8.0% SECOND-PRIORITY SENIOR SECURED GUARANTEED NOTES DUE 2011

 

 

CROSS-REFERENCE TABLE*

 

Trust Indenture Act Section		Indenture Sections
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)		13.03
(c)		13.03
313(a)		7.06
(b)(2)		7.07
(c)		7.06;13.02
(d)		7.06
314(a)		4.03;13.02
(c)(1)		13.04
(c)(2)		13.04
(c)(3)		N.A.
(e)		13.05
(f)		N.A.
315(a)		7.01
(b)		7.05,13.02
(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)		13.01
(b)		N.A.
(c)		13.01

 

N.A. means not applicable.

*              This cross-reference table is not part of the Indenture.

 

 

TABLE OF CONTENTS

 

			Page
ARTICLE I	DEFINITIONS AND INCORPORATION BY REFERENCE		1
Section 1.01.		Definitions	1
Section 1.02.		Other Definitions	22
Section 1.03.		Incorporation by Reference of Trust Indenture Act	22
Section 1.04.		Rules of Construction	22
ARTICLE II	THE NOTES		23
Section 2.01.		Form and Dating.	23
Section 2.02.		Execution and Authentication	24
Section 2.03.		Registrar and Paying Agent	24
Section 2.04.		Paying Agent To Hold Money in Trust	24
Section 2.05.		Holder Lists	25
Section 2.06.		Transfer and Exchange.	25
Section 2.07.		Replacement Notes	38
Section 2.08.		Outstanding Notes	38
Section 2.09.		Treasury Notes	38
Section 2.10.		Temporary Notes	38
Section 2.11.		Cancellation	39
Section 2.12.		Defaulted Interest	39
Section 2.13.		Record Date	39
Section 2.14.		CUSIP Numbers	39
ARTICLE III	REDEMPTION		39
Section 3.01.		Notices to Trustee	39
Section 3.02.		Selection of Notes to Be Redeemed	40
Section 3.03.		Notice of Redemption	40
Section 3.04.		Effect of Notice of Redemption	40
Section 3.05.		Deposit of Redemption Price	41
Section 3.06.		Notes Redeemed in Part	41
Section 3.07.		Optional Redemption	41
Section 3.08.		Mandatory Redemption	41
ARTICLE IV	COVENANTS		41
Section 4.01.		Payment of Notes	41
Section 4.02.		Maintenance of Office or Agency	42
Section 4.03.		Reports to Holders	42
Section 4.04.		Compliance Certificate.	43

 

i

 

TABLE OF CONTENTS

(continued)

 

			Page
Section 4.05.		Taxes	43
Section 4.06.		Stay, Extension and Usury Laws	43
Section 4.07.		Limitation on Incurrence of Additional Indebtedness	43
Section 4.08.		Corporate Existence	44
Section 4.09.		Maintenance of Total Unencumbered Assets	44
Section 4.10.		Offer to Repurchase Upon Change of Control Triggering Event	44
Section 4.11.		Coverage Test	45
Section 4.12.		Limitation on Indebtedness of Guarantors and Pledged Entities	46
Section 4.13.		Limitation on Liens.	46
Section 4.14.		Suspension of Certain Covenants if Certain Ratings are Assigned	47
Section 4.15.		Maintenance of Properties; Books and Records; Compliance with Law	47
Section 4.16.		Registration Rights	48
Section 4.17.		Additional Interest	48
ARTICLE V	SUCCESSORS		48
Section 5.01.		Merger, Consolidation, or Sale of Assets	48
Section 5.02.		Successor Corporation Substituted	49
ARTICLE VI	DEFAULTS AND REMEDIES		50
Section 6.01.		Events of Default	50
Section 6.02.		Acceleration	52
Section 6.03.		Other Remedies	52
Section 6.04.		Waiver of Past Defaults	52
Section 6.05.		Control by Majority	53
Section 6.06.		Limitation on Suits	53
Section 6.07.		Rights of Holders of Notes To Receive Payment	53
Section 6.08.		Collection Suit by Trustee	53
Section 6.09.		Trustee May File Proofs of Claim	53
Section 6.10.		Priorities	54
Section 6.11.		Undertaking for Costs	54
ARTICLE VII	TRUSTEE		55
Section 7.01.		Duties of Trustee	55
Section 7.02.		Rights of Trustee	56
Section 7.03.		Individual Rights of Trustee	57
Section 7.04.		Trustee’s Disclaimer	57

 

ii

 

TABLE OF CONTENTS

(continued)

 

