against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Holders or,
if paid by the Trustee, shall be repaid by the Holders upon demand.  The Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Issuer, relevant to the facts or matters that are the subject of its
inquiry, personally or by agent or attorney;


 


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


 


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


 


(i)            in
no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action;


 


(j)            the
Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder;


 


(k)           the
permissive rights of the Trustee to do things enumerated in this Indenture
shall not be construed as a duty and the Trustee shall not be answerable for
other than its negligence or willful misconduct; and


 


(l)            except
for any event of which a Responsible Officer of the Trustee has “actual
knowledge” and which event, with the giving of notice or the passage of time or
both, 


 


41

















 


would constitute an Event of Default under this Indenture, the Trustee
shall not be deemed to have notice of any default or Event of Default unless
specifically notified in writing of such event by the Issuer or the Holders of
not less than 25% in aggregate principal amount of the Notes then outstanding;
as used herein, the term “actual knowledge”
means the actual fact or state of knowing, without any duty to make any
investigation with regard thereto.


 


The Trustee shall not be required to expend or risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.  Except during the continuance of
an Event of Default, the Trustee undertakes to perform only such duties as are
specifically to be performed by it as set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee.


 


The Trustee shall not be obligated to perform any
obligation hereunder and shall not incur any liability for the nonperformance
or breach of any obligation hereunder to the extent that the Trustee is delayed
in performing, unable to perform or breaches such obligation because of acts of
God, war, terrorism, fire, floods, strikes, work stoppages, accidents, civil or
military disturbances or natural catastrophes, electrical outages, equipment or
transmission failures, or other causes reasonably beyond its control, it being
understood that the Trustee shall use commercially reasonable efforts
consistent with accepted practices for corporate trustees to maintain
performance without delay or resume performance as soon as reasonably
practicable under the circumstances.


 


The Issuer will provide any information reasonably
requested by the Trustee, the Exchange Agent, or any Paying Agent in order to
comply with any applicable tax reporting requirements relating to the Notes.


 


All of the benefits, protections, privileges, immunities,
indemnities, and rights under this Indenture that apply to the Trustee also
apply to The Bank of New York Mellon, in its individual capacity and in its
respective other capacities hereunder (including, without limitation, as Note
Registrar, Paying Agent, Exchange Agent, and Custodian).


 


The Trustee may request that the Issuer and the
Company deliver a certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions pursuant
to this Indenture.


 


Section 8.03.                  Not Responsible for Recitals or Issuance of Notes.  The recitals contained herein and in the
Notes, except the Trustee’s
certificate of authentication, shall be taken as the statements of the Issuer,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness.  The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of
the Notes or of the Common Stock, the Common Stock Delivery Agreement, the
Offering Memorandum, or the Registration Rights Agreement except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder.  Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Issuer of Notes or
the proceeds thereof.


 


42

















 


Section 8.04.                  May Hold Notes and Common Stock.  The Trustee, any Paying Agent, Exchange
Agent, Note Registrar, the Custodian, Authenticating Agent or any other agent
of the Issuer and their affiliates, in its individual or any other capacity,
may become the owner or pledgee of Notes or Common Stock and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Issuer and the
Company with the same rights it would have if it were not Trustee, Paying
Agent, Exchange Agent, Note Registrar, Authenticating Agent or such other
agent.


 


Section 8.05.                  Money Held in Trust. 
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law.  The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Issuer in writing.


 


Section 8.06.                  Compensation and Reimbursement.  The Issuer, the Guarantor and the Company,
jointly and severally, agree:


 


(a)           to
pay to the Trustee from time to time, and the Trustee shall be entitled to,
compensation and as agreed to in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);


 


(b)           to
reimburse each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable expenses and disbursements of its
agents and counsel), except any such
expense, disbursement or advance as shall be determined to have been caused by
its own negligence or willful misconduct; and


 


(c)           to
indemnify each of the Trustee (including its officers, agents, and employees)
and any predecessor Trustee for, and to hold it harmless against, any loss,
claim, damage, liability or expense incurred without negligence or willful
misconduct on its part, determined to have been caused by the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.


 


When the Trustee incurs expenses or renders services
in connection with an Event of Default specified in Sections 7.01(h) or
7.01(i), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.


 


As security for the performance of the obligations of
the Issuer under this Section 8.06, the Trustee shall have a lien prior to
the Notes upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment
of principal of (including the Redemption Price or Designated Event Repurchase
Price upon redemption or repurchase pursuant to Article 3 and Article 4)
or interest on any Notes.  The provisions
of this Section 8.06 


 


43

















 


shall survive the termination or satisfaction and
discharge of this Indenture, the payment or exchange of the Notes, and the
resignation or removal of the Trustee.


 


Section 8.07.                  Corporate Trustee Required; Eligibility; Conflicting Interests.  There shall at all times be a Trustee
hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and
shall have a combined capital and surplus of at least $50,000,000.  If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 8.07, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.  Neither the Issuer nor any Person directly or
indirectly controlling, controlled by, or under common control with the Issuer
shall serve as Trustee.  If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section 8.07, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.


 


Section 8.08.                  Resignation and Removal; Appointment of Successor.


 


(a)           No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 8.09.


 


(b)           The
Trustee may resign at any time by giving written notice thereof to the
Issuer.  If an instrument of acceptance
by a successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition at the expense of the Issuer any court of competent jurisdiction for
the appointment of a successor Trustee.


 


(c)           The
Trustee may be removed at any time by Act of the Holders of a majority in
principal amount of the outstanding Notes delivered to the Trustee and to the
Issuer.


 


(d)           If
at any time:


 


(i)          the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Issuer or by any
Holder of a Note who has been a bona fide Holder of a Note for at least six
months, or


 


(ii)         the Trustee shall cease to be eligible under Section 8.07
and shall fail to resign after written request therefor by the Issuer or by any
Holder of a Note who has been a bona fide Holder of a Note for at least six
months, or


 


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


 


then, in any such case, (A) the Issuer by or
pursuant to a Board Resolution may remove the Trustee and appoint a successor
Trustee, or (B) subject to TIA Section 315(e), any Holder of a 


 


44

















 


Note who has been a bona fide Holder of a Note for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee or Trustees.


 


(e)           If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, the Issuer, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees.  If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the outstanding Notes delivered to the Issuer and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and to that extent
supersede the successor Trustee appointed by the Issuer.  If no successor Trustee shall have been so
appointed by the Issuer or the Holders of Notes and accepted appointment in the
manner hereinafter provided, any Holder of a Note who has been a bona fide
Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.


 


(f)            The
Issuer shall give notice of each resignation and each removal of the Trustee
and each appointment of a successor Trustee by mailing or causing to be mailed
such notice to the Holders of Notes as they appear on the Note Register.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


Section 8.09.                  Acceptance of Appointment By Successor.  (a)  In case of the appointment
hereunder of a successor Trustee, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
request of the Issuer or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided
for in Section 8.06.


 


(b)           In
case of the appointment hereunder of a successor Trustee, the Issuer, the
retiring Trustee and each successor Trustee shall execute and deliver an
indenture supplemental hereto, pursuant to Article 10 hereof, wherein each
successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee to which the appointment of such successor
Trustee relates, (ii) if the retiring Trustee is not retiring with respect
to all Notes, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee, and (iii) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee


 


45
















 


of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trust sand duties of the retiring
Trustee to which the appointment of such successor Trustee relates; but, on
request of the Issuer or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder to which the appointment of such
successor Trustee relates.


 


(c)           Upon
request of any such successor Trustee, the Issuer shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section 8.09, as the case may be.


 


(d)           No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.


 


Section 8.10.                  Merger, Conversion, Consolidation or Succession to Business.  Any corporation into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.  In case any Notes
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.  In case any
Notes shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.


 


Section 8.11.                  Appointment of Authenticating Agent.  At any time when any of the Notes remain
outstanding, the Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Notes so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. 
Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument
shall be promptly furnished to the Issuer. 
Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating
Agent.  Each Authenticating Agent shall
be acceptable to the Issuer and shall at all times be a bank or trust company
or corporation organized and doing business and in good standing under the laws
of the United States of America or of any state or the District of 


 


46

















 


Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or state authorities. 
If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid supervising or
examining authority, then for the purposes of this Section 8.11, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus asset forth in its most recent report of
condition so published.  In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 8.11, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 8.11.


 


Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section 8.11, without
the execution or filing of any paper or further act on the part of the Trustee
or the Authenticating Agent.


 


An Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the Issuer.  The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. 
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.11, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Issuer and shall give notice of such appointment to all Holders of Notes by
mailing or causing to be mailed such notice to the Holders of Notes as they
appear on the Note Register.  Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein.  No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section 8.11.


 


The Issuer agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement of its
reasonable expenses for its services under this Section 8.11.


 


If an appointment is made pursuant to this Section 8.11,
the Notes may have endorsed thereon, in addition to or in lieu of the Trustee’s
certificate of authentication, an alternate certificate of authentication
substantially in the following form:


 


This is one of the Notes designated therein referred
to in the within-mentioned Indenture.


 


	
   

  	
   

  	
  The Bank of New York Mellon, as Trustee

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  as Authenticating Agent

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized Signatory

  



 


47

















 


Section 8.12.                  Certain Duties and
Responsibilities of the Trustee.


 


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


 


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


 


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


 


(b)           In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.


 


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


 


(i)          this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section 8.12;


 


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


 


(iii)        the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the outstanding Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and


 


(iv)        no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.


 


48

















 


(d)           Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 8.12.


 


ARTICLE 9

THE NOTEHOLDERS


 


Section 9.01.                  Action by Noteholders. 
Whenever in this Indenture it is provided that the Holders of a
specified percentage in aggregate principal amount of the Notes may take any
action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that, at
the time of taking any such action, the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent
or proxy appointed in writing, or (b) by the record of the Holders of
Notes voting in favor thereof at any meeting of Noteholders, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders.  Whenever the
Issuer or the Trustee solicits the taking of any action by the Holders of the
Notes, the Issuer or the Trustee may fix in advance of such solicitation a date
as the record date for determining Holders entitled to take such action.  Such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Noteholders
generally in connection therewith and not later than the date such solicitation
is completed.  If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other act may be given before or after such record date, but only the
Noteholders of record at the close of business on such record date shall be
deemed to be Noteholders for the purposes of determining whether Holders of the
requisite proportion of outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other act, and for that purpose the outstanding Notes shall be
computed as of such record date; provided
that no such authorization, agreement or consent by the Noteholders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.


 


Section 9.02.                  Proof of Execution by Noteholders.  Subject to the provisions of Sections 8.02
and 8.12, proof of the execution of any instrument by a Noteholder or its agent
or proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.  The holding
of Notes shall be proved by the registry of such Notes or by a certificate of
the Note Registrar.


 


Section 9.03.                  Absolute Owners.  The
Issuer, the Trustee, any Paying Agent, any exchange agent and any Note
Registrar may deem the Person in whose name such Note shall be registered upon
the Note Register to be, and may treat it as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Issuer or
any Note Registrar) for the purpose of receiving payment of or on account of
the principal of (including the Redemption Price or Designated Event Repurchase
Price upon redemption or repurchase pursuant to Article 3 


 


49

















 


and Article 4),
premium, if any, and interest on such Note, for exchange of such Note and for
all other purposes; and neither the Issuer nor the Trustee nor any Paying Agent
nor any exchange agent nor any Note Registrar shall be affected by any notice
to the contrary.  All such payments so
made to any Holder for the time being, or upon its order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for monies payable upon any such Note.


 


Section 9.04.                  Issuer-owned Notes Disregarded.  In determining whether the Holders of the
requisite aggregate principal amount of Notes have given any request, demand,
authorization, direction, notice, consent or waiver under this Indenture or
whether a quorum is present a meeting of Noteholders, Notes that are owned by
the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer
or any other obligor on the Notes shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action, only Notes which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.  Notes so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section 9.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s
right to vote such Notes and that the pledgee is not the Issuer, any other
obligor on the Notes or any Affiliate of the Issuer or any such other
obligor.  In the case of a dispute as to
such right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.  Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers’ Certificate listing and identifying all Notes, if any, known by the
Issuer to be owned or held by or for the account of any of the above described
Persons, and, subject to Section 8.12, the Trustee shall be entitled to
accept such Officers’ Certificate as conclusive evidence of the facts therein
set forth and of the fact that all Notes not listed therein are outstanding for
the purpose of any such determination.


 


Section 9.05.                  Revocation of Consents; Future Holders Bound.  At any time prior to (but not after) the
evidencing to the Trustee, as provided in Section 9.01, of the taking of
any action by the Holders of the percentage in aggregate principal amount of
the Notes specified in this Indenture in connection with such action, any
Holder of a Note which is shown by the evidence to be included in the Notes the
Holders of which have consented to such action may, by filing written notice
with the Trustee at its Corporate Trust Office and upon proof of holding as
provided in Section 9.02, revoke such action so far as concerns such
Note.  Except as aforesaid, any such
action taken by the Holder of any Note shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Note and of any
Notes issued in exchange or substitution therefor, irrespective of whether any
notation in regard thereto is made upon such Note or any Note issued in
exchange or substitution therefor.


