Exhibit 4.1


 




 





iSTAR FINANCIAL INC.


 


SENIOR FLOATING RATE NOTES DUE 2007


 












 


INDENTURE


 


Dated as of March 12, 2004


 












 


U.S. BANK TRUST NATIONAL 

ASSOCIATION


 


Trustee




 












 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310

  	
  (a)(1)

  	
   

  	
  7.10

  
	
   

  	
  (a)(2)

  	
   

  	
  7.10

  
	
   

  	
  (a)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(4)

  	
   

  	
  N.A.

  
	
   

  	
  (a)(5)

  	
   

  	
  7.10

  
	
   

  	
  (b)

  	
   

  	
  7.10

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  311

  	
  (a)

  	
   

  	
  7.11

  
	
   

  	
  (b)

  	
   

  	
  7.11

  
	
   

  	
  (c)

  	
   

  	
  N.A.

  
	
  312

  	
  (a)

  	
   

  	
  2.05

  
	
   

  	
  (b)

  	
   

  	
  11.03

  
	
   

  	
  (c)

  	
   

  	
  11.03

  
	
  313

  	
  (a)

  	
   

  	
  7.06

  
	
   

  	
  (b)(2)

  	
   

  	
  7.07

  
	
   

  	
  (c)

  	
   

  	
  7.06;11.02

  
	
   

  	
  (d)

  	
   

  	
  7.06

  
	
  314

  	
  (a)

  	
   

  	
  4.03;11.02

  
	
   

  	
  (c)(1)

  	
   

  	
  11.04

  
	
   

  	
  (c)(2)

  	
   

  	
  11.04

  
	
   

  	
  (c)(3)

  	
   

  	
  N.A.

  
	
   

  	
  (e)

  	
   

  	
  11.05

  
	
   

  	
  (f)

  	
   

  	
  N.A.

  
	
  315

  	
  (a)

  	
   

  	
  7.01

  
	
   

  	
  (b)

  	
   

  	
  7.05,11.02

  
	
   

  	
  (c)

  	
   

  	
  7.01

  
	
   

  	
  (d)

  	
   

  	
  7.01

  
	
   

  	
  (e)

  	
   

  	
  6.11

  
	
  316

  	
  (a) (last
  sentence)

  	
   

  	
  2.09

  
	
   

  	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
   

  	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
   

  	
  (a)(2)

  	
   

  	
  N.A.

  
	
   

  	
  (b)

  	
   

  	
  6.07

  
	
   

  	
  (c)

  	
   

  	
  2.13

  
	
  317

  	
  (a)(1)

  	
   

  	
  6.08

  
	
   

  	
  (a)(2)

  	
   

  	
  6.09

  
	
   

  	
  (b)

  	
   

  	
  2.04

  
	
  318

  	
  (a)

  	
   

  	
  11.01

  
	
   

  	
  (b)

  	
   

  	
  N.A.

  
	
   

  	
  (c)

  	
   

  	
  11.01

  



 


N.A. means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01. Definitions

  	
   

  
	
  Section 1.02. Other Definitions

  	
   

  
	
  Section 1.03. Incorporation by Reference of
  Trust Indenture Act

  	
   

  
	
  Section 1.04. Rules of Construction

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  2

  	
   

  
	
   

  	
   

  
	
  THE
  NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.01. Form and Dating

  	
   

  
	
  Section 2.02. Execution and Authentication

  	
   

  
	
  Section 2.03. Registrar, Paying Agent and
  Calculation Agent

  	
   

  
	
  Section 2.04. Paying Agent To Hold Money in
  Trust

  	
   

  
	
  Section 2.05. Holder Lists

  	
   

  
	
  Section 2.06. Transfer and Exchange

  	
   

  
	
  Section 2.07. Replacement Notes

  	
   

  
	
  Section 2.08. Outstanding Notes

  	
   

  
	
  Section 2.09. Treasury Notes

  	
   

  
	
  Section 2.10. Temporary Notes

  	
   

  
	
  Section 2.11. Cancellation

  	
   

  
	
  Section 2.12. Defaulted Interest

  	
   

  
	
  Section 2.13. Record Date

  	
   

  
	
  Section 2.14. CUSIP Numbers

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  
	
  Section 3.01. Optional Redemption

  	
   

  
	
  Section 3.02. Mandatory Redemption

  	
   

  
	
   

  	
   

  
	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01. Payment of Notes

  	
   

  



 


i

















 


	
  Section 4.02. Maintenance of Office or
  Agency

  	
   

  
	
  Section 4.03. Reports to Holders

  	
   

  
	
  Section 4.04. Compliance Certificate

  	
   

  
	
  Section 4.05. Taxes

  	
   

  
	
  Section 4.06. Stay, Extension and Usury
  Laws

  	
   

  
	
  Section 4.07. Limitation on Restricted
  Payments

  	
   

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

  	
   

  
	
  Section 4.09. Limitation on Incurrence of
  Additional Indebtedness

  	
   

  
	
  Section 4.10. Limitation on Transactions
  with Affiliates

  	
   

  
	
  Section 4.11. Limitation on Liens

  	
   

  
	
  Section 4.12. Corporate Existence

  	
   

  
	
  Section 4.13. Offer To Repurchase Upon
  Change of Control

  	
   

  
	
  Section 4.14. Limitation on Preferred Stock
  of Subsidiaries

  	
   

  
	
  Section 4.15. Conduct of Business

  	
   

  
	
  Section 4.16. Limitation of Guarantees by
  Subsidiaries

  	
   

  
	
  Section 4.17. Maintenance of Total
  Unencumbered Assets

  	
   

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

  	
   

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

  	
   

  
	
  Section 4.20. Registration Rights

  	
   

  
	
  Section 4.21. Additional Interest

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section 5.01. Merger, Consolidation, or
  Sale of Assets

  	
   

  
	
