Exhibit 4.1


 


 




 





 


iSTAR FINANCIAL INC.


 


5.125% SENIOR NOTES DUE 2011


 












 


INDENTURE


 


Dated as of March 30, 2004


 












 


U.S. BANK TRUST NATIONAL 

ASSOCIATION


 


Trustee


 












 




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture
  Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  11.03

  
	
  (c)

  	
   

  	
  11.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(2)

  	
   

  	
  7.07

  
	
  (c)

  	
   

  	
  7.06;11.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;11.02

  
	
  (c)(1)

  	
   

  	
  11.04

  
	
  (c)(2)

  	
   

  	
  11.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (e)

  	
   

  	
  11.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05,11.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a) (last sentence)

  	
   

  	
  2.09

  
	
  (a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  2.13

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  11.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  11.01

  



 












N.A. means not applicable.


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


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  	
   

  
	
   

  	
   

  
	
  DEFINITIONS AND INCORPORATION BY REFERENCE

  	
   

  
	
   

  	
   

  
	
  Section 1.01. Definitions

  	
   

  
	
  Section 1.02. Other Definitions

  	
   

  
	
  Section 1.03.
  Incorporation by Reference of Trust Indenture Act

  	
   

  
	
  Section 1.04.
  Rules of Construction

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2

  	
   

  
	
   

  	
   

  
	
  THE NOTES

  	
   

  
	
   

  	
   

  
	
  Section 2.01. Form and Dating

  	
   

  
	
  Section 2.02.
  Execution and Authentication

  	
   

  
	
  Section 2.03.
  Registrar and Paying Agent

  	
   

  
	
  Section 2.04.
  Paying Agent to Hold Money in Trust

  	
   

  
	
  Section 2.05.
  Holder Lists

  	
   

  
	
  Section 2.06. Transfer and Exchange

  	
   

  
	
  Section 2.07. Replacement Notes

  	
   

  
	
  Section 2.08. Outstanding Notes

  	
   

  
	
  Section 2.09. Treasury Notes

  	
   

  
	
  Section 2.10. Temporary Notes

  	
   

  
	
  Section 2.11. Cancellation

  	
   

  
	
  Section 2.12. Defaulted Interest

  	
   

  
	
  Section 2.13. Record Date

  	
   

  
	
  Section 2.14. CUSIP Numbers

  	
   

  
	
   

  	
   

  
	
  ARTICLE 3

  	
   

  
	
   

  	
   

  
	
  REDEMPTION AND PREPAYMENT

  	
   

  
	
   

  	
   

  
	
  Section 3.01. Notices to Trustee

  	
   

  
	
  Section 3.02. Selection of Notes to Be
  Redeemed

  	
   

  
	
  Section 3.03. Notice of Redemption

  	
   

  
	
  Section 3.04. Effect of Notice of
  Redemption

  	
   

  
	
  Section 3.05. Deposit of Redemption
  Price

  	
   

  
	
  Section 3.06. Notes Redeemed in Part

  	
   

  
	
  Section 3.07. Optional Redemption

  	
   

  
	
  Section 3.08. Mandatory Redemption

  	
   

  



 


i

















 


	
  ARTICLE 4

  	
   

  
	
   

  	
   

  
	
  COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 4.01. Payment of Notes

  	
   

  
	
  Section 4.02. Maintenance of Office or
  Agency

  	
   

  
	
  Section 4.03. Reports to Holders

  	
   

  
	
  Section 4.04. Compliance Certificate

  	
   

  
	
  Section 4.05. Taxes

  	
   

  
	
  Section 4.06. Stay, Extension and Usury Laws

  	
   

  
	
  Section 4.07.
  Limitation on Restricted Payments

  	
   

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

  	
   

  
	
  Section 4.09.
  Limitation on Incurrence of Additional Indebtedness

  	
   

  
	
  Section 4.10.
  Limitation on Transactions with Affiliates

  	
   

  
	
  Section 4.11.
  Limitation on Liens

  	
   

  
	
  Section 4.12.
  Corporate Existence

  	
   

  
	
  Section 4.13.
  Offer to Repurchase Upon Change of Control

  	
   