 


ARTICLE 10

SUPPLEMENTAL INDENTURES


 


Section 10.01.                Supplemental
Indentures Without Consent of Noteholders.  The Issuer, the Company and the Trustee may,
from time to time, and at any time enter into an indenture or indentures
supplemental without the consent of any Holder of the Notes hereto for any of
the following purposes:


 


50

















 


(a)           to
evidence a successor to the Issuer as obligor, or Reckson OP as Guarantor, or
to the Company under this Indenture;


 


(b)           to
add Events of Default for the benefit of the Holders of the Notes;


 


(c)           to
secure the Notes;


 


(d)           to
add a Guarantor under the Indenture or to release a Guarantor in accordance
with the Indenture;


 


(e)           to
provide for the acceptance of appointment of a successor Trustee or facilitate
the administration of the trusts under this Indenture by more than one Trustee;


 


(f)            to
cure any ambiguity, defect or inconsistency in this Indenture;


 


(g)           to
amend or supplement any provisions of this Indenture; provided
that no amendment or supplement shall materially adversely affect the interests
of the Holders of any Notes then outstanding; and provided,
further, that no modification or
amendment to cure any ambiguity, defect or inconsistency in the indenture or
the Notes made solely to conform the indenture to the “Description of Notes”
contained in the Offering Memorandum will be deemed to adversely affect the
interests of the Holders of the Notes;


 


(h)           to
add to the covenants of the Issuer, the Guarantor, or the Company for the
benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Issuer or the Company in this Indenture or in the Notes;


 


(i)            to
provide for Global Notes in addition to or in place of Certificated Notes, as
provided in this Indenture; and


 


(j)            to
modify this Indenture and the Notes to increase the Exchange Rate or reduce the
Exchange Price; provided that the increase or
reduction, as the case may be, is in accordance with the terms of the Notes or
will not adversely affect the interests of the Holders of the Notes.


 


Upon an Issuer Request authorizing the execution of
any supplemental indenture, the Trustee is hereby authorized to join with the
Issuer and the Company in the execution of any such supplemental indenture, to
make any further appropriate agreements and stipulations that may be therein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise.


 


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


 


Section 10.02.                Supplemental
Indenture With Consent of Noteholders.  With the consent (evidenced as provided in Article 9)
of the Holders of not less than a majority in 


 


51

















 


aggregate principal
amount of the Notes at the time outstanding, the Company, the Issuer and the
Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or any supplemental indenture or modifying in any manner the rights of the
Holders of the Notes; provided
that no such supplemental indenture shall, without the consent of the Holder of
each Note so affected:


 


(a)           change
the Stated Maturity of the principal of or any installment of interest on the
Notes, reduce the principal amount of, or the rate or amount of interest on, or
any premium payable on redemption of, the Notes, or adversely affect any right
of repayment of the Holder of the Notes, change the place of payment, or the
coin or currency, for payment of principal of or interest on any Note or impair
the right to institute suit for the enforcement of any payment on or with
respect to the Notes;


 


(b)           reduce
the percentage in principal amount of the outstanding Notes necessary to modify
or amend this Indenture as provided in this Section 10.02, to waive
compliance with certain provisions of this Indenture or certain defaults and
their consequences provided in this Indenture, or to reduce the quorum or
change voting requirements set forth in this Indenture;


 


(c)           modify
or affect in any manner adverse to the Holders of the Notes the terms and
conditions of the obligations of the Company in respect of the payments of
principal and interest;


 


(d)           modify
any of this Section 10.02 or any of the provisions relating to the waiver
of certain past defaults or certain covenants, except
to increase the required percentage to effect the action or to provide that
certain other provisions may not be modified or waived without the consent of
the Holders of the Notes;


 


(e)           change
the ranking of the Notes;


 


(f)            modify
the provisions of Section 4.01 in a manner adverse to the Holders of the
Notes, including the Issuer’s obligation to repurchase the Notes;


 


(g)           voluntarily
release, other than in accordance with the Indenture, the Guarantee of the
Guarantor; or


 


(h)           adversely
affect the rights of Holders of the Notes contained in Section 15.01.


 


Upon an Issuer Request authorizing the execution of
any supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Noteholders as aforesaid, the Trustee shall join with the Issuer
and the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.


 


52

















 


It shall not be necessary for the consent of the
Noteholders under this Section 10.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.


 


Section 10.03.                Effect
of Supplemental Indenture. 
Upon the execution of any supplemental indenture pursuant to the
provisions of this Article 10, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights,
limitation of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer and the Holders of Notes shall thereafter be
determined, exercised and enforced hereunder, subject in all respects to such
modifications and amendments and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.


 


Section 10.04.                Notation
on Notes.  Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to the
provisions of this Article 10 may bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture.  If the Issuer or the Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Issuer’s expense, be prepared and
executed by the Issuer, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 8.11) and
delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.


 


Section 10.05.                Evidence
of Compliance of Supplemental Indenture to Be Furnished to Trustee.  Prior to entering into any supplemental
indenture pursuant to this Article 10, the Trustee shall be provided with
an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that
any supplemental indenture executed pursuant hereto complies with the
requirements of this Article 10 and is otherwise authorized or permitted
by this Indenture.


 


ARTICLE 11

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE


 


Section 11.01.                Issuer
and Guarantor May Consolidate on Certain Terms.  Nothing contained in this Indenture or in the
Notes shall prevent any consolidation or merger of the Issuer or the Guarantor
with or into any other Person or Persons (whether or not affiliated with the
Issuer or the Guarantor), or successive consolidations or mergers in which
either the Issuer or the Guarantor will be the continuing entity or the Issuer
or the Guarantor or its successor or successors shall be a party or parties, or
shall prevent any sale, lease or conveyance, of all or substantially all of the
property of the Issuer or the Guarantor, to any other Person (whether or not
affiliated with the Issuer or the Guarantor) so long as the following
conditions are met:


 


(a)           the
Issuer or the Guarantor, as the case may be, shall be the continuing entity, or
the successor entity (if other than the Issuer or the Guarantor) formed by or
resulting from any consolidation or merger or which shall have received the
transfer of assets shall expressly assume (i) in the case of the Issuer,
payment of the principal of and interest on all of the Notes and the due and
punctual performance and observance of all of the covenants and 


 


53

















 


conditions in this Indenture or (ii) in the case of the Guarantor,
all of the obligations of the Guarantor under its Guarantee of the Notes;


 


(b)           if
as a result of such transaction the Notes become exchangeable into common stock
or other securities issued by a third party, such third party fully and
unconditionally guarantees all obligations under such Notes and this Indenture;


 


(c)           immediately
after giving effect to such transaction, no Event of Default and no event
which, after notice or lapse of time, or both, would become an Event of
Default, shall have occurred and be continuing; and


 


(d)           either
the Issuer or Guarantor or the successor Person, as the case may be, shall have
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, lease or conveyance and, if
a supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article 11.


 


No such consolidation, merger, sale, lease or
conveyance shall be permitted by this Section 11.01 unless prior thereto
the Company shall have delivered to the Trustee an Officers’ Certificate
stating that the Company’s obligations hereunder shall remain in full force and
effect thereafter, and that all conditions precedent herein provided for
relating to such transaction have been complied with.


 


Section 11.02.                Issuer
or Guarantor Successor to Be Substituted.  Upon any consolidation by the Issuer or the
Guarantor with or merger of the Issuer or the Guarantor into any other Person
or any sale, lease or conveyance of all or substantially all of the properties
and assets of the Issuer or the Guarantor to any Person in accordance with Section 11.01,
the successor Person formed by such consolidation or into which the Issuer or
the Guarantor is merged or to which such sale, lease or conveyance is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Issuer or the Guarantor, as the case may be, under this Indenture
with the same effect as if such successor Person had been named as the Issuer
or the Guarantor herein, as the case may be, and thereafter, except in the case of a lease, the
predecessor Person shall be released, in the case of the Issuer, from all
obligations and covenants under this Indenture and the Notes, and in the case
of the Guarantor, from all of the obligations of the Guarantor under its
Guarantee of the Notes.


 


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


 


ARTICLE 12

SATISFACTION AND DISCHARGE OF INDENTURE


 


Section 12.01.                Satisfaction
and Discharge of Indenture. 
This Indenture shall cease to be of further effect (except as to any
surviving rights of exchange or registration of transfer or exchange of the
Notes herein expressly provided for and except as provided below), and the
Trustee, upon Issuer Order and demand of and at the expense of the Issuer,
shall execute 


 


54

















 


instruments in form
and substance satisfactory to the Trustee and the Issuer acknowledging
satisfaction and discharge of this Indenture when:


 


(a)           either


 


(i)          all Notes theretofore authenticated and delivered (other
than (A) Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 12.04, and (B) Notes for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or discharged
from such trust, as provided in Section 12.04) have been delivered to the
Trustee for cancellation; or


 


(ii)         all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable, whether at Stated Maturity, or any
Repurchase Date, or upon exchange (following the determination of the cash and
Common Stock, if any, due upon exchange as determined pursuant to Article 15),


 


and the Issuer or, if applicable, the Guarantor has
irrevocably (except as provided in the second proviso to Section 12.05)
deposited or caused to be deposited with the Trustee, a Paying Agent or the
Exchange Agent (other than the Issuer or any of its Affiliates), as applicable,
as trust funds in trust cash and/or shares of Common Stock (as applicable under
the terms of this Indenture) in an amount sufficient to pay and discharge the
entire indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Notes which have become due and payable) or to the
Stated Maturity or Redemption Date or Designated Redemption Date, as the case
may be;


 


(b)           the
Issuer or the Guarantor has paid or caused to be paid all other sums payable
hereunder by the Issuer and the Guarantor; and


 


(c)           the
Issuer has delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.


 


Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee and any predecessor
Trustee under Section 8.06 and, if money shall have been deposited with
and held by the Trustee pursuant to subclause (ii) of clause (a) of this Section 12.01,
the provisions of Sections 2.05, 2.06, 2.07 and 4.02 and Article 15 and
this Article 12 shall survive until the Notes have been paid in full.


 


Notwithstanding the reference to premium under
subclause (ii) of clause (a) of this Section 12.01, the Issuer
shall not be required to deposit pursuant thereto any premium that would be
payable on the Notes only upon acceleration of the maturity thereof pursuant to
Section 7.01.


 


Section 12.02.                Application
of Trust Funds.  All money
deposited with the Trustee pursuant to Section 12.01 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the


 


55
















 


Persons entitled thereto, of the principal
(and premium, if any), and any interest for whose payment such money has been
deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.  All moneys deposited with the Trustee (and
held by it or any Paying Agent) for the payment of Notes subsequently exchanged
shall be returned to the Issuer upon request.


 


Section 12.03.                       Paying Agent to Repay Monies Held.  Subject to the provisions of Section 12.04
the Trustee or a Paying Agent shall hold in trust, for the benefit of the
Noteholders, all money deposited with it pursuant to Section 12.01 and
shall apply the deposited money in accordance with this Indenture and the Notes
to the payment of the principal of (including the Redemption Price or
Designated Event Repurchase Price upon redemption or repurchase pursuant to
Article 3 and Article 4) and interest on the Notes.


 


Section 12.04.                       Return of Unclaimed Monies.  The Trustee and each Paying Agent shall pay
to the Issuer upon request any money held by them for the payment of principal
or interest that remains unclaimed for two years after a right to such money
has matured; provided, however, that the Trustee or such Paying
Agent, before being required to make any such payment, may, at the expense of
the Issuer, either publish in a newspaper of general circulation in The City of
New York, or cause to be mailed to each Holder entitled to such money, notice
that such money remains unclaimed and that after a date specified therein,
which shall be at least thirty (30) calendar days from the date of such mailing
or publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.  After payment to
the Issuer, Holders entitled to money must look to the Issuer for payment as
general creditors unless an applicable abandoned property law designates
another person, and the Trustee and each Paying Agent shall be relieved of all
liability with respect to such money.


 


Section 12.05.                       Reinstatement.  If the Trustee or the Paying Agent is unable
to apply any money in accordance with this Article 12 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Issuer’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to this Article 12 until such time as the Trustee or
Paying Agent is permitted to apply all money held in trust with respect to the
Notes; provided, however, that if the Issuer makes any
payment of principal of or any premium or interest on any Notes following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of the Notes to receive such payment from the money so held by
the Trustee or Paying Agent in trust; provided, further, that, if the Issuer’s
obligations are revived and reinstated as herein provided, the Trustee or
Paying Agent shall discharge from trust and pay to the Issuer all funds
(together with the earnings thereon, if any) previously deposited therewith
pursuant to Section 12.02 and thereupon the Issuer, the Trustee, any
Paying Agent and the Holders of the Notes shall be restored severally and
respectively to their former positions hereunder as if no satisfaction and
discharge had been effected.


 


56

















 


ARTICLE 13

GUARANTEE


 


Section 13.01.                       Guarantee.


 


(a)                                  Subject to this Article 13, the Guarantor hereby fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee: (i) the due and punctual payment of the principal of (and
premium, if any) and interest on such Note when and as the same shall become
due and payable, whether at the Stated Maturity, by acceleration, redemption,
repurchase or otherwise, and the due and punctual performance of all other
obligations of the Issuer to the Holders or the Trustee, all in accordance with
the terms of such Note and of this Indenture and (ii) in the case of any
extension of time of payment or renewal of such Note or any of such other
obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at the Stated
Maturity or by acceleration, redemption, repurchase or otherwise, subject, however, in the case of clauses
(i) and (ii) above, to the limitations set forth in the next
succeeding paragraph.


 


(b)                                 The Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the Guarantee by the
Guarantor not constitute a fraudulent transfer or conveyance for purposes of
the United States Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar Federal or state law.  To effectuate the foregoing intention, the
Holders and the Guarantor hereby irrevocably agree that the obligations of the
Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of the
Guarantor, result in the obligations of the Guarantor under its Guarantee not
constituting such fraudulent transfer or conveyance.