  Section 5.02. Successor Corporation
  Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 6.01. Events of Default

  	
   

  
	
  Section 6.02. Acceleration

  	
   

  
	
  Section 6.03. Other Remedies

  	
   

  
	
  Section 6.04. Waiver of Past Defaults

  	
   

  
	
  Section 6.05. Control by Majority

  	
   

  
	
  Section 6.06. Limitation on Suits

  	
   

  
	
  Section 6.07. Rights of Holders of Notes To
  Receive Payment

  	
   

  
	
  Section 6.08. Collection Suit by Trustee

  	
   

  



 


ii

















 


	
  Section 6.09. Trustee May File Proofs of
  Claim

  	
   

  
	
  Section 6.10. Priorities

  	
   

  
	
  Section 6.11. Undertaking for Costs

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 7.01. Duties of Trustee

  	
   

  
	
  Section 7.02. Rights of Trustee

  	
   

  
	
  Section 7.03. Individual Rights of Trustee

  	
   

  
	
  Section 7.04. Trustee’s Disclaimer

  	
   

  
	
  Section 7.05. Notice of Defaults

  	
   

  
	
  Section 7.06. Reports by Trustee

  	
   

  
	
  Section 7.07. Compensation and Indemnity

  	
   

  
	
  Section 7.08. Replacement of Trustee

  	
   

  
	
  Section 7.09. Successor Trustee by Merger,
  etc

  	
   

  
	
  Section 7.10. Eligibility; Disqualification

  	
   

  
	
  Section 7.11. Preferential Collection of
  Claims

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 8.01. Option To Effect Legal
  Defeasance or Covenant Defeasance

  	
   

  
	
  Section 8.02. Legal Defeasance and
  Discharge

  	
   

  
	
  Section 8.03. Covenant Defeasance

  	
   

  
	
  Section 8.04. Conditions to Legal or
  Covenant Defeasance

  	
   

  
	
  Section 8.05. Deposited Money and
  Government Securities To Be Held in Trust; Other Miscellaneous Provisions

  	
   

  
	
  Section 8.06. Repayment to Company

  	
   

  
	
  Section 8.07. Reinstatement

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  
	
  Section 9.01. Without Consent of Holders of
  Notes

  	
   

  
	
  Section 9.02. With Consent of Holders of
  Notes

  	
   

  
	
  Section 9.03. Compliance with Trust
  Indenture Act

  	
   

  
	
  Section 9.04. Revocation and Effect of
  Consents

  	
   

  
	
  Section 9.05. Notation on or Exchange of
  Notes

  	
   

  
	
  Section 9.06. Trustee To Sign Amendments,
  etc

  	
   

  



 


iii

















 


	
  ARTICLE 10

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 10.01. Satisfaction and Discharge

  	
   

  
	
  Section 10.02. Application of Trust Money

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 11.01. Trust Indenture Act Controls

  	
   

  
	
  Section 11.02. Notices

  	
   

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

  	
   

  
	
  Section 11.04. Certificate and Opinion as
  to Conditions Precedent

  	
   

  
	
  Section 11.05. Statements Required in
  Certificate or Opinion

  	
   

  
	
  Section 11.06. Rules by Trustee and Agents

  	
   

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

  	
   

  
	
  Section 11.08. Governing Law

  	
   

  
	
  Section 11.09. No Adverse Interpretation of
  Other Agreements

  	
   

  
	
  Section 11.10. Successors

  	
   

  
	
  Section 11.11. Severability

  	
   

  
	
  Section 11.12. Counterpart Originals

  	
   

  
	
  Section 11.13. Table of Contents, Headings,
  etc

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit
  A

  	
  FORM
  OF NOTE

  	
   

  
	
  Exhibit
  B

  	
  FORM
  OF CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit
  C

  	
  FORM
  OF CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit
  D

  	
  FORM
  OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  



 


iv

















 


INDENTURE
dated as of March 12, 2004 between iStar Financial Inc., a Maryland
corporation (the “Company”), and U.S. Bank Trust National Association, as
trustee (the “Trustee”).


 


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


 


ARTICLE 1


 


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.01.  Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Business Day”
means any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which commercial banks are authorized or required by law,
regulation or executive order to close in New York City and that is a London
Banking Day.


 


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


 


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


 


2

















 


“Capital
Stock” means:


 


(1)           with
respect to any Person that is a corporation, any and all shares, interests,
participations or other equivalents (however designated and whether or not
voting) of corporate stock, including each class of Common Stock and Preferred
Stock of such Person; and


 


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


 


“Cash
Equivalents” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(1)           any
sale, lease, exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company to any
Person


 


3

















 


or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a “Group”),
together with any Affiliates thereof (whether or not otherwise in compliance
with the provisions of this Indenture) other than to the Permitted Holders;


 


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


 


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


 


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


 


“Clearstream”
means Clearstream Banking, S.A.


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


(1)           Consolidated
Net Income; and


 


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


 


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


 


(b)           Consolidated
Interest Expense; and


 


(c)           depreciation
and amortization;


 


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


 


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


 


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


 


5

















 


(2)           any
asset sales or other dispositions or any asset originations, asset purchases,
Investments and Asset Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of such Person or
one of its Subsidiaries (including any Person who becomes a Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) attributable to the assets which
are originated or purchased, the Investments that are made and the assets that
are the subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or at
any time subsequent to the last day of the Four Quarter Period and on or prior
to the Transaction Date, as if such asset sale or other disposition or asset
origination, asset purchase, Investment or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness)
occurred on the first day of the Four Quarter Period.  If such Person or any of its Subsidiaries directly or indirectly
guarantees Indebtedness of a third Person, the preceding sentence shall give
effect to the incurrence of such guaranteed Indebtedness as if such Person or
any Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness.