  
	
  Section 4.14.
  Limitation on Preferred Stock of Subsidiaries

  	
   

  
	
  Section 4.15.
  Conduct of Business

  	
   

  
	
  Section 4.16.
  Limitation of Guarantees by Subsidiaries

  	
   

  
	
  Section 4.17.
  Maintenance of Total Unencumbered Assets

  	
   

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

  	
   

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

  	
   

  
	
  Section 4.20.
  Registration Rights

  	
   

  
	
  Section 4.21.
  Additional Interest

  	
   

  
	
   

  	
   

  
	
  ARTICLE 5

  	
   

  
	
   

  	
   

  
	
  SUCCESSORS

  	
   

  
	
   

  	
   

  
	
  Section 5.01.
  Merger, Consolidation, or Sale of Assets

  	
   

  
	
  Section 5.02.
  Successor Corporation Substituted

  	
   

  
	
   

  	
   

  
	
  ARTICLE 6

  	
   

  
	
   

  	
   

  
	
  DEFAULTS AND REMEDIES

  	
   

  
	
   

  	
   

  
	
  Section 6.01.
  Events of Default

  	
   

  
	
  Section 6.02.
  Acceleration

  	
   

  
	
  Section 6.03.
  Other Remedies

  	
   

  
	
  Section 6.04.
  Waiver of Past Defaults

  	
   

  



 


ii

















 


	
  Section 6.05.
  Control by Majority

  	
   

  
	
  Section 6.06.
  Limitation on Suits

  	
   

  
	
  Section 6.07. Rights of Holders of Notes to Receive Payment

  	
   

  
	
  Section 6.08.
  Collection Suit by Trustee

  	
   

  
	
  Section 6.09.
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 6.10.
  Priorities

  	
   

  
	
  Section 6.11.
  Undertaking for Costs

  	
   

  
	
   

  	
   

  
	
  ARTICLE 7

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
   

  
	
   

  	
   

  
	
  Section 7.01.
  Duties of Trustee

  	
   

  
	
  Section 7.02.
  Rights of Trustee

  	
   

  
	
  Section 7.03.
  Individual Rights of Trustee

  	
   

  
	
  Section 7.04.
  Trustee’s Disclaimer

  	
   

  
	
  Section 7.05.
  Notice of Defaults

  	
   

  
	
  Section 7.06.
  Reports by Trustee

  	
   

  
	
  Section 7.07.
  Compensation and Indemnity

  	
   

  
	
  Section 7.08.
  Replacement of Trustee

  	
   

  
	
  Section 7.09.
  Successor Trustee by Merger, etc

  	
   

  
	
  Section 7.10.
  Eligibility; Disqualification

  	
   

  
	
  Section 7.11.
  Preferential Collection of Claims

  	
   

  
	
   

  	
   

  
	
  ARTICLE 8

  	
   

  
	
   

  	
   

  
	
  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  
	
   

  	
   

  
	
  Section 8.01.
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  
	
  Section 8.02.
  Legal Defeasance and Discharge

  	
   

  
	
  Section 8.03. Covenant Defeasance

  	
   

  
	
  Section 8.04.
  Conditions to Legal or Covenant Defeasance

  	
   

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

  	
   

  
	
  Section 8.06.
  Repayment to Company

  	
   

  
	
  Section 8.07.
  Reinstatement

  	
   

  
	
   

  	
   

  
	
  ARTICLE 9

  	
   

  
	
   

  	
   

  
	
  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  
	
   

  	
   

  
	
  Section 9.01.
  Without Consent of Holders of Notes

  	
   

  
	
  Section 9.02.
  With Consent of Holders of Notes

  	
   

  



 


iii

















 


	
  Section 9.03.
  Compliance with Trust Indenture Act

  	
   

  
	
  Section 9.04.
  Revocation and Effect of Consents

  	
   

  
	
  Section 9.05.
  Notation on or Exchange of Notes

  	
   

  
	
  Section 9.06.
  Trustee to Sign Amendments, etc

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  	
   

  
	
   

  	
   

  
	
  SATISFACTION AND DISCHARGE

  	
   

  
	
   

  	
   

  
	