			Page
Section 7.05.		Notice of Defaults	57
Section 7.06.		Reports by Trustee	57
Section 7.07.		Compensation and Indemnity	57
Section 7.08.		Replacement of Trustee	58
Section 7.09.		Successor Trustee by Merger, etc.	59
Section 7.10.		Eligibility; Disqualification	59
Section 7.11.		Preferential Collection of Claims	59
ARTICLE VIII	COLLATERAL		60
Section 8.01.		Security Documents	60
Section 8.02.		Agents	60
Section 8.03.		Authorization of Actions to Be Taken	60
Section 8.04.		Release of Collateral	61
Section 8.05.		Certain Trust Indenture Act Requirements	62
Section 8.06.		Powers Exercisable by Receiver or Trustee	62
Section 8.07.		Release upon Termination of the Company’s Obligations	63
ARTICLE IX	GUARANTEES		63
Section 9.01.		Guarantee	63
Section 9.02.		Limitation on Guarantor Liability	64
Section 9.03.		Execution and Delivery of Guarantee	64
Section 9.04.		Guarantors May Consolidate, etc., on Certain Terms	64
Section 9.05.		Releases	65
ARTICLE X	LEGAL DEFEASANCE AND COVENANT DEFEASANCE		66
Section 10.01.		Option To Effect Legal Defeasance or Covenant Defeasance	66
Section 10.02.		Legal Defeasance and Discharge	66
Section 10.03.		Covenant Defeasance	66
Section 10.04.		Conditions to Legal or Covenant Defeasance	67
Section 10.05.		Deposited Money and Government Securities To Be Held in Trust; Other Miscellaneous Provisions	68
Section 10.06.		Repayment to Company	69
Section 10.07.		Reinstatement	69
ARTICLE XI	AMENDMENT, SUPPLEMENT AND WAIVER		69
Section 11.01.		Without Consent of Holders of Notes	69
Section 11.02.		With Consent of Holders of Notes	70

 

iii

 

TABLE OF CONTENTS

(continued)

 

			Page
Section 11.03.		Compliance with Trust Indenture Act	71
Section 11.04.		Revocation and Effect of Consents	71
Section 11.05.		Notation on or Exchange of Notes	72
Section 11.06.		Trustee To Sign Amendments, etc.	72
Section 11.07.		Additional Voting Terms	72
ARTICLE XII	SATISFACTION AND DISCHARGE		72
Section 12.01.		Satisfaction and Discharge	72
Section 12.02.		Application of Trust Money	73
ARTICLE XIII	MISCELLANEOUS		73
Section 13.01.		Trust Indenture Act Controls	73
Section 13.02.		Notices	73
Section 13.03.		Communication by Holders of Notes with Other Holders of Notes	74
Section 13.04.		Certificate and Opinion as to Conditions Precedent	74
Section 13.05.		Statements Required in Certificate or Opinion	75
Section 13.06.		Rules by Trustee and Agents	75
Section 13.07.		No Personal Liability of Directors, Officers, Employees and Stockholders	75
Section 13.08.		Governing Law	75
Section 13.09.		No Adverse Interpretation of Other Agreements	75
Section 13.10.		Successors	75
Section 13.11.		Severability	75
Section 13.12.		Counterpart Originals	76
Section 13.13.		Table of Contents, Headings, etc.	76
Section 13.14.		Third-Party Beneficiaries	76
Section 13.15.		Qualification of Indenture	76
Section 13.16.		Force Majeure	76
Section 13.17.		U.S.A. Patriot Act	76

 

EXHIBITS
Exhibit A-1	FORM OF 2011 NOTE
Exhibit A-2	FORM OF 2014 NOTE
Exhibit B	FORM OF CERTIFICATE OF TRANSFER
Exhibit C	FORM OF CERTIFICATE OF EXCHANGE
Exhibit D	FORM OF NOTATION OF GUARANTEE

 

iv

 

“ Affiliate ” with respect to any Person, means any other Person that directly or indirectly controls, is controlled by, or is under common control with, that Person.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting equity securities or by contract or otherwise.

 

“ Agent ” means any Registrar, co-registrar, Paying Agent or additional paying agent or Collateral Trustee.

 

“ Agent’s Message ” means a message transmitted by DTC to, and received by, the Depositary and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from each participant in DTC tendering the Notes that such participants have received the Letter of Transmittal and agree to be bound by the terms of the Letter of Transmittal and the Company may enforce such agreement against such participants.

 

“ 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 Code, 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.

 

“ Below Investment Grade Rating Event ” means, with respect to any series of Notes, the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any date from the date of the public notice of an arrangement that could result in a Change of Control until the end of the 60-day period following public notice of the occurrence of the Change of Control (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by any of the Rating Agencies).

 

2

 

“ 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.

 

“ Borrowing Base Value ” means, as of any date of determination:

 

(i)                                      with respect to any Performing Loan Asset, the book value of such Performing Loan Asset, determined in accordance with GAAP;

 

(ii)                                   with respect to any Non-Performing Loan Asset, the book value of such Non-Performing Loan Asset after giving effect to specific reserves therefor established by the Company as reflected in its GAAP financial statements;

 

(iii)                                with respect to the equity interests in a Collateral LLC owning any Credit Tenant Lease Assets, the undepreciated book value of such Credit Tenant Lease Assets, determined in accordance with GAAP (reflecting any impairment taken by the applicable Collateral LLC but without adding back any depreciation before the most recent such impairment);

 

(iv)                               with respect to the equity interests in a Collateral LLC owning Other Real Estate Owned Assets, the book value of such Other Real Estate Owned Assets, determined in accordance with GAAP (reflecting any impairment taken by the applicable Collateral LLC); and

 

(v)                                  with respect to the equity interests in a Collateral LLC owning assets other than Credit Tenant Lease Assets or Other Real Estate Owned Assets, the value of such assets as determined in accordance with the foregoing clauses.