 


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


 


(1)           Consolidated
Interest Expense; plus


 


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


 


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


 


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


 


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


 


6

















 


“Consolidated
Net Income” means, with respect to any Person, for any period, the
aggregate net income (or loss) of such Person and its Subsidiaries before the
payment of dividends on Preferred Stock for such period on a consolidated
basis, determined in accordance with GAAP; provided that there shall be excluded
therefrom:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Determination
Date,” with respect to an Interest Period, will be the second London
Banking Day preceding the first day of the Interest Period.


 


“Disqualified
Capital Stock” means that portion of any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event (other than an event which would


 


8

















 


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


 


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


 


“Exchange
Notes” means the Senior Floating Rate Notes due 2007 to be issued in
exchange for (1) the Initial Notes pursuant to the Registration Rights
Agreement and (2) the Additional Notes, if any, issued under Section 2.02
pursuant to a registration rights agreement substantially similar to the Registration
Rights Agreement.


 


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


 


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


 


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


 


“Euroclear”
means the Euroclear System.


 


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


 


9

















 


acting
reasonably and in good faith and shall be evidenced by a Board Resolution of
the Board of Directors of the Company delivered to the Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


(3)           all
Capitalized Lease Obligations of such Person;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


“Initial
Notes” means the $175.0 million principal amount of Senior Floating
Rate Notes due 2007 of the Company issued on the Issue Date.


 


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


 


“Interest
Payment Date” means March 12, June 12, September 12 and
December 12 of each year commencing June 12, 2004.


 


“Interest
Period” means the period commencing on and including an Interest
Payment Date and ending on and including the day immediately preceding the next
succeeding Interest Payment Date, with the exception that the first Interest
Period shall commence on and include March 12, 2004 and end on and include June
11, 2004.


 


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


 


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


 


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


 


“Issue Date”
means March 12, 2004, the date of original issuance of the Initial Notes.


 


12

















 


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


 


“LIBOR,”
with respect to an Interest Period, will be the rate (expressed as a percentage
per annum) for deposits in United States dollars for a three-month period
beginning on the second London Banking Day after the Determination Date that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the
Determination Date.  If Telerate Page
3750 does not include such a rate or is unavailable on a Determination Date,
the Calculation Agent will request the principal London office of each of four
major banks in the London interbank market, as selected by the Calculation
Agent, to provide such bank’s offered quotation (expressed as a percentage per
annum), as of approximately 11:00 a.m., London time, on such Determination
Date, to prime banks in the London interbank market for deposits in a
Representative Amount in United States dollars for a three-month period
beginning on the second London Banking Day after the Determination Date.  If at least two such offered quotations are
so provided, LIBOR for the Interest Period will be the arithmetic mean of such
quotations.  If fewer than two such
quotations are so provided, the Calculation Agent will request each of three
major banks in New York City, as selected by the Calculation Agent, to provide
such bank’s rate (expressed as a percentage per annum), as of approximately
11:00 a.m., New York City time, on such Determination Date, for loans in a
Representative Amount in United States dollars to leading European banks for a
three-month period beginning on the second London Banking Day after the Determination
Date.  If least two such rates are so
provided, LIBOR for the Interest Period will be the arithmetic mean of such
rates.  If fewer than two such rates are
so provided, then LIBOR for the Interest Period will be LIBOR in effect with
respect to the immediately preceding Interest Period.


 


“London
Banking Day” is any day in which dealings in United States dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.


 


“Maturity”
when used with respect to the Notes means the date on which the principal of
the Notes becomes due and payable as therein provided or as provided in this
Indenture, whether at Stated Maturity or pursuant to a Change of Control Offer,
and whether by declaration of acceleration, purchase or otherwise.


 


“Measurement
Date” means August 16, 2001.


 


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


 


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


 


(1)           specifically
advanced to finance the acquisition of investment assets and secured only by
the assets to which such Indebtedness relates without recourse to the Company
or any of its Subsidiaries (other than subject to such customary carve-out
matters


 


13

















 


for which the
Company or its Subsidiaries acts as a guarantor in connection with such
Indebtedness, such as fraud, misappropriation and misapplication, unless, until
and for so long as a claim for payment or performance has been made thereunder
(which has not been satisfied) at which time the obligations with respect to
any such customary carve-out shall not be considered Non-Recourse Indebtedness,
to the extent that such claim is a liability of the Company for GAAP purposes);


 


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


 


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


 


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


 


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


 


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


 


“Officers’
Certificate” means, with respect to any Person, a certificate signed
by two Officers of such Person; provided, however, that every Officers’
Certificate with respect to compliance


 


14

















 


with a
covenant or condition provided for in this Indenture shall include (i) a
statement that the Officers making or giving such Officers’ Certificate have
read such condition and any definitions or other provisions contained in this
Indenture relating thereto and (ii) a statement as to whether, in the opinion
of the signers, such conditions have been complied with.


 


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


 


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


 


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


 


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


 


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


 


(1)           Indebtedness
under:  (a) the Initial Notes,
(b) the Company’s $250.0 million aggregate principal amount of 5.70%
Senior Notes due 2014 that were issued on March 9, 2004, (c) the
Company’s $350.0 million aggregate principal amount of 4.875% Senior Notes due
2009 that were issued on January 23, 2004, (d) the Company’s $350.0
million aggregate principal amount of 6.0% Senior Notes due 2010 that were issued
on December 12, 2003, (e) the Company’s $150.0 million aggregate principal
amount of 6.5% Senior Notes due 2013 that were issued on December 12, 2003,
(f) the Company’s $350.0 million aggregate principal amount of 83⁄4% Senior
Notes due 2008 that were issued on the Measurement Date and (g) the $185.0
million aggregate principal amount of 7.0% Senior Notes due 2008 that were issued
in March and April of 2003;


 


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


 


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


 


15

















 


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


 


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


 


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


 


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


 


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


 


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


 


(10)         Refinancing
Indebtedness; and


 


(11)         additional
Indebtedness of the Company and its Subsidiaries in an aggregate principal
amount not to exceed $15.0 million at any one time outstanding (which


 


16

















 


amount may,
but need not, be incurred in whole or in part under the Existing Credit
Agreements).