  Section 10.01. Satisfaction and Discharge

  	
   

  
	
  Section 10.02. Application of Trust Money

  	
   

  
	
   

  	
   

  
	
  ARTICLE 11

  	
   

  
	
   

  	
   

  
	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 11.01. Trust Indenture Act Controls

  	
   

  
	
  Section 11.02. Notices

  	
   

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

  	
   

  
	
  Section 11.04. Certificate and Opinion as to Conditions
  Precedent

  	
   

  
	
  Section 11.05. Statements Required in Certificate or Opinion

  	
   

  
	
  Section 11.06. Rules by Trustee and Agents

  	
   

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

  	
   

  
	
  Section 11.08. Governing Law

  	
   

  
	
  Section 11.09. No Adverse Interpretation of Other Agreements

  	
   

  
	
  Section 11.10. Successors

  	
   

  
	
  Section 11.11. Severability

  	
   

  
	
  Section 11.12. Counterpart Originals

  	
   

  
	
  Section 11.13. Table of Contents, Headings, etc

  	
   

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  FORM
  OF NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit C

  	
  FORM OF CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit D

  	
  FORM OF CERTIFICATE OF ACQUIRING
  INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  



 


iv

















 


INDENTURE dated as of March 30, 2004
between iStar Financial Inc., a Maryland corporation (the “Company”), and U.S. Bank
Trust National Association, as trustee (the “Trustee”).


 


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


 


ARTICLE 1



DEFINITIONS AND INCORPORATION BY
REFERENCE


 


Section 1.01.  Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Capital Stock” means:


 


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


 


2

















 


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


 


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


 


“Cash Equivalents” means:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


3

















 


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


 


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


 


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


 


“Clearstream” means Clearstream Banking,
S.A.


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


(1)                                  Consolidated
Net Income; and


 


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


 


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


 


(b)                                 Consolidated
Interest Expense; and


 


(c)                                  depreciation
and amortization;


 


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


 


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


 


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


 


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


 


5

















 


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


 


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


 


(1)                                  Consolidated
Interest Expense; plus


 


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


 


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


 


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


 


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


 


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


 


6

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


7

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


8

















 


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


 


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


 


“Exchange Notes” means the 5.125% Senior
Notes due 2011 to be issued in exchange for (1) the Initial Notes pursuant
to the Registration Rights Agreement and (2) the Additional Notes, if any,
issued under Section 2.02 pursuant to a registration rights agreement
substantially similar to the Registration Rights Agreement.


 


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


 


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


 


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


 


“Euroclear” means the Euroclear System.


 


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


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(3)                                  all
Capitalized Lease Obligations of such Person;


 


10

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


“Initial Notes” means the $250.0 million
principal amount of  5.125% Senior Notes due 2011 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 April 1
and October 1 of each year commencing October 1, 2004.


 


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


 


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


 


“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 30, 2004, the
date of original issuance of the Initial Notes.


 


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


 


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


 


12

















 


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


 


“Measurement Date” means August 16,
2001.


 


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


 


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


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(1)                                  Indebtedness
under:  (a) the Initial Notes, (b) the
Company’s $175.0 million aggregate principal amount of Senior Floating Rate
Notes due 2007 issued on March 12, 2004, (c) the Company’s $250.0 million
aggregate principal amount of 5.70% Senior Notes due 2014 issued on
March 9, 2004, (d) the Company’s $350.0 million aggregate principal amount
of 4.875% Senior Notes due 2009 that were issued on January 23, 2004, (e)
the Company’s $350.0 million aggregate principal amount of 6.0% Senior Notes
due 2010 that were issued on December 12, 2003, (f) the Company’s $150.0
million aggregate


 


14

















 


principal amount of 6.5% Senior Notes due
2013 that were issued on December 12, 2003, (g) the Company’s $350.0
million aggregate principal amount of 83/4% Senior Notes
due 2008 that were issued on the Measurement Date and (h) 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;


 


(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


 


15

















 


respect of such Indebtedness, such date shall
be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the Company;


 


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


 


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


 


(10)                            Refinancing
Indebtedness; and


 


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


 


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


 


“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;


 


16

















 


(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;


 


(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.