 

Notwithstanding anything to the contrary contained herein, there shall be no Borrowing Base Value attributable to (i) the equity interests in any Collateral SPV or (ii) any assets owned by any Collateral LLC other than any Loan Assets, Credit Tenant Lease Assets, Other Real Estate Owned Assets or interests in Venture LLCs.

 

“ 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

 

3

 

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

 

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

 

“ Cash or Cash Equivalents ” means (a) cash; (b) marketable direct obligations issued or unconditionally guaranteed by the United States government or issued by an agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year after the date of acquisition thereof; (c) 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 90 days after the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from any two of S&P, Moody’s or Fitch (or, if at any time no two of the foregoing shall be rating such obligations, then from such other nationally recognized rating services selected by the Board of Directors of the Company); (d) commercial paper (foreign and domestic) or master notes, other than commercial paper or master notes issued by the Company or any of its Affiliates, and, at the time of acquisition, having a long-term rating of at least A or the equivalent from S&P, Moody’s or Fitch and having a short-term rating of at least A-1 and P-1 from S&P and Moody’s, respectively (or, if at any time neither S&P nor Moody’s shall be rating such obligations, then the highest rating from such other nationally recognized rating services selected by the Board of Directors of the Company); (e) domestic and foreign certificates of deposit or domestic time deposits or foreign deposits or bankers’ acceptances (foreign or domestic) in Dollars that are issued by a bank (i) which has, at the time of acquisition, a long-term rating of at least A or the equivalent from S&P, Moody’s or Fitch and (ii) if a domestic bank, which is a member of the Federal Deposit Insurance Corporation; (f) overnight securities repurchase agreements, or reverse repurchase agreements secured by any of the foregoing types of securities or debt instruments; provided that the collateral supporting such repurchase agreements shall have a value not less than 101% of the principal amount of the repurchase agreement plus accrued interest; and (g) money market funds invested in investments substantially all of which consist of the items described in clauses (a) through (f) foregoing.

 

“ 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);

 

(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 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; 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

 

4

 

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.

 

“ Change of Control Triggering Event ” means the occurrence of both a Change of Control and a Below Investment Grade Rating Event.

 

“ Clearstream ” means Clearstream Banking, S.A. or any successor securities clearing agency.

 

“ Code ” means the Internal Revenue Code of 1986, as amended, or any successor statute thereto.

 

“ Collateral ” means all Eligible Assets of the Collateral SPVs, now owned or hereafter acquired, upon which a Lien is purported to be created by the Security Documents and, at any time after the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder, Designated Collateral Proceeds.

 

“ Collateral LLC ” means any Subsidiary, other than a Collateral SPV, of the Company that owns Loan Assets, Credit Tenant Lease Assets, Other Real Estate Owned Assets or interests in Venture LLCs, in each case, the equity interests in which are directly and wholly owned by one or more Collateral SPVs.

 

“ Collateral Payment ” means a payment or prepayment in satisfaction or settlement in respect of any portion of the Collateral resulting in the release of such portion of the Collateral upon receipt of such payment or prepayment in satisfaction or settlement pursuant to the terms of the Collateral Trust and Intercreditor Agreement.

 

“ Collateral Proceeds ” means the aggregate net cash proceeds received by the Company or any Grantor in respect of any Collateral Payments or Third Party Sales made after the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder.

 

“ Collateral SPV ” means iStar Tara Holdings LLC, iStar Tara LLC or any other special purpose entity of the Company formed to own and hold Collateral, in each case (other than with respect to iStar Tara Holdings LLC), the equity interests in which are directly and wholly owned by iStar Tara Holdings LLC or iStar Tara LLC.

 

“ Collateral Trust and Intercreditor Agreement ” means the Collateral Trust and Intercreditor Agreement dated as of March 13, 2009, between iStar Tara Holdings LLC, iStar Tara LLC, certain Subsidiaries of the Company, JPMorgan Chase Bank, N.A., as the first priority agent, the 2011 second priority agent and the 2012 second priority agent, and the Collateral Trustee, as the same may be amended, modified, restated, extended or supplemented from time to time, whether with the same or any other parties.

 

“ Collateral Trustee ” means The Bank of New York Mellon Trust Company, N.A. in its capacity as Collateral Trustee under the Security Documents, and any and all successors thereto appointed as collateral trustee under the Security Documents.

 

“ 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.

 

5

 

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

 

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

 

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

 

(1)           Consolidated Net Income; and

 

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

 

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

 

(b)           Consolidated Interest Expense; and

 

(c)           depreciation, depletion and amortization;

 

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

 

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

 

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

 

(2)           any asset sales or other dispositions or any asset originations, asset purchases, Investments and Asset Acquisitions (including, without limitation, any Asset Acquisition giving rise to the need to make such calculation as a result of such Person or one of its Subsidiaries (including any Person who becomes a Subsidiary as a result of the Asset Acquisition) incurring, assuming or otherwise being liable for Acquired Indebtedness and also including any Consolidated EBITDA (including any pro forma expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act) attributable to the assets which are

 

6

 

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

 

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

 

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

 

(3)           the net income (but not loss) of any Subsidiary of the referent Person to the extent that the declaration of dividends or similar distributions by that Subsidiary of that income is restricted by a contract, operation of law or otherwise;

 

7

 

replaces any portion of the Secured Credit Facilities, but which does not purport to be secured by a pledge of Collateral, shall not be treated as forming part of the Secured Credit Facilities.

