Exhibit 4.5




 





 


CAPITAL
TRUST, INC.,


 


Issuer


 


AND


 


[           ]


 


Trustee


 






 


INDENTURE


 


Dated
as of [                   ], 2008


 


 






 


Subordinated
Debt Securities




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Section of

  Trust Indenture Act

  of 1939, as amended

  	
   

  	
  Section of

  Indenture

  
	
   

  	
   

  	
   

  
	
  310(a)

  	
   

  	
  7.09

  
	
  310(b)

  	
   

  	
  7.08

  
	
   

  	
   

  	
  7.10

  
	
  310(c)

  	
   

  	
  Inapplicable

  
	
  311(a)

  	
   

  	
  7.13(a)

  
	
  311(b)

  	
   

  	
  7.13(b)

  
	
  311(c)

  	
   

  	
  Inapplicable

  
	
  312(a)

  	
   

  	
  5.01

  
	
   

  	
   

  	
  5.02(a)

  
	
  312(b)

  	
   

  	
  5.02(b)

  
	
  312(c)

  	
   

  	
  5.02(c)

  
	
  313(a)

  	
   

  	
  5.04(a)

  
	
  313(b)

  	
   

  	
  5.04(b)

  
	
  313(c)

  	
   

  	
  5.04(a)

  
	
   

  	
   

  	
  5.04(b)

  
	
  313(d)

  	
   

  	
  5.04(c)

  
	
  314(a)

  	
   

  	
  5.03

  
	
  314(b)

  	
   

  	
  Inapplicable

  
	
  314(c)

  	
   

  	
  13.06

  
	
  314(d)

  	
   

  	
  Inapplicable

  
	
  314(e)

  	
   

  	
  13.06

  
	
  314(f)

  	
   

  	
  Inapplicable

  
	
  315(a)

  	
   

  	
  7.01(a)

  
	
   

  	
   

  	
  7.02

  
	
  315(b)

  	
   

  	
  6.07

  
	
  315(c)

  	
   

  	
  7.01

  
	
  315(d)

  	
   

  	
  7.01(b)

  
	
   

  	
   

  	
  7.01(c)

  
	
  315(e)

  	
   

  	
  6.07

  
	
  316(a)

  	
   

  	
  6.06

  
	
   

  	
   

  	
  8.04

  
	
  316(b)

  	
   

  	
  6.04

  
	
  316(c)

  	
   

  	
  8.01

  
	
  317(a)

  	
   

  	
  6.02

  
	
  317(b)

  	
   

  	
  4.03

  
	
  318(a)

  	
   

  	
  13.08

  



 






	
  *

  	
   

  	
  This Cross-Reference
  Table does not constitute part of the Indenture and shall not have any
  bearing on the interpretation of any of its terms or provisions.

  



 


 

















 


TABLE OF CONTENTS*


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PARTIES

  	
   

  	
   

  	
   

  	
  1

  
	
  RECITALS

  	
   

  	
   

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE I.

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
   

  	
  Definitions of Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Affiliate

  	
   

  	
  1

  
	
   

  	
   

  	
  Authenticating
  Agent

  	
   

  	
  2

  
	
   

  	
   

  	
  Bankruptcy Law

  	
   

  	
  2

  
	
   

  	
   

  	
  Board of
  Directors

  	
   

  	
  2

  
	
   

  	
   

  	
  Board Resolution

  	
   

  	
  2

  
	
   

  	
   

  	
  Business Day

  	
   

  	
  2

  
	
   

  	
   

  	
  Certificate

  	
   

  	
  2

  
	
   

  	
   

  	
  Company

  	
   

  	
  2

  
	
   

  	
   

  	
  Corporate Trust
  Office

  	
   

  	
  2

  
	
   

  	
   

  	
  Custodian

  	
   

  	
  2

  
	
   

  	
   

  	
  Default

  	
   

  	
  2

  
	
   

  	
   

  	
  Depositary

  	
   

  	
  2

  
	
   

  	
   

  	
  Event of Default

  	
   

  	
  2

  
	
   

  	
   

  	
  Global Security

  	
   

  	
  3

  
	
   

  	
   

  	
  Governmental
  Obligations

  	
   

  	
  3

  
	
   

  	
   

  	
  “herein”,
  “hereof” and “hereunder”

  	
   

  	
  3

  
	
   

  	
   

  	
  Indenture

  	
   

  	
  3

  
	
   

  	
   

  	
  Interest Payment
  Date

  	
   

  	
  3

  
	
   

  	
   

  	
  Officers’
  Certificate

  	
   

  	
  3

  
	
   

  	
   

  	
  Opinion of
  Counsel

  	
   

  	
  3

  
	
   

  	
   

  	
  Outstanding

  	
   

  	
  3

  
	
   

  	
   

  	
  Person

  	
   

  	
  4

  
	
   

  	
   

  	
  Predecessor
  Security

  	
   

  	
  4

  
	
   

  	
   

  	
  Responsible
  Officer

  	
   

  	
  4

  
	
   

  	
   

  	
  Securities

  	
   

  	
  4

  
	
   

  	
   

  	
  Securityholder

  	
   

  	
  4

  
	
   

  	
   

  	
  Subsidiary

  	
   

  	
  4

  
	
   

  	
   

  	
  Trust Indenture
  Act

  	
   

  	
  4

  
	
   

  	
   

  	
  Trustee

  	
   

  	
  4

  
	
   

  	
   

  	
  Voting Stock

  	
   

  	
  5

  



 






	
  *

  	
   

  	
  This Table of Contents does not constitute part of
  the Indenture and shall not have any bearing on the interpretation of any of
  its terms or provisions.