 


17

















 


“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 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.


 


18

















 


“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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


19

















 


“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.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


20

















 


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


 


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


 


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


 


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


 


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


 


Section 1.02.  Other
Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “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

  



 


21

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
   

  	
   

  	
   

  
	
  “Redemption
  Date”

  	
   

  	
  3.07

  
	
  “Restricted
  Payment”

  	
   

  	
  4.07

  
	
  “Surviving
  Entity”

  	
   

  	
  5.01

  



 


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


 


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


 


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


 


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


 


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


 


(c)                                  “or”
is not exclusive;


 


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


 


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


 


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


 


ARTICLE 2



THE NOTES


 


Section 2.01.  Form and
Dating.


 


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


 


22

















 


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 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.


 


23

















 


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 $250,000,000 (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. 
Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. 
An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.


 


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


 


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


 


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


 


Section 2.04.  Paying
Agent to Hold Money in Trust. 
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Notes, and will notify the
Trustee in writing of any default by the Company in making any such
payment.  While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it
to the Trustee.  The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee.  Upon payment


 


24

















 


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).


 


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:


 


25

















 


(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 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;


 


26

















 


(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 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


 


27

















 


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).


 


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


 


28

















 


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


 


(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;


 


29

















 


(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


 


(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.


 


30

















 


(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;


 


(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,


 


31

















 


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 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


 


32

















 


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.


 


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


 


33

















 


(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 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.


 


34

















 


(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 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


 


35

















 


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 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:


 


36

















 


“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.”


 


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


 


(i)                                     General
Provisions Relating to Transfers and Exchanges.


 


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


 


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


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38

















 


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 redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes shall be deemed to be no longer outstanding and
shall cease to accrue interest.


 


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


 


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


 


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


 


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


 


39

















 


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 redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and any such redemption shall not be affected by any defect in or the
omission of such numbers.  The Company
will promptly notify the Trustee in writing of any change in the CUSIP numbers.


 


ARTICLE 3



REDEMPTION AND PREPAYMENT


 


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


 


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


 


40

















 


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


 


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


 


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


 


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


 


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


 


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


 


(a)                                  the
redemption date;


 


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


 


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


 


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


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


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


 


Section 3.07.  Optional Redemption.  At any time on or prior to April 1,
2011, the Notes may be redeemed or purchased in whole but not in part at the
Company’s option at a price equal to 100% of the principal amount thereof plus
the Applicable Premium as of, and accrued but unpaid interest, if any, to, the
date of redemption or purchase (the “Redemption Date”) (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).


 


42

















 


“Applicable Premium” means, with respect to
a Note at any Redemption Date, the greater of: 
(1) 1.0% of the principal amount of such Note; and (2) the excess
of (a) the present value at such Redemption Date of (i) the principal
amount of such Note on April 1, 2011 plus (ii) all required remaining
scheduled interest payments due on such Note through April 1, 2011,
computed using a discount rate equal to the Treasury Rate plus 50 basis points;
over (b) the principal amount of such Note on such Redemption Date.  Calculation of the Applicable Premium will
be made by the Company or on behalf of the Company by such Person as the
Company shall designate; provided, however, that such
calculation shall not be a duty or obligation of the Trustee.


 


“Treasury Rate” means, with respect to a
Redemption Date, the yield to maturity at the time of computation of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15(519) that has
become publicly available at least two Business Days prior to such Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
such Redemption Date to April 1, 2011; provided, however, that if the period
from such Redemption Date to April 1, 2011 is not equal to the constant
maturity of the United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given, except
that if the period from such Redemption Date to April 1, 2011 is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.


 


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


 


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


 


ARTICLE 4



COVENANTS


 


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


 


The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to the then applicable interest rate on


 


43

















 


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


 


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


 


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


 


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


 


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


 


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


 


44

















 


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 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


 


45

















 


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,
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


 


46

















 


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 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


 


47

















 


(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;


 


(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;


 


48

















 


(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).


 


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 5.0
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


 


49

















 


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 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.


 


50

















 


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;


 


(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;


 


51

















 


(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 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;


 


52

















 


(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 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.