 


(c)                                  The Guarantor hereby agrees that its obligations hereunder shall be
absolute, unconditional, irrespective of, and shall be unaffected by, the
validity, regularity or enforceability of such Note or this Indenture, the
absence of any action to enforce the same or any release, amendment, waiver or
indulgence granted to the Issuer, the Company or any guarantor or any consent
to departure from any requirement of any other guarantee of all or any of the
Notes or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor; provided,
however, that, notwithstanding the
foregoing, no such release, amendment, waiver or indulgence shall, without the
consent of the Guarantor, increase the principal amount of such Note, or
increase the interest rate thereon, or alter the Stated Maturity thereof. The
Guarantor hereby waives the benefits of diligence, presentment, demand for
payment, any requirement that the Trustee or any of the Holders exhaust any
right or take any action against the Issuer or any other Person, filing of
claims with a court in the event of insolvency or bankruptcy of the Issuer, any
right to require a proceeding first against the Issuer, protest or notice with
respect to such Note or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that the Guarantee will not be discharged in respect
of such Note except by complete performance of the obligations contained in
such Note and in such Guarantee. The Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or
any of the Holders are prevented by applicable law from exercising their
respective rights to accelerate the maturity of the Notes, to collect interest
on the Notes, or to enforce or exercise any other right or remedy with respect
to the Notes, the Guarantor agrees to pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.


 


57

















 


(d)                                 The Guarantor shall be subrogated to all rights of the Holders of the
Notes upon which its Guarantee is endorsed against the Issuer in respect of any
amounts paid by the Guarantor on account of such Note pursuant to the
provisions of its Guarantee or this Indenture; provided,
however, that the Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon,
such right of subrogation until the principal of (and premium, if any) and
interest on all Notes issued hereunder shall have been paid in full.


 


(e)                                  The Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Issuer for liquidation
or reorganization, should the Issuer become insolvent or make an assignment for
the benefit of creditors or should a receiver or trustee be appointed for all
or any part of the Issuer’s assets, and shall, to the fullest extent permitted
by law, continue to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Notes, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by
any Holder of the Notes, whether as a “voidable preference,” “fraudulent
transfer,” or otherwise, all as though such payment or performance had not been
made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted
by law, be reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.


 


Section 13.02.                       Execution and Delivery of Guarantees.


 


The Guarantee to be endorsed on the Notes shall
include the terms of the Guarantee set forth in Section 13.01 and any
other terms that may be set forth in the form established pursuant to
Section 2.02. The Guarantor hereby agrees to execute its Guarantee, in a
form established pursuant to Section 2.02, to be endorsed on each Note authenticated
and delivered by the Trustee.


 


The Guarantee shall be signed in the name and on
behalf of the Guarantor by the manual or facsimile signature of an Officer of
the Guarantor.


 


In case any Officer who shall have signed a Guarantee
shall cease to be such Officer before the Note on which the Guarantee is
endorsed shall have been authenticated and delivered by the Trustee, such
Guarantee nevertheless shall bind the Guarantor, and a Guarantee may be signed
on behalf of the Guarantor by such persons as, at the actual date of the
execution of such Guarantee, shall be the proper Officers, although at the date
of the execution of this Indenture any such person was not such an Officer.


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor and shall bind the
Guarantor notwithstanding the fact that the Guarantee may not bear the
signature of the Guarantor. The Guarantor hereby agrees that its Guarantee set
forth in Section 13.01 and in the form of Guarantee established pursuant
to Section 2.02 shall remain in full force and effect notwithstanding any
failure to endorse a Guarantee on any Note.


 


58

















 


Section 13.03.                       Release of the Guarantor.


 


The Guarantee will remain in effect with respect to
the Guarantor until the entire principal of, premium, if any, and interest on
the Notes to which the Guarantee relates shall have been paid in full or otherwise
discharged in accordance with the provisions of such Notes and this Indenture
and all amounts owing to the Trustee hereunder have been paid or as provided in
Section 11.02; provided, however, that if the Notes are satisfied and discharged
pursuant to Section 12.01, then upon delivery by the Issuer of an
Officers’ Certificate and an Opinion of Counsel stating that all conditions
precedent herein provided for relating to the release of the Guarantor from its
obligations under its Guarantee and this Article 13 have been complied
with, the Guarantor shall be released and discharged of its obligations under
its Guarantee and under this Article 13 without any action on the part of
the Trustee or any Holder, and the Trustee shall execute any documents reasonably
required in order to acknowledge the release of the Guarantor from its
obligations under its Guarantee endorsed on the Notes of a series and under
this Article 13.


 


ARTICLE 14

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS


 


Section 14.01.                       Indenture and Notes Solely Corporate Obligations.  No recourse for the payment of
the principal of (including the Redemption Price or Designated Event Repurchase
Price upon redemption or repurchase pursuant to Article 3 and
Article 4) or, premium, if any, or interest on any Note, or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon
any obligation, covenant or agreement of the Issuer, the Company or the
Guarantor in this Indenture or in any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, partner, member, manager, employee,
agent, officer, director or subsidiary, as such, past, present or future, of
the Company, the Issuer or any of the Company’s subsidiaries or of any
successor thereto, either directly or through the Company, the Issuer or any of
the Company’s subsidiaries or of any successor thereto, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.


 


ARTICLE 15

EXCHANGE OF NOTES


 


Section 15.01.                       Right to Exchange.  (a) Upon compliance with the provisions
of this Indenture, on or prior to the close of business on the second Business
Day immediately preceding the Maturity Date, the Holder of any Notes not
previously redeemed or repurchased shall have the right, at such Holder’s
option, to exchange its Notes, or any portion thereof which is a multiple of
$1,000, into cash and, if applicable, Common Stock, as provided in
Section 15.10, by surrender of such Notes so to be exchanged in whole or
in part, together with any required funds, under the circumstances and in the
manner described in this Article 15. 
Holders may exchange their Notes at any time on or after the 22nd
Scheduled Trading Day prior to the Maturity Date until the close of business on
the second Business Day immediately preceding the Maturity Date.  In addition, Holders may exchange their Notes
at any time prior to such 22nd Scheduled Trading Day prior to the Maturity Date
only upon occurrence of one of the following events:


 


59

















 


(i)                               Exchange
Upon Satisfaction of Market Price Condition. 
A Holder may surrender any of its Notes for exchange during any calendar
quarter beginning after December 31, 2010 (and only during such calendar
quarter) if the Closing Sale Price of the Common Stock for at least 20 Trading
Days in the period of 30 consecutive Trading Days ending on the last Trading
Day of the preceding calendar quarter is more than 130% of the Exchange Price
per share of Common Stock in effect on the applicable Trading Day.  The Board of Directors will make appropriate
adjustments, in its good faith determination, to account for any adjustment to
the Exchange Rate that becomes effective, or any event requiring an adjustment
to the Exchange Rate where the ex-dividend date of the event occurs, during
that 30 consecutive Trading Day period.


 


If the Notes shall be exchangeable as a result of the
occurrence of an event specified in this clause (i), the Issuer shall promptly
deliver to the Trustee and the Exchange Agent (if the Trustee is not the
Exchange Agent) written notice thereof.


 


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


 


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


 


The Trustee shall have no
obligation to determine the Trading Price of the Notes unless the Issuer shall
have requested such determination, and the Issuer shall have no obligation to
make such request unless a Holder provides the Issuer with reasonable evidence
that the Trading Price per $1,000 principal amount of Notes would be less than
98% of the product of the Closing Sale Price of the Common Stock and the
Applicable Exchange Rate, whereupon the Issuer shall instruct the Trustee to
determine the Trading Price of the Notes beginning on the next Trading Day and
on each successive Trading Day until the Trading Price is greater than or equal
to 98% of the product of the Closing Sale Price of the Common Stock and the
Applicable Exchange Rate.  If the Issuer
does not so instruct the Trustee after a Holder of Notes provides the Issuer
with reasonable 


 


60

















 


evidence that the Trading Price per $1,000 principal
amount of Notes would be less than 98% of the product of the Closing Sale Price
of the Common Stock and the Applicable Exchange Rate, the Trading Price of the
Notes will be deemed to be less than 98% of the Closing Sale Price of the
Common Stock multiplied by the Applicable
Exchange Rate on each Trading Day the Issuer fails to do so.


 


(iii)                         Exchange
Upon Notice of Redemption.  A Holder may
surrender for exchange any of the Notes called for redemption at any time prior
to the close of business on the second Business Day prior to Redemption Date,
even if the Notes are not otherwise exchangeable at such time.  The right to exchange Notes pursuant to this
clause (iii) shall expire after the close of business on the second
Business Day immediately preceding the Redemption Date, unless the Issuer
defaults in payment of the Redemption Price. 
A Holder may exchange fewer than all of its Notes so long as the Notes
exchanged are an integral multiple of $1,000 principal amount and the remaining
principal amount of Notes is in an authorized denomination.


 


(iv)                        Exchange
Upon Specified Transactions.  If the
Company elects to: (1) distribute to all holders of the Common Stock any
rights, warrants or options entitling them for a period of not more than 45
days after the date of issuance thereof to subscribe for or purchase Common
Stock at an exercise price per share of Common Stock less than the Closing Sale
Price of the Common Stock on the Business Day immediately preceding the time of
announcement of such issuance; or (2) distribute to all holders of Common
Stock assets, debt securities or certain rights to purchase securities of the
Issuer or the Company, which distribution (excluding for this purpose a
distribution solely in the form of cash required to preserve the status of the
Company as a real estate investment trust) has a per share value exceeding 15%
of the average of the Closing Sale Prices of the Common Stock for the 5
consecutive Trading Days ending on the date immediately preceding the
declaration date of such distribution, the Issuer must notify the Holders of
Notes at least 25 Scheduled Trading Days prior to the ex-dividend date for such
distribution described in clause (1) or clause (2).


 


Following the issuance of
such notice, Holders may surrender their Notes for exchange at any time until
the earlier of the close of business on the Business Day prior to the
ex-dividend date or an announcement that such distribution will not take place;
provided, however,
that no adjustment to the ability of the Holders of Notes to exchange their
Notes will be made if the Holders of Notes, as a result of holding the Notes,
are entitled to participate at the same time as Common Stock holders
participate in such transaction or distribution as if such Holders of the Notes
held a number shares of Common Stock equal to the Applicable Exchange Rate, multiplied by the principal amount (expressed in thousands)
of Notes held by such Holder, without having to exchange their Notes.  The “ex-dividend date”
means, with respect to any distribution on shares of Common Stock, the first
date upon which a sale of the Common Stock does not automatically transfer the
right to receive the relevant distribution from the seller of the Common Stock
to its buyer.


 


In addition, (1) if the
Company otherwise is a party to a share exchange or tender offer, liquidation,
consolidation, recapitalization, reclassification, combination or 


 


61

















 


merger, or a sale or lease or other transfer of all or
substantially all of its respective properties and assets, or a series of
related transactions or events, in each case pursuant to which all of the
outstanding Common Stock would be exchanged for, converted into or constitute
solely the right to receive cash, securities or other property, or (2) if
a Designated Event occurs, a Holder may surrender its Notes for exchange at any
time from and including the date that is 25 Scheduled Trading Days prior to the
anticipated effective time of the transaction or event up to and including 35
Business Days after the actual date of such transaction or event, unless such
transaction or event also constitutes a Designated Event, in which case the
Notes may be surrendered for exchange until the related Designated Event
Repurchase Date.  The Issuer will notify
Holders of Notes and the Trustee as promptly as reasonably practicable
following the date such transaction or event is publicly announced (but in no
event less than 25 Scheduled Trading Days prior to the effective time of such
transaction or event; provided that
the Issuer shall not be required to provide such notice before such time that
the Company is otherwise required by law or the rules of the exchange on
which the Common Stock is listed to provide such notice).


 


(v)                           Exchange
Upon Delisting of the Common Stock.  A
Holder may surrender for exchange any of its Notes at any time beginning on the
first Business Day after the Common Stock has ceased to be listed on a
U.S.  national or regional securities
exchange for 30 consecutive Trading Days.


 


(b)                                 Whenever the Notes shall
become exchangeable pursuant to this Section 15.01, the Issuer or, at the
Issuer’s Request, the Trustee in the name and at the expense of the Issuer,
shall notify the Holders of the event triggering such exchangeability in the
manner provided in Section 17.04, and the Issuer shall also publicly
announce such information and publish it on the Issuer’s website.  Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice.  The text of such notice shall be
prepared by the Issuer, and in giving such notice the Trustee may rely and
shall be fully protected in relying upon such Issuer Request and shall have no
responsibility for text prepared by the Issuer.


 


(c)                                  A Note in respect of which a
Holder has delivered a Designated Event Repurchase Notice exercising such
Holder’s right to require the Issuer to repurchase such Note pursuant to
Section 4.01 may be exchanged only if such Designated Event Repurchase
Notice is properly withdrawn in accordance with, and within the time periods
set forth in, Section 4.03.


 


(d)                                 A Holder of Notes is not
entitled to any rights of a Holder of Common Stock until such time as such
Holder is entitled to receive shares of Common Stock pursuant to this
Article 15.