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  
	
  ISSUE, DESCRIPTION,
  TERMS, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
   

  	
  Designation and Terms of Securities

  	
   

  	
  5

  
	
  SECTION 2.02

  	
   

  	
  Form of Securities and Trustee’s Certificate

  	
   

  	
  7

  
	
  SECTION 2.03

  	
   

  	
  Denominations; Provisions for Payment

  	
   

  	
  7

  
	
  SECTION 2.04

  	
   

  	
  Execution and Authentications

  	
   

  	
  9

  
	
  SECTION 2.05

  	
   

  	
  Registration of Transfer and Exchange

  	
   

  	
  9

  
	
  SECTION 2.06

  	
   

  	
  Temporary Securities

  	
   

  	
  10

  
	
  SECTION 2.07

  	
   

  	
  Mutilated, Destroyed, Lost or Stolen Securities

  	
   

  	
  11

  
	
  SECTION 2.08

  	
   

  	
  Cancellation

  	
   

  	
  12

  
	
  SECTION 2.09

  	
   

  	
  Benefits of Indenture

  	
   

  	
  12

  
	
  SECTION 2.10

  	
   

  	
  Authenticating Agent

  	
   

  	
  12

  
	
  SECTION 2.11

  	
   

  	
  Global Securities

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  
	
  REDEMPTION OF
  SECURITIES AND SINKING FUND PROVISIONS

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
   

  	
  Redemption

  	
   

  	
  14

  
	
  SECTION 3.02

  	
   

  	
  Notice of Redemption

  	
   

  	
  14

  
	
  SECTION 3.03

  	
   

  	
  Payment Upon Redemption

  	
   

  	
  15

  
	
  SECTION 3.04

  	
   

  	
  Sinking Fund

  	
   

  	
  16

  
	
  SECTION 3.05

  	
   

  	
  Satisfaction of Sinking Fund Payments with Securities

  	
   

  	
  16

  
	
  SECTION 3.06

  	
   

  	
  Redemption of Securities for Sinking Fund

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  
	
  CERTAIN COVENANTS

  
	
   

  
	
  SECTION 4.01

  	
   

  	
  Payment of Principal, Premium and Interest

  	
   

  	
  17

  
	
  SECTION 4.02

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  17

  
	
  SECTION 4.03

  	
   

  	
  Paying Agents

  	
   

  	
  17

  
	
  SECTION 4.04

  	
   

  	
  Appointment to Fill Vacancy in Office of Trustee

  	
   

  	
  18

  
	
  SECTION 4.05

  	
   

  	
  Compliance with Consolidation Provisions

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  
	
  SECURITYHOLDERS’ LISTS
  AND REPORTS BY THE COMPANY AND THE TRUSTEE

  
	
   

  
	
  SECTION 5.01

  	
   

  	
  Company to Furnish Trustee Names and Addresses of Securityholders

  	
   

  	
  18

  
	
  SECTION 5.02

  	
   

  	
  Preservation of Information; Communications with Securityholders

  	
   

  	
  19

  
	
  SECTION 5.03

  	
   

  	
  Reports by the Company

  	
   

  	
  19

  
	
  SECTION 5.04

  	
   

  	
  Reports by the Trustee

  	
   

  	
  20

  
						



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE VI.

  
	
  REMEDIES OF THE TRUSTEE
  AND SECURITYHOLDERS ON EVENT OF DEFAULT

  
	
   

  
	
  SECTION 6.01

  	
   

  	
  Events of Default

  	
   

  	
  20

  
	
  SECTION 6.02

  	
   

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
   

  	
  22

  
	
  SECTION 6.03

  	
   

  	
  Application of Moneys Collected

  	
   

  	
  23

  
	
  SECTION 6.04

  	
   

  	
  Limitation on Suits

  	
   

  	
  24

  
	
  SECTION 6.05

  	
   

  	
  Rights and Remedies Cumulative; Delay or Omission Not Waiver

  	
   

  	
  24

  
	
  SECTION 6.06

  	
   

  	
  Control by Securityholders

  	
   

  	
  25

  
	
  SECTION 6.07

  	
   

  	
  Undertaking to Pay Costs

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  
	
  CONCERNING THE TRUSTEE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
   

  	
  Certain Duties and Responsibilities of Trustee

  	
   

  	
  26

  
	
  SECTION 7.02

  	
   

  	
  Certain Rights of Trustee

  	
   

  	
  27

  
	
  SECTION 7.03

  	
   

  	
  Trustee Not Responsible for Recitals or Issuance or Securities

  	
   

  	
  28

  
	
  SECTION 7.04

  	
   

  	
  May Hold Securities

  	
   

  	
  28

  
	
  SECTION 7.05

  	
   

  	
  Moneys Held in Trust

  	
   

  	
  28

  
	