 

“ Credit Tenant Lease Assets ” means properties substantially all of which are either (i) leased to a governmental entity, (ii) leased to a tenant (or guaranteed by a Person) with a CTL Investment Grade Rating, (iii) properties which, if unavailable to a tenant, would materially impair the continued operation of such tenant, including without limitation, headquarters facilities, distribution centers, manufacturing facilities, or pools or classes of multiple properties leased under blanket leases or (iv) any other assets that the Company has classified as a credit tenant lease consistent with past practice.  In addition, “Credit Tenant Lease Assets” will be leased to such corporate users primarily on a triple net basis, but may also be leased on a double net, gross lease with expense stop, or bond-type basis.

 

“ CTL Investment Grade Rating ” means a rating for a Person’s senior long-term unsecured debt of BBB- or better from S&P or of Baa3 or better from Moody’s.  In the event that a Person receives Credit Ratings from S&P and Moody’s, and such Credit Ratings are not equivalent, the lower of such two (2) Credit Ratings shall be used to determine whether a CTL Investment Grade Rating was achieved.

 

“ Currency Agreement ” 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.

 

“ Dealer Managers ” means Banc of America Securities LLC, Citigroup Global Markets Inc. and J.P. Morgan Securities Inc.

 

“ 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 Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes)  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.

 

“ Designated Collateral Proceeds ” means Collateral Proceeds so identified by the Company in an Officers’ Certificate delivered to the Trustee pursuant to the second paragraph of Section 4.11 hereof.

 

“ Discount ” means, with respect to any prepayment of loans outstanding under the Secured Credit Facilities or any repurchase of Second Lien Secured Notes, the excess of (x) the par principal amount of such loans prepaid or such Second Lien Secured Notes repurchased, as applicable, over (y) the discounted prepayment amount or purchase price, as applicable, with respect to such prepayment or repurchase.

 

“ Disqualified Capital Stock ” means that portion of any Capital Stock that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a

 

9

 

sinking fund obligation or otherwise, or is redeemable at the sole option of the holder thereof on or prior to the final maturity date of the Notes.

 

“ Dollars ” and “ $ ” means the lawful money of the United States.

 

“ Eligible Assets ” means Performing Loan Assets, Non-Performing Loan Assets and the equity interests in Collateral LLCs.

 

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

 

“ Exchange Notes ” means the 8.0% Second-Priority Senior Secured Guaranteed Notes due 2011 or 10.0% Second-Priority Senior Secured Guaranteed Notes due 2014, as the case may be, issued to Holders in exchange for (1) the Initial Notes of the applicable series pursuant to the Registration Rights Agreement and (2) the Additional Notes, if any, of the applicable series 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 First Lien Credit Facility, (2) the 2011 Second Lien Credit Facility, (3) the 2012 Second Lien Credit Facility, (4) Revolving Credit Agreement, dated as of June 26, 2007, as amended through the Issue Date, among the Company, the lenders party thereto and JPMorgan Chase Bank, as administrative agent; (5) Revolving Credit Agreement, dated as of April 19, 2004, as amended through the Issue Date, among the Company, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent; (6) the 364-Day Term Loan Agreement, dated as of March 10, 2008, as amended through the Issue Date, among the Company, iStar Corporate Collateral LLC, the several banks parties thereto, and J.P. Morgan Chase, N.A., as administrative agent; (7) the Loan Agreement, dated as of April 30, 2007, as amended through the Issue Date, between iStar CTL Finance, LLC, the lenders party thereto and General Electric Capital Corporation, as administrative agent; (8) the Loan and Security Agreement, dated February 27, 2008, as amended through the Issue Date, between AStar UAG AZ1, LLC and related entities and Wachovia Bank, National Association; (9) the Loan Agreement, dated as of March 5, 1999, as amended through the Issue Date, between RLH Partnership, L.P. and Secore Financial Corporation (or its successor in interest) and (10) the Amended and Restated Master Repurchase Agreement, dated as of January 9, 2006, as amended through the Issue Date, between Deutsche Bank AG, Cayman Islands Branch, and iStar DB Seller LLC, in each case together with the related documents thereto (including, without limitation, any security documents) and in each case as such agreements may be amended (including any amendment and restatement thereof), supplemented or otherwise modified from time to time, including any agreement extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder ( provided that such increase in borrowings is permitted by Section 4.07 and Section 4.12 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 Euroclear Bank S.A./N.V., as operator of the Euroclear Clearance System or any successor securities clearing agency.

 

10

 

“ 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.

 

“ First Lien Credit Facility ” means the $1,000,000,000 First Priority Credit Agreement, dated as of March 13, 2009, by and among the Company, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as the same may be amended, modified, restated, extended or supplemented from time to time, whether with the same or any other parties.