 


Section 15.02.                       Exercise of Exchange Right; No Adjustment for Interest or Dividends.  In order to exercise the
exchange right with respect to any Note in certificated form, the Issuer must
receive at the office or agency of the Issuer maintained for that purpose in
the Borough of Manhattan or, at the option of such Holder, the Corporate Trust
Office, such Note with the original or facsimile of the form entitled “Exchange Notice” on the reverse thereof,
duly completed and signed manually or by facsimile, together with such Notes
duly endorsed for 


 


62

















 


transfer, accompanied by the funds, if any,
required by this Section 15.02. 
Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
that shall be issuable on such exchange shall be issued, and shall be
accompanied by transfer or similar taxes, if required pursuant to
Section 15.06.


 


To exchange Notes held in book-entry form, a Holder
must exchange by book-entry transfer to the Exchange Agent through the
facilities of DTC and, if required, pay all taxes and duties, if any, and, if
required, pay all funds equal to interest payable on the next interest payment
date to which the holder is not entitled. 
The Exchange Notice for Notes held in book-entry form must comply with
all applicable DTC procedures.


 


To exchange the Notes that are in certificated form, a
Holder must (a) complete and manually sign the Exchange Notice on the
reverse of the Note (or complete and manually sign a facsimile of such notice)
and deliver such notice to the Exchange Agent at the office maintained by the
Exchange Agent for such purpose, (b) surrender the Notes to the Exchange
Agent, (c) furnish appropriate endorsements and transfer documents if
required by the Exchange Agent, (d) pay any transfer or similar tax, if
required and (e) pay funds equal to the interest payable on the next
interest payment date to which the Holder is not entitled, if required.


 


The date on which the Holder satisfies all such
requirements shall be deemed to be the date on which the applicable Notes shall
have been tendered for exchange.


 


Whether the Notes to be exchanged are held in
book-entry or certificated form, the Exchange Notice will require the Holder to
certify that it is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act.


 


If the Issuer is required to deliver shares of Common
Stock (upon settlement in accordance with Sections 15.10 and 15.11, if
applicable, on the third Business Day immediately following the last day of the
Applicable Observation Period), after satisfaction of the requirements for
exchange set forth above, subject to compliance with any restrictions on
transfer if shares issuable on exchange are to be issued in a name other than
that of the Noteholder (as if such transfer were a transfer of the Note or
Notes (or portion thereof) so exchanged), and in accordance with the time
periods set forth in this Article 15, the Issuer shall deliver to such
Noteholder at the office or agency maintained by the Issuer for such purpose
pursuant to Section 5.02, (i) a certificate or certificates for the
number of full shares of Common Stock (if any) deliverable upon the exchange of
such Note or portion thereof as determined by the Issuer in accordance with the
provisions of Sections 15.10 and 15.11 and (ii) a check or cash in respect
of any fractional interest in respect of a share of Common Stock arising upon
such exchange, calculated by the Issuer as provided in Section 15.03.  The cash, and, if applicable, a certificate
or certificates for the number of full shares of Common Stock into which the
Notes are exchanged (and cash in lieu of fractional shares) will be delivered
to an exchanging Holder after satisfaction of the requirements for exchange set
forth above, in accordance with this Section 15.02 and Sections 15.10 and,
if applicable, 15.11.


 


Each exchange shall be deemed to have been effected as
to any such Note (or portion thereof) on the date on which the requirements set
forth above in this Section 15.02 have been satisfied as to such Note (or
portion thereof) (the “Exchange Date”),
and the Person in whose 


 


63

















 


name any certificate or certificates for shares of
Common Stock shall be issuable upon such exchange shall be deemed to have
become the holder of record of the shares represented thereby for all purposes
at the close of business on the last Trading Day of the Applicable Observation
Period.


 


Any Note or portion thereof surrendered for exchange
during the period from the close of business on the Record Date for any
interest payment date to the close of business on the applicable interest
payment date shall be accompanied by payment, in immediately available funds or
other funds acceptable to the Issuer, of an amount equal to the interest
otherwise payable on such interest payment date on the principal amount being
exchanged; provided that no such payment need be
made (1) if a Holder exchanges its Notes in connection with a redemption
and the Issuer has specified a Redemption Date that is after a Record Date and
on or prior to the Business Day immediately succeeding the corresponding
interest payment date, (2) if a Holder exchanges its Notes in connection
with a Designated Event and the Issuer has specified a Designated Event
Repurchase Date that is after a Record Date and on or prior to the Business Day
immediately succeeding the corresponding interest payment date, (3) with
respect to any exchange on or following the Record Date immediately preceding
the Maturity Date, or (4) to the extent of any Defaulted Interest, if any
Defaulted Interest exists at the time of exchange with respect to such
Note.  Except as otherwise provided above
in this Article 15, no payment or other adjustment shall be made for
interest accrued on any Note exchanged or for dividends on any shares issued
upon the exchange of such Note as provided in this Article 15.  Notwithstanding the foregoing, in the case of
Notes submitted for exchange in connection with a Designated Event, such Notes
shall continue to represent the right to receive the Additional Designated
Event Shares, if any, payable pursuant to Section 15.11, until such
Additional Designated Event Shares are so paid.


 


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


 


Upon the exchange of a Note, the accrued but unpaid
interest attributable to the period from the issue date of the Note to the
Exchange Date, with respect to the exchanged Note, shall not be deemed
canceled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through delivery of cash and, if applicable, shares
of Common Stock (together with the cash payment, if any in lieu of fractional
shares) in exchange for the Note being exchanged pursuant to the provisions
hereof.


 


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


 


Section 15.03.                       Cash Payments in Lieu of Fractional Shares.  No fractional shares of Common
Stock or scrip certificates representing fractional shares shall be issued upon
exchange 


 


64

















 


of Notes. 
If more than one Note shall be surrendered for exchange at one time by
the same Holder, the number of full shares that shall be issuable upon exchange
shall be computed on the basis of the aggregate principal amount of the Notes
(or specified portions thereof to the extent permitted hereby) so surrendered
and the aggregate sum of all Daily Settlement Amounts for each of the 20
Trading Days during the Applicable Observation Period (and not in respect of
each Daily Settlement Amount nor some portion of the Daily Settlement Amounts
for one or some portion of the 20 Trading Days during the Applicable
Observation Period).  If any fractional
share of Common Stock would be issuable upon the exchange of any Note or Notes,
the Issuer shall make a payment therefor in cash to the Holder of Notes at a
price equal to the Daily VWAP of the Common Stock on the last day of the
Applicable Observation Period.


 


Section 15.04.                       Exchange Rate.  The initial Exchange Rate for the Notes is
11.6532 shares of Common Stock per each $1,000 principal amount of the Notes,
subject to adjustment as provided in Sections 15.05 and 15.11 (herein called
the “Exchange Rate”).


 


Section 15.05.                       Adjustment of Exchange Rate.  The Exchange Rate shall be adjusted from time
to time as follows:


 


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


 


ER1 = ER0 × OS1 / OS0


 


where


 


ER0 = the Exchange Rate in effect immediately
prior to the open of business on the ex-dividend date for such dividend or
distribution, or the effective date of such share split or share combination;


 


ER1 = the new Exchange Rate in effect immediately
after the open of business on the ex-dividend date for such dividend or
distribution, or the effective date of such share split or share combination;


 


OS0 = the number of shares of Common Stock
outstanding immediately prior to giving effect to such dividend or
distribution, or the effective date of such share split or share combination;
and


 


OS1 = the number of shares of Common Stock
outstanding immediately after giving effect to such dividend or distribution,
or the effective date of such share split or share combination.


 


Any adjustment made pursuant to this paragraph
(a) shall become effective as of the open of business on (x) the
ex-dividend date for such dividend or other distribution or (y) the date
on which such split or combination becomes effective, as applicable.  If any dividend or distribution described in
this paragraph (a) is declared but not so paid or made, the new Exchange
Rate shall be readjusted to the Exchange Rate that would then be in effect if
such dividend or distribution had not been declared.


 


65
















 


(b)                                 If the
Company distributes to all holders of Common Stock any rights, warrants or
options entitling them for a period of not more than forty-five (45) days after
the date of issuance thereof to subscribe for or purchase Common Stock, in any
case at an exercise price per share of Common Stock less than the Closing Sale
Price of the Common Stock on the Business Day immediately preceding the time of
announcement of such issuance, the Exchange Rate will be increased based on the
following formula:


 


ER1 = ER0 × (OS0 + X) / (OS0 + Y)


 


where


 


ER0 = the Exchange Rate in effect
immediately prior to the open of business on the ex-dividend date for such
distribution;


 


ER1 = the new Exchange Rate in effect
immediately on and after the open of business on the ex-dividend date for such
distribution;


 


OS0 = the number of shares of Common
Stock outstanding immediately prior to the open of business on ex-dividend date
for such distribution;


 


X = the aggregate number of
shares of Common Stock issuable pursuant to such rights, warrants or options;
and


 


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


 


For purposes of this paragraph (b), in determining
whether any rights, warrants or options entitle the holders to subscribe for or
purchase Common Stock at less than the applicable Closing Sale Price of the
Common Stock, and in determining the aggregate exercise or exchange price
payable for such Common Stock, there shall be taken into account any consideration
received by the Company for such rights, warrants or options and any amount
payable on exercise or exchange thereof, with the value of such consideration,
if other than cash, to be determined by the Board of Directors.  If any right, warrant or option described in
this paragraph (b) is not exercised or exchanged prior to the expiration
of the exercisability or exchangeability thereof, the new Exchange Rate shall
be readjusted to the Exchange Rate that would then be in effect if such right,
warrant or option had not been so issued.


 


(c)                                  If the
Company distributes shares of capital stock, evidences of indebtedness or other
assets or property of the Company to all holders of Common Stock, excluding:


 


(A)                              dividends, distributions, rights, warrants or options referred to in
paragraph (a) or (b) above;


 


(B)                                dividends or distributions paid exclusively in cash; and


 


66

















 


(C)                                Spin-Offs described below in this paragraph (c),


 


then the Exchange Rate will be increased based on the
following formula:


 


ER1 = ER0 × SP0 / (SP0 – FMV)


 


where


 


ER0 = the Exchange Rate in effect
immediately prior to the open of business on the ex-dividend date for such
distribution;


 


ER1 = the new Exchange Rate in effect
immediately on and after the open of business on the ex-dividend date for such
distribution;


 


SP0 = the Closing Sale Price of the
Common Stock on the Trading Day immediately preceding the ex-dividend date for
such distribution; and


 


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


 


provided that if “FMV” with respect to any
distribution of shares of capital stock, evidences of indebtedness or other
assets or property of the Company is equal to or greater than “SP0” with respect to such distribution, then in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of Notes shall
have the right to receive on the date such shares of capital stock, evidences
of indebtedness or other assets or property of the Company are distributed to
holders of Common Stock, for each Note, the amount of shares of capital stock,
evidences of indebtedness or other assets or property of the Company such
holder of Notes would have received had such holder of Notes owned a number of
shares of Common Stock equal to a fraction the numerator of which is the
product of the Exchange Rate in effect immediately prior to the ex-dividend
date for such distribution, and the aggregate principal amount of Notes held by
such Holder and the denominator of which is one thousand ($1,000).  An adjustment to the Exchange Rate made
pursuant to the immediately preceding paragraph shall become effective on the
ex-dividend date for such distribution.


 


If the Company distributes
to all holders of Common Stock capital stock of any class or series, or similar
equity interest, of or relating to a Subsidiary or other business unit of the
Company (a “Spin-Off”), the Exchange Rate in
effect immediately following the 10th Trading Day immediately following, and including the effective date of the Spin-Off will be
increased based on the following formula:


 


ER1 = ER0 × (FMV0 + MP0) / MP0


 


where


 


67

















 


ER0 = the Exchange Rate in effect
immediately prior to the close of business on the 10th Trading Day immediately
following, and including, the effective date of the
Spin-Off;


 


ER1 = the new Exchange Rate
immediately after the close of business on the 10th Trading Day immediately
following, and including, the effective date of the
Spin-Off;


 


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


 


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


 


An adjustment to the Exchange Rate made pursuant to
the immediately preceding paragraph will occur at the close of business on the
10th Trading Day from and including the effective date of the Spin-Off; provided that in respect of any exchange within the 10
Trading Days following the effective date of any Spin-Off, references within
this paragraph (c) to 10 Trading Days shall be deemed replaced with such
lesser number of Trading Days as have elapsed between the effective date of
such Spin-Off and the Exchange Date in determining the Applicable Exchange
Rate.  If any such dividend or distribution
described in this paragraph (c) is declared but not paid or made, the new
Exchange Rate shall be readjusted to be the Exchange Rate that would then be in
effect if such dividend or distribution had not been declared.


 


(d)                                 If the
Company distributes cash to all or substantially all holders of outstanding
Common Stock (excluding any dividend or distribution in connection with the
liquidation, dissolution or winding up or any regular quarterly cash dividend
on the Common Stock to the extent that the aggregate amount of such regular
quarterly cash dividend per share of Common Stock does not exceed $0.10 for the
relevant quarterly period ($0.10 being the “Reference
Dividend Amount”)), the Exchange Rate will be increased based on the
following formula:


 


ER1 = ER0 × (SP0 – RDA) / (SP0 – C)


 


where


 


ER0 = the Exchange Rate in effect
immediately prior to the open of business on the ex-dividend date for such
distribution;


 


ER1 = the new Exchange Rate
immediately on and after the open of business on the ex-dividend date for such
distribution;


 


SP0 = the average of the Closing Sale
Prices of the Common Stock for the ten (10) consecutive Trading Days prior
to the Business Day immediately preceding the earlier of the record date or the
day prior to the ex-dividend date for such distribution;


 


68

















 


RDA = the Reference Dividend
Amount; and


 


C = the amount in cash per
share that the Company distributes to holders of Common Stock.