  SECTION 7.06

  	
   

  	
  Compensation and Reimbursement

  	
   

  	
  28

  
	
  SECTION 7.07

  	
   

  	
  Reliance on Officers’ Certificate

  	
   

  	
  29

  
	
  SECTION 7.08

  	
   

  	
  Disqualification; Conflicting Interests

  	
   

  	
  29

  
	
  SECTION 7.09

  	
   

  	
  Corporate Trustee Required; Eligibility

  	
   

  	
  29

  
	
  SECTION 7.10

  	
   

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  30

  
	
  SECTION 7.11

  	
   

  	
  Acceptance of Appointment By Successor

  	
   

  	
  31

  
	
  SECTION 7.12

  	
   

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
   

  	
  32

  
	
  SECTION 7.13

  	
   

  	
  Preferential Collection of Claims Against the Company

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  
	
  CONCERNING THE
  SECURITYHOLDERS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
   

  	
  Evidence of Action by Securityholders

  	
   

  	
  33

  
	
  SECTION 8.02

  	
   

  	
  Proof of Execution by Securityholders

  	
   

  	
  33

  
	
  SECTION 8.03

  	
   

  	
  Who May be Deemed Owners

  	
   

  	
  34

  
	
  SECTION 8.04

  	
   

  	
  Certain Securities Owned by Company Disregarded

  	
   

  	
  34

  
	
  SECTION 8.05

  	
   

  	
  Actions Binding on Future Securityholders

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  
	
  SUPPLEMENTAL INDENTURES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.01

  	
   

  	
  Supplemental Indentures Without the Consent of Securityholders

  	
   

  	
  35

  
	
  SECTION 9.02

  	
   

  	
  Supplemental Indentures With Consent of Securityholders

  	
   

  	
  36

  
	
  SECTION 9.03

  	
   

  	
  Effect of Supplemental Indentures

  	
   

  	
  36

  
	
  SECTION 9.04

  	
   

  	
  Securities Affected by Supplemental Indentures

  	
   

  	
  37

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 9.05

  	
   

  	
  Execution of Supplemental Indentures

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  
	
  SUCCESSOR CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 10.01

  	
   

  	
  Company May Consolidate, Etc.

  	
   

  	
  37

  
	
  SECTION 10.02

  	
   

  	
  Successor Corporation Substituted

  	
   

  	
  38

  
	
  SECTION 10.03

  	
   

  	
  Evidence of Consolidation, Etc. to Trustee

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI.

  
	
  SATISFACTION AND
  DISCHARGE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 11.01

  	
   

  	
  Satisfaction and Discharge of Indenture

  	
   

  	
  39

  
	
  SECTION 11.02

  	
   

  	
  Discharge of Obligations

  	
   

  	
  39

  
	
  SECTION 11.03

  	
   

  	
  Deposited Moneys to be Held in Trust

  	
   

  	
  40

  
	
  SECTION 11.04

  	
   

  	
  Payment of Moneys Held by Paying Agents

  	
   

  	
  40

  
	
  SECTION 11.05

  	
   

  	
  Repayment to Company

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII.

  
	
  IMMUNITY OF
  INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SECTION 12.01

  	
   

  	
  No Recourse

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII.

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  
	
  SECTION 13.01

  	
   

  	
  Effect on Successors and Assigns

  	
   

  	
  41

  
	
  SECTION 13.02

  	
   

  	
  Actions by Successor

  	
   

  	
  41

  
	
  SECTION 13.03

  	
   

  	
  Surrender of Company Powers

  	
   

  	
  41

  
	
  SECTION 13.04

  	
   

  	
  Notices

  	
   

  	
  41

  
	
  SECTION 13.05

  	
   

  	
  Governing Law

  	
   

  	
  41

  
	
  SECTION 13.06

  	
   

  	
  Treatment of Securities as Debt

  	
   

  	
  42

  
	
  SECTION 13.07

  	
   

  	
  Compliance Certificates and Opinions

  	
   

  	
  42

  
	
  SECTION 13.08

  	
   

  	
  Payments on Business Days

  	
   

  	
  42

  
	
  SECTION 13.09

  	
   

  	
  Conflict with Trust Indenture Act

  	
   

  	
  42

  
	
  SECTION 13.10

  	
   

  	
  Counterparts

  	
   

  	
  42

  
	
  SECTION 13.11

  	
   

  	
  Separability

  	
   

  	
  43

  
	
  SECTION 13.12

  	
   

  	
  Assignment

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV.

  
	
  SUBORDINATION OF
  SECURITIES

  
	
   

  
	
  SECTION 14.01

  	
   

  	
  Subordination Terms

  	
   

  	
  43

  



 


iv

















 


INDENTURE, dated as of [ ], 2008, among Capital Trust, Inc.,
a Maryland corporation (the “Company”), and [ ], as trustee (the “Trustee”):


 


WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured subordinated debt securities (hereinafter referred to as
the “Securities”), in an unlimited aggregate principal amount to be issued from
time to time in one or more series as in this Indenture provided, as registered
Securities without coupons, to be authenticated by the certificate of the
Trustee;


 


WHEREAS, to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture; and


 


WHEREAS, all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.