 

“ First Priority Secured Parties ” has the meaning set forth in the Collateral Trust and Intercreditor Agreement.

 

“ Fitch ” means Fitch Investors Services, Inc. or any successor thereto.

 

“ GAAP ” means generally accepted accounting principles in the United States recognized as such in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and 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, which are applicable to the circumstances as of the date of determination.

 

“ Global Note Legend ” means the legend set forth in Section 2.06(g)(ii) 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 Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes), 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.

 

“ Grantor ” means each of the Collateral SPVs that is a party to the Security Agreement.

 

“ Guarantee ” means the full and unconditional guarantee of the payment of principal, interest and premium, if any, on the applicable Notes as set forth in this Indenture.

 

“ Guarantor ” means:  (i) each of the Collateral SPVs and the Collateral LLCs that, in each case, is party to this Indenture and (ii) any Subsidiary 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 ” means a Person in whose name a Note is registered on the Registrar’s books.

 

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

 

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

 

11

 

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

 

(3)           all Capitalized Lease Obligations of such Person;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“ Initial 2011 Notes ” means the $155,253,000 principal amount of 8.0% Second-Priority Senior Secured Guaranteed Notes due 2011 of the Company issued on the Issue Date.

 

“ Initial 2014 Notes ” means the $479,548,000 principal amount of 10.0% Second-Priority Senior Secured Guaranteed Notes due 2014 of the Company issued on the Issue Date.

 

“ Initial Notes ” means Initial 2011 Notes and Initial 2014 Notes.

 

12

 

“ Initial Notes ” means the 2011 Notes and the 2014 Notes.

 

“ Interest Payment Date ” means March 15 and September 15 of each year commencing September 15, 2009 (in the case of the 2011 Notes) and June 15 and December 15 of each year commencing December 15, 2009 (in the case of the 2014 Notes).

 

“ Interest Period ” means the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next succeeding Interest Payment Date, with the exception that the first Interest Period shall commence on and include May 8, 2009 and end on and include September 14, 2009 (in the case of the 2011 Notes) and the first Interest Period shall commence on and include May 8, 2009 and end on and include December 14, 2009 (in the case of the 2014 Notes).

 

“ 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 Affiliate ” means any joint venture or Subsidiary, whose financial results are not consolidated under GAAP with the financial results of the Company on the consolidated financial statements of the Company.

 

“ Investment Grade Rating ” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.

 

“ Issue Date ” means May 8, 2009, the date of original issuance of the Initial Notes.

 

“ Junior Lien Secured Notes ” means Secured Notes which are secured by a security interest in the Collateral that is junior to the lien in favor of the Notes.

 

“ Legacy Pledged Collateral ” means any Collateral included on the Pledged Collateral List as such list was in effect on the date of the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder.

 

“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind, or any other type of preferential arrangement, in each case that has the effect of creating a security interest in respect of such asset.  For the purposes of this Indenture, the Company or any Consolidated Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

 

13

 

“ Listed Eligible Assets ” means the Eligible Assets included on the ranked list set forth in a schedule to the Secured Credit Facilities, as such list was in effect on the date of the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder, as updated thereafter by the Company from time to time to reflect changes resulting from (i) releases, withdrawals, sales or other dispositions of Collateral included on the Pledged Collateral List and (ii) any additions relating to Legacy Pledged Collateral in accordance with Section 8.04(c) hereof.

 

“ Loan Assets ” means senior or subordinated loans that may be either fixed or variable rate, including, without limitation, first mortgages, second mortgages, mezzanine loans, repurchase agreements, participations in loans, interim facilities, corporate loans, debt securities, “B” notes and collateralized mortgage-backed securities.

 

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

 

“ Moody’s ” means Moody’s Investors Services, Inc. or any successor thereto.

 

“ Non-Performing Loan Assets ” means any Loan Asset classified as non-performing in accordance with the Company’s internal procedures, consistent with past practice.

 

“ Non-Recourse Indebtedness ” means Indebtedness with respect to which recourse for payment is limited to (i) specific assets related to a particular Property or group of Properties encumbered by a Lien securing such Indebtedness or (ii) for all purposes other than an Event of Default specified in Section 6.01(5) hereof, any Subsidiary ( provided that if a Subsidiary is a partnership, there is no recourse to the Company as a general partner of such partnership); provided that if any portion of Indebtedness is so limited, then such portion shall constitute Non-Recourse Indebtedness; provided , further , however , that personal recourse of the Company for any such Indebtedness for fraud, misrepresentation, misapplication of cash, waste, environmental claims and liabilities and other circumstances customarily excluded by institutional lenders from exculpation provisions and/or included in separate indemnification agreements in non-recourse financing of real estate shall not, by itself, prevent such Indebtedness from being characterized as Non-Recourse Indebtedness.

 

“ Notes ” means, collectively, the Initial Notes and the Additional Notes, if any, 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.

 

“ Offering Memorandum ” means the confidential offering memorandum dated April 9, 2009.

 

“ 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

 

14

 

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.