 


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


 


“Permitted
Liens” means the following types of Liens:


 


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


 


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


 


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


 


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


 


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


 


17

















 


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


 


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


 


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


 


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


 


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


 


(11)         Liens
securing Indebtedness under Currency Agreements.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Refinancing
Indebtedness” means any Refinancing by the Company or any Subsidiary
of the Company of Indebtedness incurred in accordance with Section 4.09
hereof (other than


 


18

















 


pursuant to
clauses (2), (4), (5), (6), (7), (8), (9) or (11) of the definition
of Permitted Indebtedness), in each case that does not:


 


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


 


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


 


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


 


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


 


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


 


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


 


“REIT”
means Real Estate Investment Trust.


 


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


 


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


 


19

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Subordinated
Indebtedness” means all of the Company’s and its Subsidiaries’
Indebtedness that expressly provides that such Indebtedness shall be
subordinated in right of payment to any other Indebtedness and matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, or
is redeemable at the sole option of the holder thereof (except, in each case,
upon the occurrence of a Change of Control) on or after the final maturity date
of the Notes.


 


20

















 


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


 


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


 


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


 


“Telerate
Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


21

















 


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


 


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


 


Section 1.02.  Other Definitions.


 




	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Affiliate
  Transaction”

  	
   

  	
  4.10

  
	
  “Authentication
  Order”

  	
   

  	
  2.02

  
	
  “Change of
  Control Date”

  	
   

  	
  4.13

  
	
  “Change of
  Control Payment Date”

  	
   

  	
  4.13

  
	
  “Change of
  Control Offer”

  	
   

  	
  4.13

  
	
  “Change of
  Control Purchase Date”

  	
   

  	
  4.13

  
	
  “Change of
  Control Purchase Price”

  	
   

  	
  4.13

  
	
  “Covenant
  Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  
	
  “Event of
  Default”

  	
   

  	
  6.01

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Legal
  Defeasance”

  	
   

  	
  8.02

  
	
  “Paying
  Agent”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted
  Payment”

  	
   

  	
  4.07

  
	
  “Surviving
  Entity”

  	
   

  	
  5.01

  






 


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


 


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


 


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


 


22

















 


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


 


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


 


(c)           “or” is not exclusive;


 


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


 


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


 


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


 


ARTICLE 2


 


THE NOTES


 


Section 2.01.  Form and Dating.


 


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


 


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


 


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


 


23

















 


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


 


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


 


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


 


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


 


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


 


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


 


The Trustee
shall, upon a written order of the Company signed by one or more Officers (an “Authentication
Order”), authenticate Notes for original issue on the Issue Date in
aggregate principal amount not to exceed $175,000,000 (other than as provided
in Section 2.07).  The Trustee shall
authenticate Additional Notes thereafter (so long as permitted by the terms of
this Indenture) for original issue upon one or more Authentication Orders in
aggregate principal amount as specified in such order (other than as provided
in Section 2.07).  Each such
Authentication Order shall specify the amount of Notes to be authenticated,
whether the Notes are to be Initial Notes, Additional Notes or Exchange Notes
and whether the Notes are to be issued as Definitive Notes or Global Notes or
such other information as the Trustee shall reasonably request.


 


The Trustee
may appoint an authenticating agent acceptable to the Company to authenticate
Notes.  An authenticating agent may
authenticate Notes whenever the Trustee may do so.


 


24

















 


Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent.  An authenticating agent has
the same rights as an Agent to deal with Holders or an Affiliate of the Company.


 


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


 


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


 


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


 


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


 


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


 


25

















 


Section 2.06.  Transfer and Exchange.


 


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


 


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


 


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


 


(ii)           All Other
Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers
and exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must deliver to
the Registrar either (A) (1) a written order from a Participant or an Indirect
Participant


 


26

















 


given to the
Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another
Global Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing
information regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.  Upon consummation of an Exchange Offer by
the Company in accordance with Section 2.06(f) hereof, the requirements of this
Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal delivered
by the holder of such beneficial interests in the Restricted Global Notes.  Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
this Indenture and the Notes or otherwise applicable under the Securities Act,
the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.06(h) hereof.


 


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


 


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


 


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


 


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


 


(iv)          Transfer and
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.  A beneficial interest in any Restricted Global Note may be
exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Note or transferred to a Person who takes delivery thereof in the


 


27

















 


form of a
beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(ii) above and:


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


29

















 


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


 


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


 


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


 


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


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


30

















 


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


 


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


 


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


 


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


 


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


 


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


 


31

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the


 


32

















 


case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


33

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(A)          such
exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person participating


 


34

















 


in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


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


 


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


 


(D)          the
Registrar receives the following:


 


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


 


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


 


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


 


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


 


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


 


35

















 


in an aggregate principal amount equal to the
principal amount of the Restricted Definitive Notes accepted for exchange in
the Exchange Offer.  Concurrently with
the issuance of such Notes, the Trustee shall cause the aggregate principal
amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.


 


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


 


(i)            Private
Placement Legend.


 


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


 


“THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH BELOW.  BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
“ACCREDITED INVESTOR”), (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A
U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS
SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT TO THE


 


36

















 


EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS), OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.  IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.  AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES”
AND “U.S. PERSON” HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.”


 


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


 


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


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV)
THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR
WRITTEN CONSENT OF THE COMPANY.”


 


37

















 


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


 


(i)            General
Provisions Relating to Transfers and Exchanges.


 


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


 


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


 


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


 


(iv)          The
Company shall not be required to register the transfer of or to exchange a Note
between a record date and the next succeeding Interest Payment Date.


 


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


 


38

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


39

















 


direction, waiver or consent,
only Notes that the Trustee actually knows are so owned shall be so disregarded.