 


NOW, THEREFORE, in consideration of the premises and the purchase of
the Securities by the holders thereof, it is mutually covenanted and agreed as
follows for the equal and ratable benefit of the holders of Securities:


 


ARTICLE I.


 


DEFINITIONS


 


SECTION 1.01                                            Definitions of Terms.


 


The terms defined in this Section (except as in this Indenture
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section and shall include the
plural as well as the singular. All other terms used in this Indenture that are
defined in the Trust Indenture Act of 1939, as amended, or that are by
reference in such Act defined in the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of the
execution of this instrument.


 


“Affiliate” means, with respect to a specified Person, (a) any
Person directly or indirectly owning, controlling or holding with power to vote
10% or more of the outstanding voting securities or other ownership interests
of the specified Person, (b) any Person 10% or more of whose outstanding
voting securities or other ownership interests are directly or indirectly
owned, controlled or held with power to vote by the specified Person, (c) any
Person directly or indirectly controlling, controlled by, or under common
control with the specified Person, (d) a partnership in which the specified
Person is a general partner, (e) any officer or director of the specified
Person, and (f) if the specified Person is an individual, any entity of
which the specified Person is an officer, director or general partner.


 


1

















 


“Authenticating Agent” means an authenticating agent with respect to
all or any of the series of Securities appointed with respect to all or any
series of the Securities by the Trustee pursuant to Section 2.10.


 


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


 


“Board of Directors” means the Board of Directors of the Company or any
duly authorized committee of such Board.


 


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


 


“Business Day” means, with respect to any series of Securities, any day
other than a day on which Federal or State banking institutions in the Borough
of Manhattan, The City of New York, are authorized or obligated by law,
executive order or regulation to close.


 


“Certificate” means a certificate signed by the principal executive officer,
the principal financial officer, the Treasurer or the principal accounting
officer of the Company. The Certificate need not comply with the provisions of Section 13.07.


 


“Company” means Capital Trust, Inc., a corporation duly organized
and existing under the laws of the State of Maryland, and, subject to the
provisions of Article Ten, shall also include its successors and assigns.


 


“Corporate Trust Office” means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at [ ], except
that whenever a provision herein refers to an office or agency of the Trustee
in the Borough of Manhattan, The City of New York, such office is located, at
the date hereof, at [ ].


 


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


 


“Default” means any event, act or condition that with notice or lapse
of time, or both, would constitute an Event of Default.


 


“Depositary” means, with respect to Securities of any series, for which
the Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Securities
and Exchange Act of 1934, as amended (the “Exchange Act”), or other applicable
statute or regulation, which, in each case, shall be designated by the Company
pursuant to either Section 2.01 or 2.11.


 


“Event of Default” means, with respect to Securities of a particular
series any event specified in Section 6.01, continued for the period of
time, if any, therein designated.


 


2

















 


“Global Security” means, with respect to any series of Securities, a
Security executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary’s instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.


 


“Governmental Obligations” means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America that, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of or interest on
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary receipt; provided, however, that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by
the custodian in respect of the Governmental Obligation or the specific payment
of principal of or interest on the Governmental Obligation evidenced by such
depositary receipt.


 


“herein”, “hereof” and “hereunder”, and other words of
similar import, refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.


 


“Indenture” means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into in accordance with the terms hereof.


 


“Interest Payment Date”, when used with respect to any installment of
interest on a Security of a particular series, means the date specified in such
Security or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Securities of that series is due and payable.


 


“Officers’ Certificate” means a certificate signed by two of the
following officers: the President, any Senior Vice President, any Executive
Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company that is delivered to the
Trustee in accordance with the terms hereof. Each such certificate shall
include the statements provided for in Section 13.07, if and to the extent
required by the provisions thereof.


 


“Opinion of Counsel” means an opinion in writing of legal counsel, who
may be an employee of or counsel for the Company or its external manager, if
any, that is delivered to the Trustee in accordance with the terms hereof. Each
such opinion shall include the statements provided for in Section 13.07,
if and to the extent required by the provisions thereof.


 


“Outstanding”, when used with reference to Securities of any series,
means, subject to the provisions of Section 8.04, as of any particular
time, all Securities of that series theretofore authenticated and delivered by
the Trustee under this Indenture, except (a) Securities theretofore 


 


3

















 


canceled by the Trustee or any paying agent, or delivered to the
Trustee or any paying agent for cancellation or that have previously been
canceled; (b) Securities or portions thereof for the payment or redemption of
which moneys or Governmental Obligations in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided, however,
that if such Securities or portions of such Securities are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as in Article
Three provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and (c) Securities in lieu of or in substitution for
which other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.07.


 


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


 


“Predecessor Security” of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.07 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.


 


“Responsible Officer” when used with respect to the Trustee means the
Chairman of the Board of Directors, the Chairman, any Vice President, the
Secretary, the Treasurer, any trust officer, any corporate trust officer or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.


 


“Securities” means the debt Securities authenticated and delivered
under this Indenture.


 


“Securityholder”, “holder of Securities”, “registered holder”, or other
similar term, means the Person or Persons in whose name or names a particular
Security shall be registered on the books of the Company kept for that purpose
in accordance with the terms of this Indenture.