 


provided that if “C” with respect to any such cash
dividend or distribution is equal to or greater than “SP0” with respect to any such cash dividend or distribution, then in lieu
of the foregoing adjustment, adequate provision shall be made so that each
holder of Notes shall have the right to receive on the date such cash is
distributed to holders of Common Stock, for each Note, the amount of cash such
holder of Notes would have received had such holder of Notes owned a number of
shares of Common Stock equal to a fraction the numerator of which is the
product of the Exchange Rate in effect immediately prior to the ex-dividend
date for such dividend or distribution, and the
aggregate principal amount of Notes held by such Holder and the denominator of
which is one thousand ($1,000).


 


An adjustment to the
Exchange Rate made pursuant to this paragraph (d) shall become effective
as of the open of business on the ex-dividend date for such dividend or
distribution.  If any dividend or
distribution described in this paragraph (d) is declared but not so paid
or made, the new Exchange Rate shall be readjusted to the Exchange Rate that
would then be in effect if such dividend or distribution had not been declared.


 


The Reference Dividend
amount is subject to adjustment in a manner inversely proportional to
adjustments to the Exchange Rate; provided that
no adjustment will be made to the Reference Dividend Amount for any adjustment
made to the Exchange Rate under this paragraph (d).


 


Notwithstanding the
foregoing, if an adjustment is required to be made under this paragraph as a
result of a distribution that is not a quarterly dividend, the Reference
Dividend Amount will be deemed to be zero.


 


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


 


ER1 = ER0 × (AC + (SPI ×
OS1)) / (SP1 × OS0)


 


where


 


ER0 = the Exchange Rate in effect
prior to the open of business on the second Trading Day immediately following
the Expiration Date;


 


ER1 = the new Exchange Rate in effect
on and after the open of business on the second Trading Day immediately
following the Expiration Date;


 


69

















 


AC = the aggregate value of
all cash and any other consideration (as determined by the Board of Directors)
paid or payable for the Common Stock purchased in such tender or exchange
offer;


 


OS0 = the number of shares of Common
Stock outstanding immediately prior to the open of business on the Expiration
Date;


 


OS1 = the number of shares of Common
Stock outstanding immediately after the open of business on the Expiration Date
(after giving effect to the purchase or exchange of shares pursuant to such
tender offer or exchange offer); and


 


SP1 = the Closing Sale Price of the
Common Stock for the Trading Day next succeeding the Expiration Date.


 


If the application of the foregoing formula would
result in a decrease in the Exchange Rate, no adjustment to the Exchange Rate
will be made.  Any adjustment to the
Exchange Rate made pursuant to this paragraph (e) shall become effective
as of the open of business on the second day immediately following the
Expiration Date.  If the Company or one
of its Subsidiaries is obligated to purchase Common Stock pursuant to any such
tender offer or exchange offer but is permanently prevented by applicable law
from effecting any such purchase or all such purchases are rescinded, the new
Exchange Rate shall be readjusted to be the Exchange Rate that would be in
effect if such tender offer or exchange offer had not been made.


 


(f)                                    If the
Company has in effect a rights plan while any Notes remain outstanding, Holders
of Notes will receive, upon exchange of Notes, in addition to Common Stock, if
any, rights under the Company’s stockholder rights agreement unless, prior to
exchange, the rights have expired, terminated or been redeemed or unless the
rights have separated from the Common Stock. 
If the rights provided for in the rights plan adopted by the Company
have separated from the Common Stock in accordance with the provisions of the
applicable stockholder rights agreement so that Holders of Notes would not be
entitled to receive any rights in respect of any shares of Common Stock
delivered upon an exchange of Notes, the Exchange Rate will be adjusted at the
time of separation as if the Company had distributed, to all holders of Common
Stock, capital stock, evidences of indebtedness or other assets or property
pursuant to paragraph (c) above, subject to readjustment upon the
subsequent expiration, termination or redemption of the rights.


 


Notwithstanding the
foregoing, in the event of an adjustment to the Exchange Rate pursuant to
paragraphs (d) and (e) above, in no event will the Exchange Rate
exceed 15.1492 shares of Common Stock per $1,000 principal amount of Notes,
subject to adjustment pursuant to paragraphs (a), (b) and (c) above.


 


In addition to the
adjustments pursuant to paragraphs (a) through (e) above, the Issuer
may increase the Exchange Rate in order to avoid or diminish any income tax to
holders of Common Stock resulting from any dividend or distribution of capital
stock (or rights to acquire Common Stock) or from any event treated as such for
income tax purposes.  The Issuer may
also, from time to time, to the extent permitted by applicable law, increase
the Exchange Rate by any amount for any period if the Issuer has determined
that such increase would be in the best 


 


70

















 


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


 


The Issuer shall not make
any adjustment to the Exchange Rate if Holders of the Notes participate in the
dividend, distribution or transaction that would otherwise result in an
adjustment to the Exchange Rate at the same time as holders of the Common Stock
and as if such Holders of Notes owned a number of shares of Common Stock equal
to a fraction the numerator of which is the product of the Exchange Rate in
effect on the ex-dividend date or effective date for the relevant dividend,
distribution or transaction, and the
aggregate principal amount of Notes held by such Holder and the denominator of
which is one thousand ($1,000).


 


The exchange rate will not
be adjusted except as specifically set forth in this Section 15.05 and in
Section 15.11.  Notwithstanding
anything to the contrary contained herein, and in addition to the other events
set forth herein on account of which no adjustment to the Exchange Rate shall
be made, the Applicable Exchange Rate shall not be adjusted for:


 


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


 


(ii)                            the
issuance of any Common Stock or options or rights to purchase those shares
pursuant to any present or future employee, director, trustee or consultant
benefit plan, employee agreement or arrangement or program of the Issuer or the
Company;


 


(iii)                         the
issuance of any Common Stock pursuant to any option, warrant, right, or
exercisable, exchangeable or convertible security outstanding as of the date the
Notes were first issued;


 


(iv)                        a change
in the par value of the Common Stock;


 


(v)                           accumulated
and unpaid dividends or distributions; and


 


(vi)                        the
issuance of Units by the Issuer and the issuance of the Common Stock or the
payment of cash upon redemption thereof.


 


No adjustment in the
Exchange Rate will be required unless the adjustment would require an increase
or decrease of at least 1% of the Exchange Rate.  If the adjustment is not made because the
adjustment does not change the Exchange Rate by at least 1%, then the
adjustment that is not made will be carried forward and taken into account in
any future adjustment.  All required
calculations will be made to the nearest cent or 1/1,000th of a share, as the
case may be.  Notwithstanding the
foregoing, on each annual anniversary of the first original issuance date of
the Notes, upon redemption of the Notes, and on
April 15, 2017, all adjustments not previously made will be made on such
date.


 


71

















 


Whenever the Exchange Rate
is adjusted as herein provided, the Company or the Issuer shall as promptly as
reasonably practicable file with the Trustee and any Exchange Agent other than
the Trustee an Officers’ Certificate setting forth the Exchange Rate after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment.  Promptly after delivery of
such certificate, the Company or the Issuer shall prepare a notice of such
adjustment of the Exchange Rate setting forth the adjusted Exchange Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Exchange Rate to the Holders of the Notes within 20
Business Days of the Effective Date of such adjustment.  Failure to deliver such notice shall not
affect the legality or validity of any such adjustment.


 


For purposes of this
Section 15.05, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu
of fractions of shares of Common Stock.


 


In addition the adjustments
to the Applicable Exchange Rate as set forth in this Article 15, the
Exchange Rate in respect of any Notes tendered for exchange shall be increased,
effective on the related Exchange Date, by 3% if such Notes are tendered for
exchange during an Additional Interest Accrual Period as defined in the
Registration Rights Agreement.


 


If any of the following
events occur, namely (i) any reclassification or change of the outstanding
Common Stock (other than a subdivision or combination to which
Section 15.05(a) applies, or a change in par value, or from par value
to no par value, or from no par value to par value), (ii) any consolidation,
merger or combination of the Company with another Person, or a binding share
exchange in respect of all of the outstanding Common Stock as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for
such the Common Stock or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets (including cash)
with respect to or in exchange for such the Common Stock, then the Issuer and
the Company or the successor or purchasing Person, as the case may be, shall
execute with the Trustee (which shall be instructed by an Issuer Order together
with the Officers’ Certificate and Opinion of Counsel pursuant to
Section 10.05) a supplemental indenture. 
Such supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Section 15.05.  The Issuer
shall cause notice of the execution of such supplemental indenture to be mailed
to each Holder of Notes within 20 Business Days after execution thereof.  Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.  The provisions of this paragraph shall
similarly apply to successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances.  If
the provisions of this paragraph apply to any event or occurrence, then the
provisions of Section 15.05(a) through (e) shall not apply.


 


Section 15.06.                       Taxes on Shares Issued.  The issue of stock certificates, if any, on
exchange of Notes shall be made without charge to the exchanging Noteholder for
any documentary, stamp or similar issue or transfer tax in respect of the issue
thereof.  The Issuer shall not, however,
be required to pay any such tax which may be payable in respect of any transfer
involved in the issue and delivery of stock in any name other than that of the
holder of 


 


72

















 


any Note exchanged,
and the Issuer shall not be required to issue or deliver any such stock
certificate unless and until the Person or Persons requesting the issue thereof
shall have paid to the Issuer the amount of such tax or shall have established
to the satisfaction of the Issuer that such tax has been paid.


 


Section 15.07.                       Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock.  The Company shall provide,
free from preemptive rights, out of its authorized but unissued shares or
shares held in treasury, sufficient shares of Common Stock to provide for the exchange
of the Notes as required by this Indenture from time to time as such Notes are
presented for exchange.


 


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


 


The Company covenants that,
if any shares of Common Stock to be provided for the purpose of exchange of
Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly
issued upon exchange, the Company shall, as expeditiously as possible, secure
such registration or approval, as the case may be.


 


The Company further
covenants that, if at any time the Common Stock shall be listed on The New York
Stock Exchange or any other national or regional securities exchange or
automated quotation system, the Company shall, if permitted by the
rules of such exchange or automated quotation system, to list and keep
listed, so long as the Common Stock shall be so listed on such exchange or
automated quotation system, all the Common Stock issuable upon exchange of the
Notes; provided that if the rules of such
exchange or automated quotation system permit the Company to defer the listing
of such Common Stock until the first exchange of the Notes in accordance with
the provisions of this Indenture, the Company covenants to list such Common
Stock issuable upon exchange of the Notes in accordance with the requirements
of such exchange or automated quotation system at such time.


 


Section 15.08.                       Responsibility of Trustee.  The Trustee and any other Exchange Agent
shall not at any time be under any duty or responsibility to determine the
Applicable Exchange Rate or whether any facts exist which may require any
adjustment of the Exchange Rate, or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed,
in making the same.  The Trustee and any
other Exchange Agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any capital
stock, other securities or other assets or property, which may at any time be
issued or delivered upon the exchange of any Note; and the Trustee and any
other Exchange Agent make no representations with respect thereto.  Neither the Trustee nor any Exchange Agent
shall be responsible for any failure of the Issuer or the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Note for the purpose
of exchange or to comply with any of the duties, responsibilities or covenants
of the Issuer or the Company contained in this Article 15.  Without limiting the generality of the
foregoing, neither the Trustee nor any Exchange Agent shall be under any 


 


73

















 


responsibility to
determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 15.05 relating either to the
kind or amount of shares of capital stock or other securities or other assets
or property (including cash) receivable by Noteholders upon the exchange of
their Notes after any event referred to in such Section 15.05 or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Section 8.12, may accept as conclusive evidence of the correctness of any
such provisions, and shall be protected in relying upon, the Officers’
Certificate and Opinion of Counsel (which the Issuer shall be obligated to file
with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.  The Trustee shall
not at any time be under any duty or responsibility to determine the accuracy
of the method employed in calculating the Trading Price or whether any facts
exist which may require any adjustment of the Trading Price.


 


Section 15.09.                       Notice to Holders Prior to Certain Actions.  In case:


 


(a)                                  the
Company shall declare a dividend (or any other distribution) on the Common
Stock that would require an adjustment in the Exchange Rate pursuant to
Section 15.05; or


 


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


 


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


 


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


 


the Issuer shall
cause to be filed with the Trustee and to be mailed to each holder of Notes at
its address appearing on the Note Register provided for in Section 2.05 of
this Indenture, as promptly as possible but in any event at least ten
(10) calendar days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution or rights or warrants, or, if a record
is not to be taken, the date as of which the holders of Common Stock of record
to be entitled to such dividend, distribution or rights are to be determined,
or (y)(i) the date on which such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up
and (ii) whether the Company has determined that it is not a “domestically
controlled investment entity” as defined in Section 897 of the Internal
Revenue Code and, therefore, will withhold under Section 1445 of the
Internal Revenue Code unless the non-U.S. 
Noteholder would not be treated as having owned (under all applicable
rules for direct, indirect, and constructive 


 


74

















 


ownership) more
than five percent of the fair market value of the Common Stock during the
applicable testing period.  Failure to
give such notice, or any defect therein, shall not affect the legality or
validity of such dividend, distribution, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up.


 


Section 15.10.                       Settlement upon Exchange.  (a)  Upon exchange of any Notes, subject
to Sections 15.01, 15.02 and this Section 15.10, the Issuer shall satisfy
its obligation upon exchange (the “Exchange
Obligation”) by payment and delivery of cash and, at the election of
the Issuer, shares of Common Stock, or a combination of cash and shares of
Common Stock, as described below, for each $1,000 aggregate principal amount of
Notes tendered for exchange in accordance with their terms.