 

“ Opinion of Counsel ” means an opinion from legal counsel who is reasonably acceptable to the Trustee that meets the requirements of Section 13.05.  The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.

 

“ Other Real Estate Owned Assets ” means properties acquired by foreclosure or by deed-in-lieu of foreclosure in partial or total satisfaction of Non-Performing Loan Assets.

 

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

 

“ Performing Loan Assets ” means any Loan Assets other than Non-Performing Loan Assets.

 

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

 

(1)           Indebtedness under:  (a) the Notes up to a maximum aggregate principal amount of $1.0 billion; and (b) all senior notes of the Company outstanding on the Issue Date, after giving effect to the completion of the offers contemplated by the Offering Memorandum;

 

(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 of any term loans outstanding under the Existing Credit Agreements on the Issue Date plus the maximum aggregate amount available under the revolving and delayed draw portions of the Existing Credit Agreements as in effect on the Issue Date reduced by any required permanent repayments (which are accompanied by a corresponding permanent commitment reduction) thereunder;

 

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

 

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

 

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

 

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

 

15

 

(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 and the Guarantor’s obligations under this Indenture, the Notes and the Guarantees; and (b) if as of any date any Person other than a Wholly Owned Subsidiary of the Company owns or holds any such Indebtedness or any Person holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by the Company;

 

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

 

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

 

(10)         Refinancing Indebtedness; and

 

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

 

For purposes of determining compliance with Section 4.07 hereof, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (11) above or is entitled to be incurred pursuant to the second paragraph of such covenant, the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with this covenant.  Accrual of interest, accretion or amortization of original 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 Section 4.07 hereof.

 

“ Permitted Liens ” means:

 

(a)           Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted in accordance with the terms hereof;

 

(b)           statutory liens of carriers, warehousemen, mechanics, materialmen and other similar liens imposed by law, which are incurred in the ordinary course of business for sums not more than 90 days delinquent or which are being contested in good faith in accordance with the terms hereof; and

 

(c)           easements (including reciprocal easement agreements and utility agreements), rights-of-way, zoning restrictions, other covenants, reservations, encroachments, leases, licenses or similar charges or encumbrances (whether or not recorded) and all other items listed on any Schedule B to the Company’s owner’s title insurance policies, except in connection with any

 

16

 

Indebtedness, for any of the Company’s Real Property Assets, so long as the foregoing do not interfere in any material respect with the use or ordinary conduct of the business of the Company and do not diminish in any material respect the value of the Property to which such Permitted Lien is attached.

 

“ Person ” means an individual, a corporation, a partnership, a limited liability company, an association, a trust or any other entity or organization, including, without limitation, a government or political subdivision or an agency or instrumentality thereof.

 

“ Pledged Collateral List ” means the ranked list of Collateral set forth in a schedule to the Secured Credit Facilities, as such list was in effect on the date of the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder, as updated thereafter by the Company from time to time to reflect changes resulting from (i) releases, withdrawals, sales or other dispositions of Collateral included on the Pledged Collateral List and (ii) the addition of Qualified Substitute Collateral.

 

“ Pledged Collateral LLC ” means a Collateral LLC, the equity interests in which constitute Collateral.

 

“ 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)(A) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture.

 

“ Property ” means, with respect to any Person, any real or personal property, building, facility, structure, equipment or unit, or other asset owned by such Person.

 

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

 

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

 

“ Qualified Substitute Collateral ” means Collateral added to the Pledged Collateral List in the following order:

 

first , Eligible Assets then available to be pledged from the Listed Eligible Assets (in the order in which such assets are ranked, from highest to lowest);

 

second , remaining Eligible Assets other than Non-Performing Loan Assets; and

 

thereafter , Non-Performing Loan Assets.

 

“ Rating Agencies ” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by a resolution of the Board of Directors of the Company) as a replacement agency for Fitch, Moody’s or S&P, or all of them, as the case may be.

 

17

 

“ Real Property Assets ” means as to any Person as of any time, the real property assets (including, without limitation, interests in participating mortgages in which such Person’s interest therein is characterized as equity according to GAAP) owned directly or indirectly by such Person at such time.

 

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

 

“ Refinancing Indebtedness ” means any Refinancing by the Company or any Subsidiary of the Company of Indebtedness incurred in accordance with Section 4.07 and Section 4.12 hereof, 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 or the Guarantees, then such Refinancing Indebtedness shall be subordinate or junior to the Notes or the Guarantees, as applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.

 

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

 

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

 

“ Regulation S Global Note(s) ” means one or more Global Notes in the form of Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes) hereto bearing the Global Note Legend and the complete Private Placement Legend (if applicable) 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.

 

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

 

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

 

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

 

18

 

“ 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.

 

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc. or any successor thereto.

 

“ Second Lien Credit Facilities ” means the loans, letters of credit and commitments documented under the 2011 Second Lien Credit Facility and the loans, letters of credit and commitments documented under the 2012 Second Lien Credit Facility (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 or indenture extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under any such agreement or any successor replacement agreement and whether by the same or any other agent, lender or group or lenders.