 


“Subsidiary” means, with respect to any Person, (i) any
corporation at least a majority of whose outstanding Voting Stock shall at the
time be owned, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any
general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned
by such Person, or by one or more of its Subsidiaries, or by such Person and
one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939, as
amended, subject to the provisions of Sections 9.01, 9.02, and 10.01, as in
effect at the date of execution of this instrument.


 


“Trustee” means [ ], and, subject to the provisions of Article Seven,
shall also include its successors and assigns, and, if at any time there is
more than one Person acting in such capacity 


 


4

















 


hereunder, “Trustee” shall mean each such Person. The term “Trustee” as
used with respect to a particular series of the Securities shall mean the
trustee with respect to that series.


 


“Voting Stock”, as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only
by reason of the occurrence of a contingency.


 


ARTICLE II.


 


ISSUE, DESCRIPTION,
TERMS, EXECUTION,

REGISTRATION AND EXCHANGE OF SECURITIES


 


SECTION 2.01                                            Designation and Terms of Securities.


 


(a)                                  The aggregate principal amount of
Securities that may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more series up to the
aggregate principal amount of Securities of that series from time to time
authorized by or pursuant to a Board Resolution of the Company or pursuant to
one or more indentures supplemental hereto. 
Prior to the initial issuance of Securities of any series, there shall
be established in or pursuant to a Board Resolution of the Company, and set
forth in an Officers’ Certificate of the Company, or established in one or more
indentures supplemental hereto:


 


(1)                                  the title of the Security of the series
(which shall distinguish the Securities of the series from all other
Securities);


 


(2)                                  any limit upon the aggregate principal
amount of the Securities of that series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of that series);


 


(3)                                  the date or dates on which the principal
of the Securities of the series is payable;


 


(4)                                  the rate or rates at which the Securities
of the series shall bear interest or the manner of calculation of such rate or
rates, if any;


 


(5)                                  the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest will
be payable or the manner of determination of such Interest Payment Dates and
the record date for the determination of holders to whom interest is payable on
any such Interest Payment Dates;


 


(6)                                  the right, if any, to extend the interest
payment periods and the duration of such extension;


 


5














 


(7)                        the
period or periods within which, the price or prices at which and the terms and
conditions upon which, Securities of the series may be redeemed, in whole or in
part, at the option of the Company;


 


(8)                        the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions (including payments
made in cash in participation of future sinking fund obligations) or at the
option of a holder thereof and the period or periods within which, the price or
prices at which, and the terms and conditions upon which, Securities of the
series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;


 


(9)                        the
subordination terms of the Securities of the series;


 


(10)                  the
form of the Securities of the series including the form of the Certificate of
Authentication for such series;


 


(11)                  if
other than denominations of one thousand U.S. dollars ($1,000) or any integral
multiple thereof, the denominations in which the Securities of the series shall
be issuable;


 


(12)                  any
and all other terms with respect to such series (which terms shall not be
inconsistent with the terms of this Indenture) including any terms which may be
required by or advisable under United States laws or regulations or advisable
in connection with the marketing of Securities of that series;


 


(13)                  whether
the Securities are issuable as a Global Security and, in such case, the
identity for the Depositary for such series;


 


(14)                  whether
the Securities will be convertible into shares of common stock or other
securities of the Company and, if so, the terms and conditions upon which such
Securities will be so convertible, including the conversion price and the
conversion period;


 


(15)                  if
the amount of payments of principal of and any premium or interest on the
Securities of the series may be determined with reference to an index, the
manner in which such amounts shall be determined;


 


(16)                  if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.01;


 


(17)                  any
additional or different Events of Default or restrictive covenants provided for
with respect to the Securities of the series;


 


(18)                  any
provisions granting special rights to holders when a specified event occurs;
and


 


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(19)                  any
special tax implications of the notes, including provisions for original issue
discount securities, if offered.


 


All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to any such Board Resolution or in any indentures supplemental hereto.


 


If any of the terms of the series are established by action taken
pursuant to a Board Resolution of the Company, a copy of an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers’ Certificate of the Company setting forth the terms of the series.


 


Securities of any particular series may be issued at various times,
with different dates on which the principal or any installment of principal is
payable, with different rates of interest, if any, or different methods by
which rates of interest may be determined, with different dates on which such
interest may be payable and with different redemption dates. Unless otherwise
provided, a series may be reopened for issuances of additional Securities of
such series.


 


SECTION 2.02                    Form of
Securities and Trustee’s Certificate.


 


The Securities of any series and the Trustee’s certificate of
authentication to be borne by such Securities shall be substantially of the
tenor and purport as set forth in one or more indentures supplemental hereto or
as provided in a Board Resolution of the Company and as set forth in an
Officers’ Certificate of the Company and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which Securities of that series may be listed, or to conform to usage.


 


SECTION 2.03                    Denominations;
Provisions for Payment.


 


The Securities shall be issuable as registered Securities and in the
denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, subject to Section 2.01(11). The Securities of a particular
series shall bear interest payable on the dates and at the rate specified with
respect to that series. The principal of and the interest on the Securities of
any series, as well as any premium thereon in case of redemption thereof prior
to maturity, shall be payable in the coin or currency of the United States of
America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Security shall be dated the
date of its authentication. Interest on the Securities shall be computed on the
basis of a 360-day year composed of twelve 30-day months.