 


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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:


 


(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


 


54

















 


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 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


 


55

















 


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.


 


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


 


56

















 


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;


 


(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


 


57

















 


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;


 


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


 


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


 


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


 


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


 


58

















 


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


 


(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


 


59

















 


(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.


 


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.


 


60

















 


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.


 


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.


 


61

















 


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.


 


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.


 


62

















 


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 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


 


63

















 


(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


 


(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.


 


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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.


 


(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.


 


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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 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.


 


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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.


 


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.


 


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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
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)


 


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


 


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


 


In order to exercise either Legal Defeasance
or Covenant Defeasance:


 


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


 


69

















 


the applicable
redemption date, as the case may be, and any other amounts owing under this
Indenture, if in the case of an optional redemption date prior to electing to
exercise either Legal Defeasance or Covenant Defeasance, the Company has
delivered to the Trustee an irrevocable notice to redeem all of the outstanding
Notes on such redemption date;


 


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


 


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


 


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


 


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


 


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


 


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


 


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(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 (1) have become due and payable or (2) will become due and payable
on the maturity date within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.


 


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


 


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


 


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


 


Section 8.06.  Repayment
to Company.  Any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest on any
Note and remaining unclaimed for two years after such principal, and premium,
if any, or interest has become due and payable shall be paid to the Company on
its written request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter look only to the
Company for payment thereof, and all liability


 


71

















 


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.


 


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;


 


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(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 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,


 


73

















 


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, or change the date on which any Notes may be subject to redemption
or reduce the redemption price therefor;


 


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


 


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


 


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


 


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


 


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


 


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


 


74

















 


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.


 


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


 


75

















 


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
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


 


76

















 


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


 


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.


 


77

















 


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 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.


 


78

















 


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.


 


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


 


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


 


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


 


[Signatures on following page]


 


79

















 


SIGNATURES


 


	
  Dated as of March 30, 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
[                    ]


 


5.125% Senior Notes due 2011


 


	
  No.

  	
   

  	
  $                      

  



 


iSTAR FINANCIAL INC.


 


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


 


Dollars on April 1, 2011.


 


Interest Payment Dates: 
April 1 and October1


 


Record Dates:  March15 and
September 15


 


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]

5.125% Senior Notes due 2011


 


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


 


1.  INTEREST.  iStar Financial Inc., a Maryland corporation
(the “Company”),
promises to pay interest on the principal amount of this Note at 5.125% per
annum from March 30, 2004 until maturity. 
The Company will pay interest semi-annually in arrears on April 1
and October 1 of each year, or if any such day is not a Business Day, on
the next succeeding Business Day (each an “Interest Payment Date”).  Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from March 30, 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 October 1, 2004.  The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. 
Interest will be computed on the basis of a 360-day year of twelve
30-day months.


 


2.  METHOD OF
PAYMENT.  The Company will
pay interest on the Notes (except defaulted interest) to the Persons who are
registered Holders of Notes at the close of business on the March 15 and
September 15 next preceding the Interest Payment Date, even if such Notes
are canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest.  The Notes will be
payable as to principal, premium, if any, and interest at the office or agency
of the Company maintained for such purpose within or without the City and State
of New York, or, at the option of the Company, payment of interest may be made
by check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest, and
premium, if any, on, all Global Notes and all other Notes the Holders of which
shall have provided wire transfer instructions to the Company or the Paying
Agent.  Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.  The Company reserves the right to pay interest to Holders of
Notes by check mailed to such Holders at their registered addresses or by wire
transfer to Holders of at least $5 million aggregate principal amount of Notes.


 


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


 


A-2

















 


4.  INDENTURE.  The Company issued the Notes under an
Indenture dated as of March 30, 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
$250.0 million in aggregate principal amount on the Issue Date and may issue
Additional Notes in accordance with the terms of the Indenture.


 


5.  OPTIONAL
REDEMPTION.


 


At any time on or prior to April 1,
2011, the Notes may be redeemed or purchased in whole but not in part at the
Company’s option at a price equal to 100% of the principal amount thereof plus
the Applicable Premium as of, and accrued but unpaid interest, if any, to, the
date of redemption or purchase (the “Redemption Date”) (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).  Such
redemption or purchase may be made upon notice mailed by first-class mail to
each Holder’s registered address, not less than 30 nor more than 60 days
prior to the Redemption Date.