 


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


 


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


 


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


 


Section 2.12.  Defaulted Interest.  If the Company defaults in a payment of
interest on the Notes, it shall pay the defaulted interest in any lawful manner
plus, to the extent lawful, interest payable on the defaulted interest, to the
Persons who are Holders on a subsequent special record date, in each case at
the rate provided in the Notes and in Section 4.01 hereof.  The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. 
The Company shall fix or cause to be fixed each such special record date
and payment date; provided that no such special record date shall be less than
10 days prior to the related payment date for such defaulted interest.  At least 15 days before the special record
date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.


 


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


 


Section 2.14.  CUSIP Numbers.  The Company in issuing the Notes may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use
CUSIP numbers in notices of purchase as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a purchase and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such purchase shall not be
affected by any defect in or the


 


40

















 


omission of such numbers.  The Company will promptly notify the Trustee
in writing of any change in the CUSIP numbers.


 


ARTICLE 3


 


REDEMPTION AND PREPAYMENT


 


Section 3.01.  Optional Redemption.  The Notes are not optionally
redeemable prior to their Maturity.


 


Section 3.02.  Mandatory Redemption.  The Company shall not be required to make
mandatory redemption payments with respect to the Notes prior to Maturity.


 


ARTICLE 4


 


COVENANTS


 


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


 


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


 


Section 4.02.  Maintenance of Office or
Agency.  The Company shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
(which may be an office of the Trustee or an affiliate of the Trustee,
Registrar or co-registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company
in respect of the Notes and this Indenture may be served.  The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency.  If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.


 


41

















 


The Company
may also from time to time designate one or more other offices or agencies
where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
the City of New York for such purposes. 
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office
or agency.


 


The Company
hereby designates the Corporate Trust Office of the Trustee as one such office
or agency of the Company in accordance with Section 2.03.


 


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


 


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


 


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


 


In addition,
whether or not required by the rules and regulations of the Commission, the
Company shall file a copy of all such information and reports with the
Commission for public availability within the time periods specified in the
Commission’s rules and regulations (unless the Commission will not accept such
a filing) and make such information available to securities analysts and
prospective investors upon request.  In
addition, the Company has agreed that, for so long as any Notes remain
outstanding, it will furnish to the Holders and to securities analysts and
prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.


 


Section 4.04.  Compliance Certificate.  (a) 
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, an Officers’ Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled
their obligations under this Indenture, and further


 


42

















 


stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.


 


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


 


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


 


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


 


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


 


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


 


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


 


(3)           make
any principal payment on, purchase, defease, redeem, prepay, decrease or
otherwise acquire or retire for value, prior to any scheduled final maturity,


 


43

















 


scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company
that is subordinate or junior in right of payment to the Notes


 


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


 


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


 


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


 


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


 


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


 


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


 


(y)           without duplication of
any amounts included in clause (iii)(x) above, 100% of the aggregate net
cash proceeds of any equity contribution received by the Company from a holder
of the Company’s Capital Stock.


 


The foregoing
provisions do not prohibit:


 


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


 


(2)           if
no Default or Event of Default shall have occurred and be continuing, the
acquisition of any shares of Capital Stock of the Company, either
(i) solely in exchange


 


44

















 


for shares of
Qualified Capital Stock of the Company or (ii) through the application of
net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


45

















 


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


 


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


 


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


 


(a)           applicable
law;


 


(b)           this Indenture;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


46

















 


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


 


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


 


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


 


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


 


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


 


Notwithstanding
the foregoing, the Company shall not permit TriNet Corporate Realty
Trust, Inc. (“TriNet”) or any of its Subsidiaries to
incur Indebtedness (as defined in the indenture governing TriNet’s outstanding
publicly-held debt securities on the Measurement Date) if, immediately after
giving effect to the incurrence of such Indebtedness and the application of the
proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of TriNet and its Subsidiaries on a consolidated basis determined
in accordance with GAAP is greater than 55% of the sum of (without
duplication):  (1) the Total Assets
(as defined in the indenture governing TriNet’s outstanding publicly-held debt
securities on the Measurement Date) of TriNet and its Subsidiaries as of the
end of the calendar quarter covered in TriNet’s Annual Report on Form 10-K
or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange
Act, with the Trustee) prior to the incurrence of such additional Indebtedness;
and (2) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by TriNet or any
Subsidiary of TriNet since the end of such calendar quarter, including those
proceeds obtained in connection with the incurrence of such additional
Indebtedness.  The above limitation
shall terminate immediately upon TriNet ceasing to exist as a Subsidiary of the
Company as a result of a merger or consolidation of TriNet 


 


47

















 


with the
Company or the sale, transfer, disposition or distribution of all or
substantially all of TriNet’s assets to the Company.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


48

















 


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


 


(6)           Restricted
Payments permitted by Section 4.07.


 


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


 


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


 


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


 


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


 


(b)           Liens
securing the Notes;


 


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


 


(d)           Permitted
Liens.


 


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


 


49

















 


Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(vii)         that
a Holder will be entitled to withdraw its election if the Company receives, not
later than the third Business Day preceding the Change of Control Payment Date,
a telegram, telex, facsimile transmission or letter setting forth the name of
such


 


50

















 


Holder, the
principal amount of Notes such Holder delivered for purchase, and a statement
that such Holder is withdrawing its election to have such Note purchased; and


 


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


 


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


 


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


 


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


 


Section 4.15.  Conduct of Business.  The Company and its Subsidiaries shall
engage primarily in the financing and real-estate related businesses contemplated
by Article III(b) of the Company’s Amended and Restated Charter as in
effect on the Measurement Date and other activities related to or arising out
of those activities.