 


The interest installment on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series shall be paid to the Person in whose name said
Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Security of a particular series or portion thereof is called for
redemption and the redemption date


 


7

















 


is subsequent to a regular record date with respect to
any Interest Payment Date and prior to such Interest Payment Date, interest on
such Security will be paid upon presentation and surrender of such Security as
provided in Section 3.03.


 


Any interest on any Security that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Securities of the
same series (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company, at its election, as provided in clause (1) or clause (2) below:


 


(1)                        The
Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Company
of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
special record date therefor to be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the Security Register (as
hereinafter defined), not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their
respective Predecessor Securities) are registered on such special record date
and shall be no longer payable pursuant to the following clause (2).


 


(2)                        The
Company may make payment of any Defaulted Interest on any Securities in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall
be deemed practicable by the Trustee.


 


Unless otherwise set forth in a Board Resolution of the Company or one or
more indentures supplemental hereto establishing the terms of any series of
Securities pursuant to Section 2.01 hereof, the term “regular record date”
as used in this Section with respect to a series of Securities with
respect to any Interest Payment Date for such series shall mean either the
fifteenth day of the month immediately preceding the month in which an Interest
Payment Date


 


8

















 


established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the first day of a month,
or the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.


 


Subject to the foregoing provisions of this Section, each Security of a
series delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Security of such series shall carry the rights to interest
accrued and unpaid, and to accrue, that were carried by such other Security.


 


SECTION 2.04                    Execution
and Authentications.


 


The Securities shall be signed on behalf of the Company by two of its
officers, under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. Signatures may be in the form of a manual or facsimile
signature. The Company may use the facsimile signature of any Person who shall
have been an officer thereof, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered or disposed of such Person
shall have ceased to be such officer of the Company. The seal of the Company
may be in the form of a facsimile of such seal and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. The Securities may contain
such notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication by the Trustee.


 


A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such
signature shall be conclusive evidence that the Security so authenticated has
been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.


 


At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a written order of
the Company for the authentication and delivery of such Securities, signed by
two of its officers in accordance with such written order shall authenticate
and deliver such Securities.


 


In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall
be fully protected in relying upon, an Opinion of Counsel stating that the form
and terms thereof have been established in conformity with the provisions of
this Indenture.


 


The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner that is not reasonably acceptable to the Trustee.


 


SECTION 2.05                    Registration
of Transfer and Exchange.


 


(a)                                  Securities
of any series may be exchanged upon presentation thereof at the office or
agency of the Company designated for such purpose in the Borough of Manhattan,
the City


 


9

















 


and State of New York, for other Securities of such
series of authorized denominations, and for a like aggregate principal amount,
upon payment of a sum sufficient to cover any tax or other governmental charge
in relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Securityholder making
the exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.


 


(b)                                 The
Company shall keep, or cause to be kept, at its office or agency designated for
such purpose in the Borough of Manhattan, the City and State of New York, or
such other location designated by the Company a register or registers (herein
referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities and
the transfers of Securities as in this Article provided and which at all
reasonable times shall be open for inspection by the Trustee. The registrar for
the purpose of registering Securities and transfer of Securities as herein
provided shall be appointed as authorized by Board Resolution (the “Security
Registrar”).


 


Upon surrender for transfer of any Security at the office or agency of
the Company designated for such purpose, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as
the Security presented for a like aggregate principal amount.


 


All Securities presented or surrendered for exchange or registration of
transfer, as provided in this Section, shall be accompanied (if so required by
the Company or the Security Registrar) by a written instrument or instruments
of transfer, in form satisfactory to the Company or the Security Registrar,
duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.


 


(c)                                  No
service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any
series, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge in relation thereto, other than exchanges
pursuant to Section 2.06, the second paragraph of Section 3.03 and Section 9.04
not involving any transfer.


 


(d)                                 The
Company shall not be required (i) to issue, exchange or register the
transfer of any Securities during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of less than
all the Outstanding Securities of the same series and ending at the close of
business on the day of such mailing, nor (ii) to register the transfer of
or exchange any Securities of any series or portions thereof called for
redemption. The provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.


 


SECTION 2.06                    Temporary
Securities.


 


Pending the preparation of definitive Securities of any series, the
Company may execute, and the Trustee shall authenticate and deliver, temporary
Securities (printed, lithographed or typewritten) of any authorized
denomination. Such temporary Securities shall be substantially in


 


10

















 


the form of the definitive Securities in lieu of which
they are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Company.
Every temporary Security of any series shall be executed by the Company and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities of such series.
Without unnecessary delay the Company will execute and will furnish definitive
Securities of such series and thereupon any or all temporary Securities of such
series may be surrendered in exchange therefor (without charge to the holders),
at the office or agency of the Company designated for the purpose in the
Borough of Manhattan, the City and State of New York, and the Trustee shall
authenticate and such office or agency shall deliver in exchange for such
temporary Securities an equal aggregate principal amount of definitive
Securities of such series, unless the Company advises the Trustee to the effect
that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such
series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series authenticated and delivered hereunder.