 

“ Second Lien Guarantee Agreements ” means (i) the 2011 Second Priority Guarantee Agreement dated as of March 13, 2009 made by iStar Tara Holdings LLC, iStar Tara LLC and the other guarantors party thereto in favor of JPMorgan Chase Bank, N.A., as administrative agent, as the same may be amended, modified, restated, extended or supplemented from time to time, whether with the same or any other parties, and (ii) the 2012 Second Priority Guarantee Agreement dated as of March 13, 2009 made by iStar Tara Holdings LLC, iStar Tara LLC and the other guarantors party thereto in favor of JPMorgan Chase Bank, N.A., as administrative agent, as the same may be amended, modified, restated, extended or supplemented from time to time, whether with the same or any other parties.

 

“ Second Lien Secured Notes ” means Secured Notes which (i) are secured ratably with the Second Lien Credit Facilities (if any, or otherwise secured ratably with the Notes) by a second-priority security interest in the Collateral, subject only to the first-priority Lien granted pursuant to the Security Agreement for the benefit of the First Priority Secured Parties and (ii) at any time prior to the repayment in full of all loans and other obligations under the Secured Credit Facilities and the termination of the commitments thereunder, do not exceed $1.0 billion in aggregate principal amount outstanding at any time.

 

“ Secured Credit Facilities ” means the Second Lien Credit Facilities and the loans and commitments documented under the First Lien Credit Facility (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 or indenture extending the maturity of, refinancing, replacing or otherwise restructuring (including increasing the amount of available borrowings thereunder or adding Subsidiaries of the Company as additional borrowers or guarantors thereunder) all or any portion of the Indebtedness under any such agreement or any successor replacement agreement and whether by the same or any other agent, lender or group or lenders.

 

“ Secured Credit Facilities Loan Documents ” means (i) the “Loan Documents” as defined in the First Lien Credit Facility, (ii) the “Loan Documents” as defined in the 2011 Second Lien Credit Facility and (iii) the “Loan Documents” as defined in the 2012 Second Lien Credit Facility.

 

19

 

“ Total Unencumbered Assets ” means, as of any date, 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.

 

“ Transfer Restricted Securities ” has the meaning given such term in the Registration Rights Agreement.

 

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

 

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

 

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

 

“ Unrestricted Definitive Note ” means one or more Definitive Notes that do not bear and are not required to bear the Private Placement Legend (except that it will be required to bear the second paragraph of the Private Placement Legend).

 

“ Unrestricted Global Note ” means a Global Note in the form of Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes) 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 (except that it will be required to bear the second paragraph of 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.

 

“ Venture LLC ” means (i) an Investment Affiliate that owns Loan Assets, Credit Tenant Lease Assets and/or Other Real Estate Owned Assets and (ii) iStar Woodward LLC.

 

“ 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 by; (2) the sum 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.

 

21

 

Section 1.02.          Other Definitions .

 

Term		Defined in Section
“ Acceleration Notice ”		6.02
“ Authentication Order ”		2.02
“ Change of Control Date ”		4.10
“ Change of Control Payment Date ”		4.10
“ Change of Control Offer ”		4.10
“ Change of Control Purchase Date ”		4.10
“ Change of Control Purchase Price ”		4.10
“ Covenant Defeasance ”		10.03
“ DTC ”		2.03
“ Event of Default ”		6.01
“ incur ”		4.07
“ Legal Defeasance ”		10.02
“ Paying Agent ”		2.03
“ Redemption Date ”		3.07
“ Redemption Price ”		3.07
“ Registrar ”		2.03
“ Successor Person ”		9.04
“ Surviving Entity ”		5.01

 

Section 1.03.          Incorporation by Reference of Trust Indenture Act .  Whenever this Indenture refers to a provision of the Trust Indenture Act, 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 Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture Act 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;

 

(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 Commission from time to time; and

 

(g)           all references to interest or any other amount payable on or with respect to the Notes shall be deemed to include any Additional Interest.

 

22

 

ARTICLE II

 

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 Exhibits A-1 (in the case of the 2011 Notes) and A-2 hereto (in the case of the 2014 Notes).  The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage.  Each Note shall be dated the date of its authentication.  The Notes shall be in denominations of $1,000 and integral multiples thereof.

 

The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Company, the Guarantors 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 Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes) attached hereto (including, in each case, 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 Exhibits A-1 (in the case of the 2011 Notes) and A-2 (in the case of the 2014 Notes) attached hereto (but, in each case, 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, and the Company, the Guarantors, the Trustee and any agent of the Company, the Guarantors or the Trustee shall be entitled to treat the Depositary as the absolute owner of such Global Note for all purposes whatsoever.  Notwithstanding the foregoing, nothing herein shall prevent the Company, the Guarantors, 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

 

23

 

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 on behalf of the Company by manual or facsimile signature.

 

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

 

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

 

The Trustee shall, upon receipt of a written order of the Company signed by one or more Officers (an “ Authentication Order ”), authenticate 2011 Notes for original issue on the Issue Date in aggregate principal amount not to exceed $155,253,000 (other than as provided in Section 2.07) and 2014 Notes for original issue on the Issue Date in aggregate principal amount not to exceed $479,548,000 (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 receipt of 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

 

24

 

held by it to the Trustee.  Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall have no further liability for the money.  If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.