 


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


 


51

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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the ordinary course of
business, (ii) in the reasonable and good faith judgment of the Board of
Directors or management of the Company or the Subsidiary concerned, as the case
may be, desirable in the conduct of the business of the Company or such
Subsidiary, as the case may be, or (iii) otherwise permitted by this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE 5


 


SUCCESSORS


 


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


 


(1)           either:


 


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


 


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


 


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


 


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


 


(2)           immediately
after giving effect to such transaction and the assumption contemplated by
clause (1)(b)(ii) above (including giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred in connection with
or in respect of such transaction), the Company or such Surviving Entity, as
the case may be:  (a) shall have a
Consolidated Net Worth equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction; and (b) shall be able
to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.09 hereof; provided, however,
that this clause (2) shall not apply in the event of a transaction between
the Company and TriNet;


 


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


 


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


 


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


 


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


 


ARTICLE 6


 


DEFAULTS AND REMEDIES


 


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


 


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


 


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


 


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


 


(4)           the
failure to pay at final maturity (giving effect to any applicable grace periods
and any extensions thereof) the principal amount of any Indebtedness (other
than Non-Recourse Indebtedness) of the Company or any Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 20 days of receipt by the Company or such Subsidiary of notice of
any such acceleration) if the aggregate principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in default
for failure to pay principal at final maturity or which has been accelerated,
aggregates $20.0 million or more at any time;


 


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


 


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


 


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


 


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


 


56

















 


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


 


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


 


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


 


(d)           the
Company or any Significant Subsidiary:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.04.  Waiver of Past Defaults.  Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes by notice in writing
to the Trustee may on behalf of the Holders of all of the Notes waive an
existing Default or Event of Default and its consequences hereunder, except a
continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on, the Notes (including in connection with a
Change of Control Offer or other offer to purchase) (provided, however,
that the Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration).  Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 6.11.  Undertaking for Costs.  In any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking


 


60

















 


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


 


ARTICLE 7


 


TRUSTEE


 


Section 7.01.  Duties of Trustee.  (a)  If an Event of Default has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and use the same degree of care and
skill in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person’s own affairs.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(g)           The Trustee shall not
be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of not less than a
majority in principal amount of the Notes at the time outstanding given
pursuant to Section 6.05 of this Indenture, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 7.07.  Compensation and Indemnity.  The Company shall pay to the Trustee from
time to time reasonable compensation for its services.  The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust.  The Company shall reimburse


 


63

















 


the Trustee upon request for
all reasonable out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services.  Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee’s agents,
counsel, accountants and experts.


 


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


 


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


 


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


 


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


 


Section 7.08.  Replacement of Trustee.  The Trustee may resign at any time by so
notifying the Company.  The Holders of a
majority in aggregate principal amount of the then outstanding Notes may remove
the Trustee by so notifying the Trustee and the Company and may appoint a
successor Trustee.  The Company may remove
the Trustee if:


 


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


 


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


 


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


 


(d)           the Trustee becomes incapable of acting.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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deemed for this paragraph to be its combined capital and surplus.  The Trustee will comply with TIA
§ 310(b).


 


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


 


ARTICLE 8




LEGAL
DEFEASANCE AND COVENANT DEFEASANCE


 


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


 


Section 8.02.  Legal Defeasance and Discharge.  Upon the Company’s exercise under
Section 8.01 hereof of the option applicable to this Section 8.02,
the Company shall, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all outstanding Notes on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to be “outstanding” only for the purposes of Section 8.05 hereof
and the other Sections of this Indenture referred to in (a) and (b) below, and
to have satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on written demand of and at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged
hereunder:  (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes
when such payments are due, (b) the Company’s obligations with respect to such
Notes under Article 2 and Section 4.02 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the
Company’s obligations in connection therewith and (d) this Article 8.  Subject to compliance with this
Article 8, the Company may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.


 


Section 8.03.  Covenant Defeasance. 
Upon the Company’s exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be
released from its obligations under the covenants contained in Sections 4.07,
4.08, 4.09, 4.10, 4.11, 4.14, 4.15, 4.16, 4.17, 4.18 hereof and clause (2)
of Section 5.01 hereof with respect to the outstanding Notes on and after
the date


 


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


 


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


 


In order to exercise either Legal Defeasance or Covenant Defeasance:


 


(a)           the Company must
irrevocably deposit with the Trustee, in trust, for the benefit of the Holders,
cash in United States dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on the outstanding Notes on the
stated date for payment thereof and any other amounts owing under this
Indenture;


 


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


 


(c)           in the case of an
election under Section 8.03 hereof, the Company shall have delivered to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that the Holders of the outstanding Notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant


 


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Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;


 


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


 


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


 


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


 


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


 


(h)           the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that, assuming no
intervening bankruptcy of the Company between the date of deposit and the 91st
day following the date of deposit and that no Holder is an insider of the
Company, after the 91st day following the date of deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally.


 


Notwithstanding the foregoing, the opinion of counsel required by
clause (b) above with respect to Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation have become due
and payable.


 


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


 


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


 


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


 


Section 8.06.  Repayment to Company. 
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its written request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease;
provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in the
New York Times and The Wall
Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.


 


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


 


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ARTICLE 9




AMENDMENT, SUPPLEMENT AND WAIVER


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 9.02.  With Consent of Holders of Notes.  Except as provided below in this
Section 9.02, the Company and the Trustee may amend or supplement this
Indenture (including Section 4.13 hereof), and the Notes with the written
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the Notes),
and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or


 


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Event of Default in the payment of the principal of, premium, if any,
or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the written consent of the Holders of
a majority in principal amount of the then outstanding Notes voting as a single
class (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).


 


Upon the written request of the Company accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture directly
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.