 


SECTION 2.07                    Mutilated,
Destroyed, Lost or Stolen Securities.


 


In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company (subject to the next succeeding
sentence) shall execute, and upon the Company’s request the Trustee (subject as
aforesaid) shall authenticate and deliver, a new Security of the same series,
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same
upon the written request or authorization of any officer of the Company. Upon
the issuance of any substituted Security, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Security that has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated Security) if the applicant for such payment shall furnish to the
Company and the Trustee such security or indemnity as they may require to save
them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft
of such Security and of the ownership thereof.


 


Every replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time,
or be enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and owned upon
the express condition that the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities,
and shall preclude (to


 


11

















 


the extent lawful) any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.


 


SECTION 2.08                    Cancellation.


 


All Securities surrendered for the purpose of payment, redemption,
exchange or registration of transfer shall, if surrendered to the Company or any
paying agent, be delivered to the Trustee for cancellation, or, if surrendered
to the Trustee, shall be cancelled by it, and no Securities shall be issued in
lieu thereof except as expressly required or permitted by any of the provisions
of this Indenture. On request of the Company at the time of such surrender, the
Trustee shall deliver to the Company canceled Securities held by the Trustee.
In the absence of such request the Trustee may dispose of canceled Securities
in accordance with its standard procedures and deliver a certificate of
disposition to the Company. If the Company shall otherwise acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.


 


SECTION 2.09                    Benefits
of Indenture.


 


Nothing in this Indenture or in the Securities, express or implied,
shall give or be construed to give to any Person, other than the parties hereto
and the holders of the Securities (and, with respect to the provisions of Article Fourteen,
the holders of Senior Indebtedness) any legal or equitable right, remedy or
claim under or in respect of this Indenture, or under any covenant, condition
or provision herein contained; all such covenants, conditions and provisions
being for the sole benefit of the parties hereto and of the holders of the
Securities (and, with respect to the provisions of Article Fourteen, the
holders of Senior Indebtedness).


 


SECTION 2.10                    Authenticating
Agent.


 


So long as any of the Securities of any series remain Outstanding there
may be an Authenticating Agent for any or all such series of Securities which
the Trustee shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. All references in this Indenture to the authentication of
Securities by the Trustee shall be deemed to include authentication by an
Authenticating Agent for such series. Each Authenticating Agent shall be
acceptable to the Company and shall be a corporation that has a combined
capital and surplus, as most recently reported or determined by it, sufficient
under the laws of any jurisdiction under which it is organized or in which it is
doing business to conduct a trust business, and that is otherwise authorized
under such laws to conduct such business and is subject to supervision or
examination by Federal or State authorities. If at any time any Authenticating
Agent shall cease to be eligible in accordance with these provisions, it shall
resign immediately.


 


12

















 


Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint
an eligible successor Authenticating Agent acceptable to the Company. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder as if originally named as an Authenticating Agent pursuant hereto.


 


SECTION 2.11                    Global
Securities.


 


(a)               If the Company
shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall
execute and the Trustee shall, in accordance with Section 2.04,
authenticate and deliver, a Global Security that (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series, (ii) shall be registered
in the name of the Depositary or its nominee, (iii) shall be delivered by
the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall
bear a legend substantially to the following effect: “Except as otherwise
provided in Section 2.11 of the Indenture, this Security may be
transferred, in whole but not in part, only to another nominee of the
Depositary or to a successor Depositary or to a nominee of such successor
Depositary.”


 


(b)              Notwithstanding the
provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section 2.05,
only to another nominee of the Depositary for such series, or to a successor
Depositary for such series selected or approved by the Company or to a nominee
of such successor Depositary.


 


(c)               If at any time the
Depositary for a series of the Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such series or if at any time
the Depositary for such series shall no longer be registered or in good
standing under the Exchange Act, or other applicable statute or regulation, and
a successor Depositary for such series is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, this Section 2.11 shall no longer be
applicable to the Securities of such series and the Company will execute, and
subject to Section 2.05, the Trustee will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. In addition, the Company may at any time determine that the
Securities of any series shall no longer be represented by a Global Security
and that the provisions of this Section 2.11 shall no longer apply to the
Securities of such series. In such event the Company will execute and subject
to Section 2.05, the Trustee, upon receipt of an Officers’ Certificate
evidencing such determination by the Company, will authenticate and deliver the
Securities of such series in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security of such series in exchange for such
Global Security. Upon the exchange of the Global Security for such Securities
in definitive registered form without coupons, in authorized denominations, the
Global Security shall be 


 


13

















 


canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Depositary for delivery to the Persons in whose names such
Securities are so registered.


 


ARTICLE III.


 


REDEMPTION OF SECURITIES
AND

SINKING FUND PROVISIONS


 


SECTION 3.01                    Redemption.


 


The Company may redeem the Securities of any series issued hereunder on
and after the dates and in accordance with the terms established for such
series pursuant to Section 2.01 hereof.


 


SECTION 3.02                    Notice
of Redemption.


 


(a)                                  In
case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Securities of any series in accordance with the
right reserved so to do, the Company shall, or shall cause the Trustee to, give
notice of such redemption to holders of the Securities of such series to be
redeemed by mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 90 days before the date fixed for
redemption of that series to such holders at their last addresses as they shall
appear upon the Security Register unless a shorter period is specified in the
Securities to be redeemed. Any notice that is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers’ Certificate evidencing compliance with
any such restriction.