 


(b)                                 Upon
exchange of Notes, the Issuer will deliver, in respect of each $1,000 principal
amount of Notes tendered for exchange in accordance with their terms:


 


(i)                               cash and
Common Stock, subject to clause (d) below with respect to all or any
portion of Common Stock the Issuer elects to settle in cash, or a combination
thereof, equal to the sum of the Daily Settlement Amounts for each of the 20
Trading Days during the Applicable Observation Period; and


 


(ii)                            an amount
in cash in lieu of any fractional shares of Common Stock as provided in
Section 15.03.


 


(c)                                  The Daily
Settlement Amounts for each of the twenty (20) Trading Days during the
Applicable Observation Period and any amount in cash to be delivered in lieu of
any fractional shares of Common Stock will be determined by the Issuer promptly
after the end of the Applicable Observation Period and notified in writing to
the Trustee.


 


(d)                                 By the
close of business on the Business Day prior to the first Scheduled Trading Day
of the Applicable Observation Period, the Issuer may specify a percentage of
each Daily Share Amount that will be settled in cash (the “Cash Percentage”) and will notify the
Holder of such Cash Percentage through written notice to the Trustee (the “Cash Percentage Notice”).  With respect to any Notes called for
redemption that are exchanged on or after the Issuer mails the notice of
redemption, the Cash Percentage that the Issuer specifies for the Applicable
Observational Period will apply to all such exchanges.  If the Issuer elects to specify a Cash
Percentage, (x) the amount of cash that the Issuer will deliver in lieu of
all or an applicable portion of the Daily Share Amount in respect of each
Trading Day in the Applicable Observation Period will equal the product of:
(i) the Cash Percentage, expressed as a fraction, (ii) the Daily
Share Amount for such Trading Day (assuming for this purpose the Issuer has not
specified a Cash Percentage), and (iii) the Daily VWAP for such Trading
Day and (y) the number of shares of Common Stock deliverable in respect of
each Trading Day in the Applicable Observation Period (in lieu of the full
Daily Share Amount for such Trading Day) will be a percentage of the Daily
Share Amount (assuming the Issuer has not specified a Cash Percentage) equal to
the product of (i) the difference between 100% and the Cash Percentage,
expressed as a fraction, and (ii) the Daily Share Amount for such Trading
Day.


 


75
















 


(e)                                  If the Company does not
specify a Cash Percentage by the close of business on the Trading Day prior to
the first scheduled Trading Day of the Applicable Observation Period, the
Issuer shall settle 100% of the Daily Share Amount for each Trading Day in the
Applicable Observation Period with shares of Common Stock; provided,
however, that the Issuer shall pay cash
in lieu of fractional shares otherwise issuable upon exchange of such
Note.  The Issuer may, at its option,
revoke any Cash Percentage Notice through written notice to the Trustee by the
close of business on the Business Day prior to the first Scheduled Trading Day
of the Applicable Observation Period.


 


(f)                                    Payment of the cash and, if
applicable, delivery of shares of Common Stock pursuant to Section 15.10(b) shall
be made by the Issuer on the third Business Day immediately following the last
Trading Day of the Applicable Observation Period to the holder of a Note
surrendered for exchange, or such holder’s nominee or nominees, and the Issuer
shall deliver to the Exchange Agent or to such holder, or such holder’s nominee
or nominees, certificates or a book-entry transfer through the Depositary for
the number of full shares of Common Stock, if any, to which such holder shall
be entitled as part of such Exchange Obligation.


 


(g)                                 Upon exchange of Notes, the
Holder must deliver to the Issuer cash equal to the amount the Issuer is
required to deduct or withhold under applicable law in connection with such
exchange; provided, however,
that if the Holder does not deliver such cash, the Issuer may (or may instruct
the Exchange Agent to) deduct and withhold from the consideration otherwise
deliverable to such Holder the amount required to be deducted and withheld
under applicable law.


 


Section 15.11.                                               Exchange Rate Adjustment After Certain Designated Events.  (a)  Subject to the
provisions hereof, if a Noteholder elects to exchange its Notes in connection
with the occurrence of a transaction described in clause (1) or clause (2) of
the definition of Designated Event and for the avoidance of doubt, subject to
the proviso immediately following clause (5) thereof, the Issuer will
increase the Applicable Exchange Rate for the Notes so surrendered for exchange
by a number of additional shares of Common Stock (the “Additional Designated Event Shares”) as
specified below; provided that
the Additional Designated Event Shares will only be payable as set forth
below.  An exchange of Notes will be
deemed for these purposes to be “in connection with” such a Designated Event if
the Exchange Notice is received by the Exchange Agent from and after the
Effective Date of the Designated Event until the corresponding Designated Event
Repurchase Date.


 


(b)                                 The number of Additional
Designated Event Shares will be determined by reference to the table in
paragraph (e) below and is based on the date on which the Designated Event
transaction becomes effective (the “Effective
Date”) and the price paid per share of Common Stock in the relevant
Designated Event (in the case of a Designated Event described in the clause (1) of
the definition thereof in which holders of the Common Stock receive only cash),
or in the case of any other Designated Event described in clause (1) or
clause (2) of the definition thereof, the average of the Closing Sale
Prices of the Common Stock over the ten Trading Day period ending on the
Trading Day preceding the Effective Date of such other Designated Event (the “Stock Price”).


 


76

















 


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


 


(d)                                 The number of Additional
Designated Event Shares will be adjusted in the same manner and for the same
events as the Exchange Rate is adjusted pursuant to Section 15.05.


 


(e)                                  The following table sets
forth the Stock Price and number of Additional Designated Event Shares to be
added to the Applicable Exchange Rate per $1,000 principal amount of Notes:


 


	
   

  	
   

  	
  Stock Price

  	
   

  
	
  Effective Date

  	
   

  	
  $66.01

  	
   

  	
  $70.00

  	
   

  	
  $80.00

  	
   

  	
  $90.00

  	
   

  	
  $100.00

  	
   

  	
  $110.00

  	
   

  	
  $120.00

  	
   

  	
  $130.00

  	
   

  	
  $140.00

  	
   

  	
  $150.00

  	
   

  	
  $160.00

  	
   

  	
  $200.00

  	
   

  
	
  October 12, 2010

  	
   

  	
  3.4960

  	
   

  	
  3.2488

  	
   

  	
  2.4637

  	
   

  	
  1.9386

  	
   

  	
  1.5843

  	
   

  	
  1.3440

  	
   

  	
  1.1819

  	
   

  	
  1.0700

  	
   

  	
  0.9888

  	
   

  	
  0.9206

  	
   

  	
  0.8623

  	
   

  	
  0.6880

  	
   

  
	
  October 15, 2011

  	
   

  	
  3.4960

  	
   

  	
  3.2170

  	
   

  	
  2.3936

  	
   

  	
  1.8400

  	
   

  	
  1.4765

  	
   

  	
  1.2294

  	
   

  	
  1.0627

  	
   

  	
  0.9537

  	
   

  	
  0.8785

  	
   

  	
  0.8171

  	
   

  	
  0.7644

  	
   

  	
  0.6094

  	
   

  
	
  October 15, 2012

  	
   

  	
  3.4960

  	
   

  	
  3.1842

  	
   

  	
  2.3160

  	
   

  	
  1.7392

  	
   

  	
  1.3537

  	
   

  	
  1.0980

  	
   

  	
  0.9353

  	
   

  	
  0.8310

  	
   

  	
  0.7607

  	
   

  	
  0.7055

  	
   

  	
  0.6593

  	
   

  	
  0.5254

  	
   

  
	
  October 15, 2013

  	
   

  	
  3.4960

  	
   

  	
  3.1429

  	
   

  	
  2.2219

  	
   

  	
  1.6161

  	
   

  	
  1.2165

  	
   

  	
  0.9569

  	
   

  	
  0.7873

  	
   

  	
  0.6845

  	
   

  	
  0.6253

  	
   

  	
  0.5814

  	
   

  	
  0.5439

  	
   

  	
  0.4339

  	
   

  
	
  October 15, 2014

  	
   

  	
  3.4960

  	
   

  	
  3.0836

  	
   

  	
  2.1030

  	
   

  	
  1.4654

  	
   

  	
  1.0550

  	
   

  	
  0.7917

  	
   

  	
  0.6315

  	
   

  	
  0.5356

  	
   

  	
  0.4895

  	
   

  	
  0.4525

  	
   

  	
  0.4228

  	
   

  	
  0.3370

  	
   

  
	
  October 15, 2015

  	
   

  	
  3.4960

  	
   

  	
  2.9861

  	
   

  	
  1.9291

  	
   

  	
  1.2597

  	
   

  	
  0.8424

  	
   

  	
  0.5892

  	
   

  	
  0.4442

  	
   

  	
  0.3682

  	
   

  	
  0.3355

  	
   

  	
  0.3115

  	
   

  	
  0.2916

  	
   

  	
  0.2323

  	
   

  
	
  October 15, 2016

  	
   

  	
  3.4960

  	
   

  	
  2.8145

  	
   

  	
  1.6391

  	
   

  	
  0.9337

  	
   

  	
  0.5315

  	
   

  	
  0.3184

  	
   

  	
  0.2199

  	
   

  	
  0.1884

  	
   

  	
  0.1742

  	
   

  	
  0.1621

  	
   

  	
  0.1517

  	
   

  	
  0.1203

  	
   

  
	
  October 15, 2017

  	
   

  	
  3.4960

  	
   

  	
  2.6325

  	
   

  	
  0.8468

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  



 


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


 


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


 


(ii)                            if the
Stock Price is in excess of $200.00 per share of Common Stock (the “Make Whole Cap”) (subject to adjustment as
described below) no additional Designated Event Shares will be added to the
Applicable Exchange Rate; and


 


(iii)                         if the
Stock Price is less than $66.01 per share of Common Stock (the “Make Whole Floor”) (subject to adjustment
as described below) no additional Designated Event Shares will be added to the
Applicable Exchange Rate.


 


The Make Whole Cap and Make Whole Floor shall be
adjusted as of any date on which the Exchange Rate of the Notes is adjusted
pursuant to Section 15.05.  The
adjusted Make Whole Cap or Make Whole Floor, as the case may be, shall equal
the Make Whole Cap or Make Whole Floor, as the case may be, applicable
immediately prior to such adjustment, multiplied by a



 


77

















 


fraction, (i) the numerator of which is the
Exchange Rate immediately prior to the adjustment giving rise to the adjustment
and (ii) the denominator of which is the Exchange Rate as so adjusted.


 


(g)                                 Notwithstanding anything in
this Section 15.11 to the contrary, in no event will the total number of
shares of Common Stock issuable upon exchange of the Notes exceed 15.1492 per
$1,000 principal amount of Notes, subject to adjustment in the same manner as
the Exchange Rate pursuant to Section 15.05.


 


Section 15.12.                                               Recapitalization, Reclassifications and Changes of Common Stock.  If the Company is a party to a
consolidation, merger, binding share exchange, reclassification or sale or
conveyance of all or substantially all of its properties and assets, in each
case pursuant to which all of the Common Stock is exchanged for cash,
securities or other property, then at the effective time of the transaction,
the Daily VWAP, each Daily Settlement Amount and each Daily Exchange Value will
be calculated based on the kind and amount of cash, securities or other
property that a holder of such a number of shares of Common Stock equal to the
Applicable Exchange Rate would have received in such transaction.  For purposes of the foregoing, where a
consolidation, merger or binding share exchange involves a transaction that
causes shares of Common Stock to be exchanged into the right to receive more
than a single type of consideration based upon any form of stockholder
election, such consideration will be deemed to be the weighted average of the
types and amounts of consideration received by the holders of Common Stock that
affirmatively make such an election.


 


Section 15.13.                                               Calculations in Respect of Notes.  Except as otherwise specifically stated
herein or in the Notes, all calculations to be made in respect of the Notes,
including, but not limited to, the Exchange Price and the Exchange Rate, shall
be the obligation of the Issuer.  All
calculations made by the Issuer or its agent as contemplated pursuant to the
terms hereof and of the Notes shall be made in good faith and be final and
binding on the Notes and the Holders of the Notes absent manifest error.  The Issuer shall provide a schedule of
calculations to the Trustee, and the Trustee shall be entitled to rely upon the
accuracy of the calculations by the Issuer without independent verification.  The Trustee shall forward calculations made
by the Issuer to any Holder of Notes upon request.


 


ARTICLE 16

MEETINGS OF HOLDERS OF NOTES


 


Section 16.01.                                               Purposes for Which Meetings May Be Called.  A meeting of Holders of Notes
may be called at any time and from time to time pursuant to this Article 16
to make, give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be made, given or
taken by Holders of Notes.


 


Section 16.02.                                               Call, Notice and Place of Meetings.  (a)  The Trustee may at any time call a
meeting of Holders of Notes for any purpose specified in Section 16.01, to
be held at such time and at such place as the Trustee shall determine.  Notice of every meeting of Holders of Notes,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 17.04, not less than 20 nor more than 180 days prior
to the date fixed for the meeting.


 


78

















 


(b)                                 In case at any time the
Issuer, pursuant to a Board Resolution, the Company, or the Holders of at least
25% in principal amount of the outstanding Notes shall have requested the Trustee
to call a meeting of the Holders of Notes for any purpose specified in Section 16.01,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 20 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Issuer, the Company or the Holders of Notes in the amount
above specified, as the case may be, may determine the time and the place for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section 16.02.