 

Section 2.05.          Holder Lists .  The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act § 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 Trust Indenture Act § 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, (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 or (iii) with respect to a series of Notes, there shall have occurred and be continuing a Default or Event of Default with respect to the Notes of such series and any Holder of such series so requests.  Upon the occurrence of any of the preceding events 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, except for Definitive Notes issued subsequent to any of the events in (i), (ii) or (iii) above or pursuant to Section 2.06(c) hereof.  A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided , however , that beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f) hereof.

 

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

 

(i)            Transfer of Beneficial Interests in the Same Global Note .  Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in

 

25

 

accordance with the transfer restrictions set forth in the complete 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 of the same series 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 (B)(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 from the Company as to the principal amount of Notes validly exchanged.  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; and

 

(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.

 

(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:

 

26

 

(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 of the same series, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

 

(2)           if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note of the same series, 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 complete 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.

 

27

 

(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 of the same series, 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, 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, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

 

(D)          if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, 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 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

 

(F)           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 complete 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

 

28

 

beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

 

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

 

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

 

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

 

(D)          the Registrar receives the following:

 

(1)           if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note of the same series that does not bear the complete 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 of the same series that does not bear the complete 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 complete 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 of the same series 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

 

29

 

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 complete Private Placement Legend.

 

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

 

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

 

(A)          if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note of the same series, 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, 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, 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 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

 

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

 

the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and, in the case of clause (C) above, the Regulation S 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 of the same series or transfer such Restricted

 

30

 

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 herein and in the complete 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 of the same series 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.

 

31

 

(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 complete Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

 

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

 

(f)            Exchange Offer .  Upon the occurrence of the Exchange Offer in accordance with the Registration Rights Agreement, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.02, the Trustee shall authenticate (i) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes tendered for acceptance by Persons that certify in the applicable Letters of Transmittal or through an Agent’s Message through the DTC Automated Tender Offers Program 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) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive 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.  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.

 

33

 

(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, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.  BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:

 

(I)                                 REPRESENTS THAT (A) IT (I) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “ QIB ”) AND (II) IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB OR (B) IT IS NOT A U.S. PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,

 

(II)                             AGREES THAT IT WILL NOT, WITHIN THE APPLICABLE TIME PERIOD REFERRED TO UNDER RULE 144(d)(1) (TAKING INTO ACCOUNT THE OTHER PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS SECURITY, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) IN THE UNITED STATES, TO A PERSON WHOM THE HOLDER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (B) OUTSIDE THE UNITED STATES, IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF REGULATION S UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (E) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, AND, IN EACH CASE, IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AND

 

34

 

(III)                         AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(C) OR 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

 

EACH PURCHASER OR TRANSFEREE OF THIS SECURITY OR ANY INTEREST HEREIN WILL BE DEEMED BY ITS ACQUISITION AND HOLDING OF THIS SECURITY TO HAVE REPRESENTED AND AGREED THAT EITHER (I) IT IS NOT, AND NO PORTION OF THE ASSETS USED TO ACQUIRE OR HOLD THIS SECURITY OR AN INTEREST HEREIN CONSTITUTES THE ASSETS OF, AN “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(42) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ ERISA ”) WHICH IS SUBJECT TO TITLE I OF ERISA, A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “ CODE ”) OR ANY OTHER FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “ SIMILAR LAW ”), OR ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH PLAN, ACCOUNT OR ARRANGEMENT (EACH, A “ PLAN ”) OR (II) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.

 

IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY OR ANY INTEREST HEREIN WITHIN THE APPLICABLE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE.  AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF 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 (except that any such Global Note or Definitive Note shall bear the second paragraph of the Private Placement Legend).

 

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

 

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY

 

35

 

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 receipt of an Authentication Order in accordance with Section 2.02 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 2.07, 2.10, 3.06, 4.10 and 11.05 hereof).

 

(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

 

36

 

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, premium, if any, 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.

 

(j)            Automatic Exchange from Restricted Global Note to Unrestricted Global Note .  Subject to Section 2.06(k), on the date that is 365 days after (i) in the case of the Initial Notes, the Issue Date or (ii) in the case of any Additional Notes, the date any such Additional Notes were issued, beneficial interests in a Restricted Global Note shall be exchanged for beneficial interests in an Unrestricted Global Note.  In order to effect such exchange, the Company shall provide written notice to the Trustee instructing the Trustee to (i) direct the Depositary to transfer the specified amount of the outstanding beneficial interests in a particular Restricted Global Note to an Unrestricted Global Note and provide the Depositary with all such information as is necessary for the Depositary to appropriately credit and debit the relevant Holder accounts and (ii) provide prior written notice to all Holders of such exchange, which notice must include the date such exchange is proposed to occur, the CUSIP number of the relevant Restricted Global Note and the CUSIP number of the Unrestricted Global Note into which such Holders’ beneficial interests will be exchanged.  As a condition to any such exchange pursuant to this Section 2.06(j), the Trustee shall be entitled to receive from the Company, and rely upon conclusively without any liability, an Officers’ Certificate and an Opinion of Counsel to the Company, in form and in sub