 


“Applicable Premium” means, with respect to
a Note at any Redemption Date, the greater of: 
(1) 1.0% of the principal amount of such Note; and (2) the excess
of (a) the present value at such Redemption Date of (i) the
redemption price of such Note on April 1, 2011 plus (ii) all required
remaining scheduled interest payments due on such Note through April 1,
2011, computed using a discount rate equal to the Treasury Rate plus 50 basis
points; over (b) the principal amount of such Note on such Redemption
Date.  Calculation of the Applicable
Premium will be made by the Company or on behalf of the Company by such Person
as the Company shall designate; provided, however, that such calculation
shall not be a duty or obligation of the Trustee.


 


“Treasury Rate” means, with respect to a
Redemption Date, the yield to maturity at the time of computation of United
States Treasury securities with a constant maturity (as compiled and published
in the most recent Federal Reserve Statistical Release H.15(519) that has
become publicly available at least two Business Days prior to such Redemption
Date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
such Redemption Date to April 1, 2011; provided, however, that if the period
from such Redemption Date to April 1, 2011 is not equal to the constant
maturity of the United States Treasury security for which a weekly average
yield is given, the Treasury Rate shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given, except
that if the period from such Redemption Date to April 1, 2011 is less than
one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used.


 


A-3

















 


6.  MANDATORY
REDEMPTION.


 


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


 


7.  REPURCHASE
AT OPTION OF HOLDER.


 


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


 


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


 


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


 


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


 


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


 


A-4

















 


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


 


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


 


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


 


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


 


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


 


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


 


A-5

















 


18.  ADDITIONAL
RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to
Holders of Notes under the Indenture, Holders of Restricted Global Notes and
Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement dated as of March 30, 2004, between the
Company and the parties named on the signature pages thereof (the “Registration
Rights Agreement”).


 


A-6

















 


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


 


iStar Financial Inc.


1114 Avenue of the Americas, 27th Floor


New York, NY  10036


Attention:  Investor Relations


 


A-7

















 


ASSIGNMENT FORM


 


To assign this Note, fill in the form below:


 


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

  	
   

  
	
   

  	
  (Insert assignee’s legal name)

  
	
   

  
	
   

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

  
	
   

  
	
   

  
	
   

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

  



 


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


 


	
  Date:  

  	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears

  on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:  

  	
   

  	
   

  
							



 












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


 


A-8

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


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


 


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


 


$                    


 


	
  Date:  

  	
   

  	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
  (Sign exactly as your name appears

  on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:  

  	
   

  	
   

  
								



 












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


 


A-9

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN
THE GLOBAL NOTE


 


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


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease in

  Principal Amount 

  of this Global Note

  	
   

  	
  Amount of

  increase in

  Principal Amount

  of this Global Note

  	
   

  	
  Principal
  Amount

  of this Global Note

  following such de-

  crease

  (or increase)

  	
   

  	
  Signature
  of au-

  thorized officer of

  Trustee or Note

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


A-10

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF TRANSFER


 


iStar Financial Inc.

1114 Avenue of the Americas, 27th Floor

New York, NY  10036


 


[Registrar
address block]


 


Re:                               5.125% Senior Notes
due 2011


 


Reference is hereby made to the Indenture,
dated as of March 30, 2004 (the “Indenture”), between iStar Financial Inc.,
a Maryland corporation, as issuer (the “Company”) and U.S. Bank Trust National
Association, as trustee.  Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.


 


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


 


[CHECK ALL THAT APPLY]


 


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


 


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


 


B-1

















 


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


 


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


 


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


 


or


 


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


 


or


 


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


 


or


 


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


 


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


 


B-3

















 


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:                               5.125% Senior Notes
due 2011


 


(CUSIP
                )


 


Reference is hereby made to the Indenture,
dated as of March 30, 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:


 


 


 


C-1

















 


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:                               5.125%
Senior Notes due 2011


 


Reference is hereby made to the Indenture,
dated as of March 30, 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