 


Section 16.03.                                               Persons Entitled to Vote at Meetings.  To be entitled to vote at any meeting of
Holders of Notes, a Person shall be (a) a Holder of one or more
outstanding Notes, or (b) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more outstanding Notes by such
Holder or Holders.  The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of Notes
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Issuer and the Company and their respective counsel.


 


Section 16.04.                                               Quorum; Action.  The Persons entitled to vote a majority in
principal amount of the outstanding Notes shall constitute a quorum for a
meeting of Holders of Notes; provided,
however, that if any action is to
be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the outstanding Notes, the Persons
entitled to vote such specified percentage in principal amount of the
outstanding Notes shall constitute a quorum. 
In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Notes, be dissolved.  In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting.  In the absence of a quorum at
the reconvening of any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days; at the reconvening of
any meeting adjourned or further adjourned for lack of a quorum, the persons
entitled to vote 25% in aggregate principal amount of the then outstanding
Notes shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting.  Notice
of the reconvening of any adjourned meeting shall be given as provided in Section 16.02(a),
except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened.


 


Except as limited by the proviso to Section 10.02,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the persons entitled to vote a majority in aggregate principal amount of the
outstanding Notes; provided, however, that, except as
limited by the proviso to Section 10.02, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the outstanding Notes may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
principal amount of the outstanding Notes.


 


79

















 


Any resolution passed or decision taken at any meeting
of Holders of Notes duly held in accordance with this Section 16.04 shall
be binding on all the Holders of Notes, whether or not present or represented
at the meeting.


 


Notwithstanding the foregoing provisions of this Section 16.04,
if any action is to be taken at a meeting of Holders of Notes with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action that this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage in principal amount of all outstanding
Notes affected thereby:


 


(i)                               there
shall be no minimum quorum requirement for such meeting; and


 


(ii)                            the
principal amount of the outstanding Notes that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.


 


Section 16.05.                                               Determination of Voting Rights; Conduct and Adjournment of Meetings.  (a)  Notwithstanding any
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Holders of Notes in regard to proof
of the holding of Notes and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem
appropriate.  Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 9.01 and the appointment of any
proxy shall be proved in the manner specified in Section 9.01 or by having
the signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 9.01 to certify to the
holding of the Notes.  Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 9.01
or other proof.


 


(b)                                 The Trustee shall, by an
instrument in writing appoint a temporary chairman of the meeting, unless the
meeting shall have been called by the Issuer, the Company or by Holders of
Notes as provided in Section 16.02(b), in which case the Issuer, the Company
or the Holders of Notes calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman.  A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
outstanding Notes represented at the meeting.


 


(c)                                  At any meeting each Holder
of such Notes or proxy shall be entitled to one vote for each $1,000 principal
amount of the outstanding Notes held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Note
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding.  The chairman of the
meeting shall have no right to vote, except as a
Holder of Notes or proxy.


 


80

















 


(d)                                 Any meeting of Holders of
Notes duly called pursuant to Section 16.02 at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a majority in
principal amount of the outstanding Notes represented at the meeting, and the
meeting may be held as so adjourned without further notice.


 


Section 16.06.                                               Counting Votes and Recording Action of Meetings.  The vote upon any resolution
submitted to any meeting of Holders of Notes shall be by written ballots on
which shall be subscribed the signatures of the Holders of Notes or of their
representatives by proxy and the principal amounts and serial numbers of the
outstanding Notes held or represented by them. 
The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting.  A record, at least in duplicate, of the
proceedings of each meeting of Holders of Notes shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 16.02 and, if applicable, Section 16.04.  Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.  Any record
so signed and verified shall be conclusive evidence of the matters therein
stated.


 


ARTICLE 17

MISCELLANEOUS PROVISIONS


 


Section 17.01.                                               Provisions Binding on Issuer’s, Guarantor’s and the Company’s
Successors.  All the covenants, stipulations, promises and
agreements by the Issuer, the Guarantor or the Company contained in this
Indenture shall bind their respective successors and assigns whether so
expressed or not.


 


Section 17.02.                                               Common Stock Delivery Agreement.  The Issuer has entered into an agreement with
the Company pursuant to which the Company has agreed that, in the event the
Issuer elects to deliver any shares of Common Stock upon exchange of the Notes,
the Company will deliver such shares of Common Stock to the Issuer for delivery
to the Holder upon exchange of the Notes and the Issuer will issue a
corresponding number of Units to the Company or one of its Affiliates.


 


Section 17.03.                                               Official Acts by Successor Corporation.  Any act or proceeding by any provision of
this Indenture authorized or required to be done or performed by any board,
committee or officer of the Issuer shall and may be done and performed with
like force and effect by the like board, committee or officer of any Person
that shall at the time be the lawful sole successor of the Issuer or the
Company.


 


Section 17.04.                                               Addresses for Notices, etc.  Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Notes on the Issuer or the Company shall be in writing and
shall be deemed to have 


 


81

















 


been sufficiently
given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box, or sent by
overnight courier, or sent by telecopier transmission addressed as follows:


 


To the Issuer:


 


SL Green Operating Partnership, L.P.

420 Lexington Avenue

New York, NY  10170

Telecopier No.:  (646) 293-1356

Attention:  General Counsel


 


To the Guarantor:


 


Reckson Operating Partnership, L.P.

420 Lexington Avenue

New York, NY  10170

Telecopier No.:  (646) 293-1356

Attention:  General Counsel


 


To the Company:


 


SL Green Realty Corp.

420 Lexington Avenue

New York, NY  10170

Telecopier No.:  (646) 293-1356

Attention:  General Counsel


 


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


 


The Bank of New York Mellon, as Trustee

101 Barclay Street

Floor 8W

New York, NY  10286

Attention:  Corporate Trust
Administration

Facsimile No.:  (212) 815-5707


 


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


 


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


 


82

















 


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


 


The Trustee agrees to accept and act upon instructions
or directions pursuant to this Indenture sent by unsecured e-mail, PDF,
facsimile transmission or other similar unsecured electronic methods, provided,
however, that the Trustee shall have received an incumbency certificate listing
persons designated to give such instructions or directions and containing
specimen signatures of such designated persons, which such incumbency
certificate shall be amended and replaced whenever a person is to be added or
deleted from the listing.  If the Issuer
or Company elects to give the Trustee e-mail or facsimile instructions (or
instructions by a similar electronic method) and the Trustee in its discretion
elects to act upon such instructions, the Trustee’s understanding of such
instructions shall be deemed controlling. The Trustee shall not be liable for
any losses, costs or expenses arising directly or indirectly from the Trustee’s
reliance upon and compliance with such instructions notwithstanding such
instructions conflict or are inconsistent with a subsequent written
instruction. The Issuer and Company agree to assume all risks arising out of
the use of such electronic methods to submit instructions and directions to the
Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, and the risk or interception and misuse by third
parties.


 


Section 17.05.                                               Governing Law.  This Indenture, the Notes and the Guarantee
shall be governed by, and construed in accordance with, the laws of the State
of New York.


 


Section 17.06.                                               Evidence of Compliance with Conditions Precedent, Certificates to
Trustee.  Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with,
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with, except that (i) in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished and (ii) in
the case of the initial issuance of the Notes, no opinion need be furnished.


 


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


 


83

















 


Section 17.07.                                               Legal Holidays.  In any case where any interest payment date,
Redemption Date, Designated Event Repurchase Date, Stated Maturity or maturity
date of any Note, or the last date on which a Holder has the right to exchange
a Note, shall not be a Business Day at any place of payment, then
(notwithstanding any other provision of this Indenture or any Note other than a
provision in such Note which specifically states that such provision shall
apply in lieu hereof), payment of interest or principal (and premium, if any)
or exchange of such security need not be made at such place of payment on such
date, but may be made on the next succeeding Business Day at such place of
payment with the same force and effect as if made on the interest payment date,
Redemption Date, Designated Event Repurchase Date, Stated Maturity or maturity
date, or on such last day for exchange, provided
that no interest shall accrue on the amount so payable for the period from and
after such interest payment date, Redemption Date, Designated Event Repurchase
Date, Stated Maturity or maturity date, as the case may be.


 


Section 17.08.                                               No Security Interest Created.  Nothing in this Indenture or in the Notes
(including the Guarantee endorsed thereon), expressed or implied, shall be
construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction in which property of the Issuer or its subsidiaries is located.


 


Section 17.09.                                               Benefits of Indenture.  Nothing in this Indenture or in the Notes
(including the Guarantee endorsed thereon), express or implied, shall give to
any Person, other than the parties hereto, any Paying Agent, any authenticating
agent, any Note Registrar, any Exchange Agent and their successors hereunder
and the Holders of Notes any benefit or any legal or equitable right, remedy or
claim under this Indenture.


 


Section 17.10.                                               Table of Contents, Headings, etc.  The table of contents and the titles and
headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.


 


Section 17.11.                                               Execution in Counterparts.  This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts
shall together constitute but one and the same instrument.


 


Section 17.12.                                               Severability.  In case any provision in this Indenture or in
the Notes (including the Guarantee endorsed thereon) shall be invalid, illegal
or unenforceable, then the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


Section 17.13.                                               No Stockholder Rights for Noteholders.  Noteholders, as such, will not have any
rights as stockholders of the Company, including, without limitation, voting
rights and rights to receive any dividends or other distributions on the Common
Stock.


 


Section 17.14.                                               Waiver of Jury Trial.  EACH OF THE ISSUER, THE GUARANTOR, THE
COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY 


 


84

















 


IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE
GUARANTEE OR THE TRANSACTION CONTEMPLATED HEREBY.


 


85

















 


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


 


	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  SL Green Realty Corp.

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Andrew S. Levine

  
	
   

  	
   

  	
   

  	
  Name: Andrew S. Levine

  
	
   

  	
   

  	
   

  	
  Title: Executive Vice President, Chief Legal
  Officer, General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  RECKSON OPERATING PARTNERSHIP, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Wyoming Acquisition GP LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Andrew S. Levine

  
	
   

  	
   

  	
   

  	
  Name: Andrew S. Levine

  
	
   

  	
   

  	
   

  	
  Title: Director

  
	
   

  	
   

  	
   

  
	
   

  	
  SL GREEN REALTY CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Andrew S. Levine

  
	
   

  	
   

  	
  Name: Andrew S. Levine

  
	
   

  	
   

  	
  Title: Executive Vice President, Chief Legal
  Officer, General Counsel and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Sherma Thomas

  
	
   

  	
   

  	
  Name: Sherma Thomas

  
	
   

  	
   

  	
  Title: Senior Associate

  



 


86
















 


EXHIBIT A


 


[Include only for Global Notes]


 


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


 


[Include only for Notes that are Restricted
Notes]


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER, SL GREEN REALTY
CORP.  OR A SUBSIDIARY OF THE ISSUER OR
OF SL GREEN REALTY CORP.; (B) TO A PERSON THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE); OR (C) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
UNDER THE SECURITIES ACT (INCLUDING, WITHOUT LIMITATION, TO ACCREDITED
INVESTORS).


 


[Include only for shares of Common Stock that
are Restricted Notes]


 


THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE.  BY ITS ACQUISITION
HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER, SL GREEN
REALTY CORP.  OR A SUBSIDIARY OF THE
ISSUER OR OF SL GREEN REALTY CORP.; (B) UNDER A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED
IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS 


 


A-1

















 


PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE
144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL,
PRIOR TO ANY TRANSFER OF THIS NOTE, FURNISH TO THE TRANSFER AGENT AND THE
ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS MAY BE
REQUIRED TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT.


 


A-2

















 


SL GREEN OPERATING PARTNERSHIP,
L.P.

3.00% EXCHANGEABLE SENIOR NOTES DUE 2017


 


No.


 


CUSIP:


 


$


 


SL Green Operating Partnership, L.P., a Delaware
limited partnership (herein called the “Issuer,” which
term includes any successor under the Indenture referred to on the reverse
hereof), for value received hereby promises to pay to Cede & Co., or
its registered assigns, the principal sum of
                                              
($         ), or such lesser
amount as is set forth in the Schedule of Increases or Decreases in Note on the
other side of this Note, on October 15, 2017 at the office or agency of
the Issuer maintained for that purpose in accordance with the terms of the
Indenture, in such coin or currency of the United States of America as at the
time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually on April 15 and October 15
of each year, commencing April 15, 2011, on said principal sum at said
office or agency, in like coin or currency, at the rate per annum of 3.00%,
from the April 15 or October 15, as the case may be, next preceding
the date of this Note to which interest has been paid or duly provided for,
unless no interest has been paid or duly provided for on the Notes, in which
case from October 12, 2010 until payment of said principal sum has been
made or duly provided for.  Payment of
the principal of and interest on the Notes not represented by a Global Note
will be made at the Corporate Trust Office or the office maintained for that
purpose in the Borough of Manhattan, The City of New York, New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided,
however, that at the option of the
Issuer, payments of interest on the Notes may be made (i) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Note Register or (ii) by wire transfer to an account maintained by the
Person entitled thereto located within the United States.


 


The Issuer promises to pay interest on overdue
principal, premium, if any, and (to the extent that payment of such interest is
enforceable under applicable law) interest at the rate borne by the Notes.


 


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


 


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


 


A-3

















 


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


 


Dated:


 


	
   

  	
  SL GREEN OPERATING PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  SL Green Realty Corp.