 


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


 


After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver.  Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amended or supplemental Indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive in writing compliance in a
particular instance by the Company with any provision of this Indenture or the Notes.  However, without the written consent of each
Holder affected, an amendment or waiver under this Section 9.02 may not
(with respect to any Notes held by a non-consenting Holder):


 


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


 


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


 


(c)           reduce the principal of
or change or have the effect of changing the fixed maturity of any Notes;


 


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


 


(e)           make any change in
provisions of this Indenture protecting the right of each Holder to receive
payment of principal of and interest on such Note on or after the


 


71

















 


due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of Notes
to waive Defaults or Events of Default;


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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ARTICLE 10




SATISFACTION AND DISCHARGE


 


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


 


(a)           either:


 


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


 


(ii)           all Notes not
theretofore delivered to the Trustee for cancellation have become due and
payable and the Company has irrevocably deposited or caused to be deposited
with the Trustee funds in an amount sufficient to pay and discharge the entire
Indebtedness on the Notes not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the Notes to
the date of deposit together with irrevocable instructions from the Company
directing the Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;


 


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


 


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


 


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


 


If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting


 


73

















 


such application, the Company’s obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 10.01; provided that if the Company has made any
payment of principal of, premium, if any, or interest on any Notes because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.


 


ARTICLE 11


 


MISCELLANEOUS


 


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


 


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


 


If to the Company:



iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036

Facsimile:  (212) 930-9494

Attention:  Chief Executive Officer


 


With a copy to:



Clifford Chance US LLP

200 Park Avenue, 52nd Floor

New York, NY  10166-0153

Facsimile:  (212) 878-8375

Attention:  Kathleen L. Werner, Esq.


 


If to the Trustee:



U.S. Bank Trust National Association

100 Wall Street, 19th Floor

New York, NY 10005

Attention:  Angelita Pena, Corporate
Trust Department


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 11.05.  Statements Required in Certificate or
Opinion.  Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other


 


75

















 


than a certificate provided pursuant to TIA § 314(a)(4)) shall
comply with the provisions of TIA § 314(e) and shall include:


 


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


 


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


 


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


 


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


 


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


 


Section 11.07.  No Personal Liability of Directors,
Officers, Employees and Stockholders.  No past, present or future
director, officer, employee, incorporator or stockholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Notes, this Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. 
Each Holder by accepting a Note waives and releases all such
liability.  The waiver and release are
part of the consideration for issuance of the Notes.


 


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


 


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


 


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


 


76

















 


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


 


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


 


Section 11.13.  Table of Contents, Headings, etc.  The Table of Contents, Cross-Reference Table
and Headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.


 


[Signatures on following page]


 


77

















 


SIGNATURES


 


Dated as of March 12, 2004


 


	
   

  	
  iSTAR FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK TRUST NATIONAL ASSOCIATION,

  not in its individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT A


 


[Face of Note]


 


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


 


CUSIP/CINS
[                    ]


 


Senior Floating Rate Notes due 2007


 


	
  No.          

  	
   

  	
  $                    

  



 


iSTAR FINANCIAL INC.


 


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


 


Dollars on March 12, 2007.


 


Interest Payment Dates: 
March 12, June 12, September 12 and December 12


 


Record Dates:  March 1,
June 1, September 1 and December 1


 


Dated: 
[                    ]


 


	
   

  	
  iSTAR FINANCIAL INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SEAL


 


This is one of the Notes referred to

in the within-mentioned Indenture:


 


U.S. BANK TRUST NATIONAL ASSOCIATION

as Trustee


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  



 

















 


[Back of Note]

Senior Floating Rate Notes due 2007


 


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


 


1.             INTEREST. 
iStar Financial Inc., a Maryland corporation (the “Company”), promises to pay
interest on the principal amount of this Note quarterly in arrears on
March 12, June 12, September 12 and December 12 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an “Interest Payment Date”), at the rate per annum, reset
quarterly, equal to three month LIBOR (as defined below) plus 1.25%.  Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from March 12, 2004; provided that if there is no existing
Default in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided,
further,
that the first Interest Payment Date shall be June 12, 2004.  The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. 
Interest on the Notes will be computed on the basis of the actual number
of days in the applicable Interest Period divided by 360, as further described
below.


 


“LIBOR,”
with respect to an Interest Period, will be the rate (expressed as a percentage
per annum) for deposits in United States dollars for a three-month period
beginning on the second London Banking Day after the Determination Date that
appears on Telerate Page 3750 as of 11:00 a.m., London time, on the Determination
Date.  If Telerate Page 3750 does not
include such a rate or is unavailable on a Determination Date, the Calculation
Agent will request the principal London office of each of four major banks in
the London interbank market, as selected by the Calculation Agent, to provide
such bank’s offered quotation (expressed as a percentage per annum), as of
approximately 11:00 a.m., London time, on such Determination Date, to prime
banks in the London interbank market for deposits in a Representative Amount in
United States dollars for a three-month period beginning on the second London
Banking Day after the Determination Date. 
If at least two such offered quotations are so provided, LIBOR for the
Interest Period will be the arithmetic mean of such quotations.  If fewer than two such quotations are so
provided, the Calculation Agent will request each of three major banks in New
York City, as selected by the Calculation Agent, to provide such bank’s rate
(expressed as a percentage per annum), as of approximately 11:00 a.m., New York
City time, on such Determination Date, for loans in a Representative Amount in
United States dollars to leading European banks for a three-month period
beginning on the second London Banking Day after the Determination Date. If at least
two such rates are so provided, LIBOR for the Interest Period will be the
arithmetic mean of such rates.  If fewer
than two such rates are so provided, then LIBOR for the Interest Period will be
LIBOR in effect with respect to the immediately preceding Interest Period.


 


A-2

















 


“Interest
Period” means the period commencing on and including an Interest
Payment Date and ending on and including the day immediately preceding the next
succeeding interest Payment Date, with the exception that the first Interest
Period shall commence on and include March 12, 2004 and end on and include
June 11, 2004.


 


“Determination
Date,”‘ with respect to an Interest Period, will be the second
London Banking Day preceding the first day of the Interest Period.


 


“London
Banking Day” is any day in which dealings in United States dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.