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name: Gregory F. Hughes

  
	
   

  	
   

  	
  Title: Chief Financial Officer and Chief Operating
  Officer

  



 


A-4

















 


TRUSTEE’S CERTIFICATE OF
AUTHENTICATION


 


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


 


Dated:


 


	
   

  	
  The Bank of New York Mellon, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


A-5

















 


[FORM OF REVERSE SIDE OF
NOTE]


 


SL GREEN OPERATING PARTNERSHIP,
L.P.


3.00% EXCHANGEABLE SENIOR NOTES
DUE 2017


 


This Note is one of a duly authorized issue of Notes
of the Issuer, designated as its 3.00% Exchangeable Senior Notes due 2017
(herein called the “Notes”), issued
under and pursuant to an Indenture dated as of October 12, 2010 (herein
called the “Indenture”), among the Issuer, the
Guarantor, the Company and The Bank of New York Mellon, as trustee (herein
called the “Trustee”), to which Indenture and
all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer, the Guarantor and the Holders of the
Notes.  Defined terms used but not
otherwise defined in this Note shall have the respective meanings ascribed
thereto in the Indenture.


 


If an Event of Default (other than an Event of Default
specified in Section 7.01(h) or 7.01(i) of the Indenture) occurs
and is continuing, the principal of, premium, if any, and accrued and unpaid
interest on all Notes may be declared to be due and payable by either the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding, and, upon said declaration the same shall be
immediately due and payable.  If an Event
of Default specified in Section 7.01(h) or 7.01(i) of the
Indenture occurs and is continuing, then the principal of and premium, if any,
and interest accrued and unpaid on all the Notes shall be immediately due and
payable without any declaration or other action on the part of the Trustee or
any Holder of Notes.


 


The Indenture contains provisions permitting the
Issuer and the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Notes at the time outstanding, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Notes, subject to exceptions set forth in Section 10.02 of the
Indenture.  Subject to the provisions of
the Indenture, the Holders of not less than a majority in aggregate principal
amount of the Notes at the time outstanding may, on behalf of the Holders of
all of the Notes, waive certain past defaults or Events of Default.


 


No reference herein to the Indenture and no provision
of this Note or of the Indenture shall impair, as among the Issuer and the
Holder of the Notes, the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, on and interest on
this Note at the place, at the respective times, at the rate and in the coin or
currency herein and in the Indenture prescribed.


 


Interest on the Notes shall be computed on the basis
of a 360-day year of twelve 30-day months.


 


The Notes are issuable in fully-registered form,
without coupons, in minimum denominations of $1,000 principal amount and in
integral multiples of $1,000 in excess thereof. 
At the office or agency of the Issuer referred to on the face hereof,
and in the manner and subject 


 


A-6

















 


to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient to cover any
tax, assessment or other governmental charge that may be imposed in connection
with any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.


 


The Issuer shall have the right to redeem the Notes
under certain circumstances as set forth in Section 3.01 of the Indenture.


 


The Notes are not subject to redemption through the
operation of any sinking fund.


 


Upon the occurrence of a Designated Event, Holders
shall have the right to require the Issuer to repurchase all or a portion of
their Notes pursuant to Section 4.01 of the Indenture.


 


Subject to and in compliance with the provisions of
the Indenture, the Holder hereof shall have the right to exchange each $1,000
principal amount of this Note into cash and, if applicable, shares of Common
Stock as provided in Article 15 of the Indenture.


 


In the event the Holder surrenders this Note for
exchange in connection with certain Designated Events, the Issuer will increase
the Applicable Exchange Rate by the Additional Designated Event Shares if, as
and when provided in Section 15.11 of the Indenture.


 


No recourse for the payment of the principal of
(including the Redemption Price or Designated Event Repurchase Price upon
redemption or repurchase pursuant to Article 3 and Article 4 of the
Indenture) or any premium, if any, or interest on this Note, or for any claim
based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer in the Indenture or any
supplemental indenture or in this Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, partner, member, manager, employee, agent, officer, director or
subsidiary, as such, past, present or future, of the Company, the Issuer or any
of the Company’s Subsidiaries or of any successor thereto, either directly or
through the Company, the Issuer or any of the Company’s Subsidiaries or of any
successor thereto, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as consideration for, the execution of the
Indenture and the issue of this Note.


 


In addition to the rights provided to Holders of Notes
under the Indenture, Holders shall have all the rights set forth in the
Registration Rights Agreement dated as of October 12, 2010, among the
Issuer, the Company and the Initial Purchaser named therein (the “Registration Rights Agreement”).


 


A-7

















 


GUARANTEE


 


For value received, Reckson Operating Partnership,
L.P., a Delaware limited partnership (the “Guarantor”)
hereby absolutely, fully and unconditionally and irrevocably guarantees to the
Holder of this Note the payment of principal of, and premium, if any, and
interest on this Note upon which this Guarantee is endorsed in the amounts and
at the time when due and payable, whether by declaration thereof, or otherwise,
and interest on the overdue principal and interest, if any, of this Note, if
lawful, and the payment or performance of all other obligations of the Issuer
under the Indenture or the Notes, to the holder of this Note and the Trustee,
all in accordance with and subject to the terms and limitations of this Note
and the Indenture, including Article 13 thereof. This Guarantee will not
become effective until the Trustee duly executes the certificate of
authentication on this Note. This Guarantee shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
conflict of law principles thereof.


 


IN WITNESS WHEREOF, the Guarantor has caused this
Guarantee to be duly executed.


 


	
   

  	
  RECKSON OPERATING PARTNERSHIP, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Wyoming Acquisition GP LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Gregory F. Hughes

  
	
   

  	
   

  	
   

  	
  Title:   Treasurer

  



 


A-1

















 


ABBREVIATIONS


 


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


 


	
  TEN-COM

  	
   

  	
  as tenants in common

  	
   

  	
  UNIF GIFT 

  MIN ACT -

  
	
   

  	
   

  	
   

  	
   

  	
  Custodian

  
	
  TEN-ENT

  	
   

  	
  as tenant by the entireties

  	
   

  	
  (Cust) (Minor)

  
	
  JT-TEN

  	
   

  	
  as joint tenants with right of survivorship and not
  under Uniform Gifts to Minors Act

  	
   

  	
   

  
	
   

  	
   

  	
  as tenants in common

  	
   

  	
  (State)

  



 


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


 


A-2
















 


EXCHANGE NOTICE


 


TO:         SL
GREEN OPERATING PARTNERSHIP, L.P.


The Bank of New York Mellon, as Trustee


 


The undersigned registered owner of this Note hereby
irrevocably exercises the option to exchange this Note, or the portion thereof
(which is $1,000 or a multiple thereof) below designated, into cash and, if
applicable, shares of Common Stock, in accordance with the terms of the
Indenture referred to in this Note, and directs that the shares of Common
Stock, if any, issuable and deliverable upon such exchange, together with any
check in payment for cash, if any, payable upon exchange or for fractional
shares and any Notes representing any unexchanged principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name
has been indicated below.  Capitalized
terms used herein but not defined shall have the meanings ascribed to such
terms in the Indenture.  If shares or any
portion of this Note not exchanged are to be issued in the name of a person
other than the undersigned, the undersigned will provide the appropriate
information below and pay all transfer taxes payable with respect thereto.  Any amount required to be paid by the
undersigned on account of interest accompanies this Note.


 


The undersigned registered owner of this Note hereby
certifies that it or the Person on whose behalf the Notes are being exchanged
is a qualified institutional buyer within the meaning of Rule 144A under
the Securities Act of 1933, as amended.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee

  



 


A-3

















 


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


 


	
  Please print name and address

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Name)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (Street Address)

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  (City, State and Zip Code)

  	
   

  
	
   

  	
   

  
	
  Principal amount

  	
   

  
	
  to be exchanged

  	
   

  
	
  (if less than all):

  	
   

  
	
   

  	
   

  
	
  $

  	
   

  
	
  Social Security or Other

  	
   

  
	
  Taxpayer Identification Number:

  	
   

  
	
   

  	
   

  



 


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


 


A-4

















 


DESIGNATED EVENT REPURCHASE
NOTICE


 


TO:         SL
GREEN OPERATING PARTNERSHIP, L.P.

The Bank of New York Mellon, as Trustee


 


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


 


NOTICE: The signatures of the Holder(s) hereof
must correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.  Note Certificate Number (if applicable):


 


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


 


	
  Social Security or Other

  	
   

  	
   

  
	
  Taxpayer Identification Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee

  
				



 


A-5

















 


ASSIGNMENT


 


For value received
                                
hereby sell(s) assign(s) and transfer(s) unto
                                
(Please insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints
                                
attorney to transfer said Note on the books of the Issuer, with full power of
substitution in the premises.


 


In connection with any transfer of the Note, the
undersigned confirms that such Note is being transferred:


 


·                   ̈  To SL Green Operating
Partnership, L.P., SL Green Realty Corp. 
or a subsidiary of SL Green Operating Partnership, L.P.  or SL Green Realty Corp.;


 


·                   ̈  To a “qualified
institutional buyer” in compliance with Rule 144A under the
Securities Act of 1933, as amended; or


 


·                   ̈  To an “accredited
investor” as defined in Rule 501(a) of Regulation D under
the Securities Act of 1933, as amended and documents are being furnished which
comply with the conditions of transfer set forth in this Note and the Indenture;
or


 


Unless one of the boxes is checked, the Trustee will
refuse to register any of the Notes evidenced by this certificate in the name
of any person other than the registered holder thereof.


 


	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature(s)

  
	
   

  	
   

  	
   

  
	
   

  	
   

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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Signature Guarantee

  



 


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


 


A-6

















 


ASSIGNMENT


 


For value received
                                
sell(s) assign(s) and transfer(s) unto
                                
(Please insert social security or other Taxpayer Identification Number of
assignee)
                                
shares of Common Stock, and hereby irrevocably constitutes and appoints
                                
attorney to transfer said shares of Common Stock on the books of the Issuer, with
full power of substitution in the premises.


 


In connection with any transfer of the shares of
Common Stock prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor
provision) (other than any transfer pursuant to a registration statement that
has been declared effective under the Securities Act), the undersigned confirms
that such shares of Common Stock are being transferred:


 


·                   ̈  To SL Green Operating
Partnership, L.P., SL Green Realty Corp. 
or a subsidiary of SL Green Operating Partnership, L.P.  or SL Green Realty Corp.; or


 


·                   ̈  Pursuant to and in compliance
with Rule 144 under the Securities Act of 1933, as amended; or


 


·                   ̈  To a person the undersigned
reasonably believes is a qualified institutional buyer that is purchasing for
its own account or for the account of another qualified institutional buyer and
to whom notice is given that the transfer is being made in reliance on Rule 144A,
all in compliance with Rule 144A (if available); or


 


·                   ̈  Pursuant to a Registration
Statement which has been declared effective under the Securities Act of 1933,
as amended, and which continues to be effective at the time of transfer.


 


Unless one of the boxes is checked, the Transfer Agent will refuse to
register any of the shares of Common Stock evidenced by this certificate in the
name of any person other than the registered holder thereof.


 


A-7

















 


[Include Schedule I only for a Global Note]


 


SCHEDULE OF INCREASES OR
DECREASES IN NOTE


 


The initial principal amount of this Global Note is
                       
Dollars ($           ).  The following increases or decreases in part
of this Note have been made:


 


	
  Date

  	
   

  	
  Amount of Increase

  in Principal Amount

  of this Note

  	
   

  	
  Amount of Decrease

  in Principal Amount

  of this Note

  	
   

  	
  Principal Amount of

  this Note following

  such Increase or

  Decrease

  	
   

  	
  Signature of

  Authorized Officer of

  Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-8

















 


EXHIBIT B


 


Form of Certificate to Be


Delivered in Connection with


Transfers to Accredited Investors


 


,        


 


Bank of New York Mellon

101 Barclay Street

Floor 8W

New York, NY 10286

Attention:  Corporate Trust
Administration


 


Re:      SL
Green Operating Partnership, L.P. (the “Issuer”)


3.00% Exchangeable Senior Notes due 2017 (the “Notes”)


 


Ladies and Gentlemen:


 


In connection with our proposed purchase of $                  
aggregate principal amount of the Notes, we confirm that:


 


1.  We
understand that any subsequent transfer of the Notes is subject to certain
restrictions and conditions set forth in the Indenture dated as of October 12,
2010 (the “Indenture”) relating to the Notes and the undersigned agrees
to be bound by, and not to resell, pledge or otherwise transfer the Notes
except in compliance with such restrictions and conditions and the Securities
Act of 1933, as amended (the “Securities Act”).


 


2.  We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence.  We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell any Notes within the time period
referred to in Rule 144(d) or any successor provision of the Notes,
we will do so only (A) to the Issuer, SL Green Realty Corp. or a
subsidiary of the Issuer or of SL Green Realty Corp., (B) in accordance
with Rule 144A under the Securities Act to a “qualified institutional
buyer” (as defined therein), (C) to an “accredited investor” (as defined
in Rule 501(a) of Regulation D under the Securities Act) that, prior
to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Issuer a signed letter substantially in the
form of this letter, or (D) pursuant to the exemption from registration
provided by Rule 144 under the Securities Act (if available), and we
further agree to provide to any person purchasing any of the Notes from us a
notice advising such purchaser that resales of the Notes are restricted as
stated herein.


 


3.  We
understand that, on any proposed resale of any Notes, we will be required to
furnish to you and the Issuer such certifications, legal opinions and other
information as you and the Issuer may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions.


 


B-1

















 


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


 


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


 


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


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [Name of Transferee]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signature

  



 


B-2