 


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


 


“Telerate
Page 3750” means the display designated as “Page 3750” on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service).


 


The amount of interest for each day that the Notes are outstanding (the
“Daily
Interest Amount”) will be calculated by dividing the interest rate
in effect for such day by 360 and multiplying the result by the principal
amount of the Notes. The amount of interest to be paid on the Notes for each
Interest Period will be calculated by adding the Daily Interest Amounts for
each day in the Interest Period.


 


All percentages resulting from any of the above calculations will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point being rounded upwards (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all
dollar amounts used in or resulting from such calculations will be rounded to
the nearest cent (with one-half cent being rounded upwards).


 


The interest rate on the Notes will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.


 


The Calculation Agent will, upon the request of the holder of any Note,
provide the interest rate then in effect with respect to the Notes. All
calculations made by the Calculation Agent in the absence of manifest error will
be conclusive for all purposes and binding on the Company and the holders of
the Notes.


 


2.             METHOD OF PAYMENT.  The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the March 1, June 1, September 1 and
December 1 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest.  The Notes will be
payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest may be made
by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of


 


A-3

















 


immediately available funds will be required with respect to principal
of and interest, and premium, if any, on, all Global Notes and all other Notes
the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent.  Such
payment shall be in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private
debts.  The Company reserves the right
to pay interest to Holders of Notes by check mailed to such Holders at their
registered addresses or by wire transfer to Holders of at least $5 million
aggregate principal amount of Notes.


 


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


 


4.             INDENTURE.  The Company issued the Notes under an Indenture dated as of
March 12, 2004 (the “Indenture”) between the Company and the
Trustee.  The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).  The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms.  To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.  The Notes are obligations of the
Company.  The Company is issuing
$175.0 million in aggregate principal amount on the Issue Date and may
issue Additional Notes in accordance with the terms of the Indenture.


 


5.             OPTIONAL REDEMPTION.  The Notes may not be redeemed prior to Maturity.


 


6.             MANDATORY REDEMPTION.


 


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


 


7.             REPURCHASE AT OPTION OF HOLDER.


 


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


 


8.             DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without
coupons in denominations of $1,000 and integral multiples of $1,000.  The transfer of Notes may be registered and
Notes may be exchanged as provided in the Indenture.  The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company and the Trustee may require a Holder to pay any taxes and fees required
by law or permitted by the Indenture. 
The Company need not exchange or register the transfer of any Notes
during the period between a record date and the corresponding Interest Payment
Date.


 


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


 


A-4

















 


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


 


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


 


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


 


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


 


A-5

















 


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


 


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


 


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


 


17.           ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL
NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes
shall have all the rights set forth in the Registration Rights Agreement dated
as of March 12, 2004, between the Company and the parties named on the
signature pages thereof (the “Registration Rights Agreement”).


 


A-6

















 


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


 


iStar Financial Inc.


1114 Avenue of the Americas, 27th Floor


New York, NY  10036


Attention:  Investor Relations


 


A-7

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


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

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

  
	
   

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

  



 


 


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


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the
  face of this Note)

  



 


	
  Signature Guarantee*:

  	
   

  	
   

  



 












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


 


A-8

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


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


 


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


 


$                    


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Your Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears on the
  face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Identification No.: 

  	
   

  
						



 


	
  Signature Guarantee*:

  	
   

  	
   

  



 












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


 


A-9

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL NOTE


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount 

  of this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount 

  of this Global Note

  	
   

  	
  Principal
  Amount

  of this Global Note

  following such

  decrease

  (or increase)

  	
   

  	
  Signature
  of

  authorized officer of

  Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:          Senior Floating Rate Notes due 2007


 


Reference is hereby made to the Indenture, dated as of March 12,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


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


 


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


 


B-1

















 


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


 


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


 


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


 


or


 


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


 


or


 


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


 


or


 


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


 


B-2

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


	
   

  	
  [Insert Name of Transferor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


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


 


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


 


(a)  o  a beneficial interest in the:


 


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


 


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


 


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


 


(b)  o  a Restricted Definitive Note.


 


2.             After
the Transfer the Transferee will hold:


 


[CHECK ONE]


 


(a)  o  a beneficial interest in the:


 


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


 


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


 


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


 


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


 


(b)  o  a Restricted Definitive Note; or


 


(c)  o  an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-5

















 


EXHIBIT C


 


FORM OF CERTIFICATE OF EXCHANGE


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:          Senior Floating Rate Notes due 2007


 


(CUSIP                 )


 


Reference is hereby made to the Indenture, dated as of March 12,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.


 


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


 


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


 


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


 


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


 


C-1

















 


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


 


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


 


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


 


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


 


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


 


C-2

















 


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


 


C-3

















 


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


 


	
   

  	
  [Insert Name of Owner]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-4

















 


ANNEX A TO CERTIFICATE OF EXCHANGE


 


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


 


[CHECK ONE]


 


(a)           o            a beneficial interest
in the:


 


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


 


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


 


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


 


(b)           o            a Restricted
Definitive Note.


 


2.             After
the exchange the Owner will hold:


 


[CHECK ONE]


 


(a)           a
beneficial interest in the:


 


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


 


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


 


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


 


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


 


(b)           o            a Restricted
Definitive Note; or


 


(c)           o            an Unrestricted
Definitive Note.


 


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


 


 


and sent to the Owner at the following address:


 


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EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:          Senior
Floating Rate Notes due 2007


 


Reference is hereby made to the Indenture, dated as of March 12,
2004 (the “Indenture”),
between iStar Financial Inc., a Maryland corporation, as issuer (the “Company”)
and U.S. Bank Trust National Association, as trustee.  Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


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


 


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


 


(b)  o  a Definitive Note,


 


we confirm that:


 


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


 


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


 


D-1

















 


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


 


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


 


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


 


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


 


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


 


	
   

  	
  [Insert Name of Accredited Investor]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


D-2