 


Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities of that series are to
be redeemed, and shall state that payment of the redemption price of such
Securities to be redeemed will be made at the office or agency of the Company
in the Borough of Manhattan, the City and State of New York, upon presentation
and surrender of such Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a series are to
be redeemed, the notice to the holders of Securities of that series to be
redeemed in whole or in part shall specify the particular Securities to be so
redeemed. In case any Security is to be redeemed in part only, the notice that
relates to such Security shall state the portion of the principal amount
thereof to be redeemed, and shall state that on and after


 


14

















 


the redemption date, upon surrender of such Security,
a new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.


 


(b)                                 If
less than all the Securities of a series are to be redeemed, the Company shall
give the Trustee at least 35 days’ notice in advance of the date fixed for
redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.


 


The Company may, if and whenever it shall so elect, by delivery of
instructions signed on its behalf by two of its officers, instruct the Trustee
or any paying agent to call all or any part of the Securities of a particular
series for redemption and to give notice of redemption in the manner set forth
in this Section, such notice to be in the name of the Company or its own name
as the Trustee or such paying agent may deem advisable. In any case in which
notice of redemption is to be given by the Trustee or any such paying agent,
the Company shall deliver or cause to be delivered to, or permit to remain
with, the Trustee or such paying agent, as the case may be, such Security
Register, transfer books or other records, or suitable copies or extracts
therefrom, sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this Section.


 


SECTION 3.03                    Payment
Upon Redemption.


 


(a)                                  If
the giving of notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion
thereof. On presentation and surrender of such Securities on or after the date
fixed for redemption at the place of payment specified in the notice, said
Securities shall be paid and redeemed at the applicable redemption price for
such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).


 


(b)                                 Upon
presentation of any Security of such series that is to be redeemed in part
only, the Company shall execute and the Trustee shall authenticate and the
office or agency where the Security is presented shall deliver to the holder
thereof, at the expense of the Company, a new Security of the same series of
authorized denominations in principal amount equal to the unredeemed portion of
the Security so presented.


 


15














 


SECTION 3.04                    Sinking
Fund.


 


The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to
any sinking fund for the retirement of Securities of a series, except as
otherwise specified as contemplated by Section 2.01 for Securities of such
series.


 


The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a “mandatory sinking
fund payment,” and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an “optional
sinking fund payment”. If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.05. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.


 


SECTION 3.05                    Satisfaction
of Sinking Fund Payments with Securities.


 


The Company (i) may deliver Outstanding Securities of a series (other
than any Securities previously called for redemption) and (ii) may apply
as a credit Securities of a series that have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series, provided that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the redemption price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.


 


SECTION 3.06                    Redemption
of Securities for Sinking Fund.


 


Not less than 35 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of the series, the portion thereof, if any,
that is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 3.05 and the basis for such credit and will, together
with such Officers’ Certificate, deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 3.02 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.02. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 3.03.


 


16

















 


ARTICLE IV.


 


CERTAIN COVENANTS


 


SECTION 4.01                    Payment
of Principal, Premium and Interest.


 


The Company will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest on the Securities of that
series at the time and place and in the manner provided herein and established
with respect to such Securities.


 


SECTION 4.02                    Maintenance
of Office or Agency.


 


So long as any series of the Securities remain Outstanding, the Company
agrees to maintain an office or agency in the Borough of Manhattan, the City
and State of New York, with respect to each such series and at such other
location or locations as may be designated as provided in this Section 4.02,
where (i) Securities of that series may be presented for payment, (ii) Securities
of that series may be presented as hereinabove authorized for registration of
transfer and exchange, and (iii) notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by one of its officers
and delivered to the trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive all such presentations, notices and
demands.


 


SECTION 4.03                    Paying
Agents.


 


(a)                                  If
the Company shall appoint one or more paying agents for all or any series of
the Securities, other than the Trustee, the Company will cause each such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section:


 


(1)                                  that
it will hold all sums held by it as such agent for the payment of the principal
of (and premium, if any) or interest on the Securities of that series (whether
such sums have been paid to it by the Company or by any other obligor of such
Securities) in trust for the benefit of the Persons entitled thereto;


 


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


 


(3)                                  that
it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying agent;
and


 


17

















 


(4)                                  that
it will perform all other duties of paying agent as set forth in this
Indenture.


 


(b)                                 If
the Company shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and
premium, if any) or interest on Securities of that series, set aside, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay such principal (and premium, if any) or interest so becoming
due on Securities of that series until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the
Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more
paying agents for any series of Securities, it will, prior to each due date of
the principal of (and premium, if any) or interest on any Securities of that
series, deposit with the paying agent a sum sufficient to pay the principal (an
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.


 


(c)                                  Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold
sums in trust as provided in this Section is subject to the provisions of Section 11.05,
and (ii) the Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any paying agent to pay, to the Trustee all sums held in trust by the
Company or such paying agent, such sums to be held by the Trustee upon the same
terms and conditions as those upon which such sums were held by the Company or
such paying agent; and, upon such payment by any paying agent to the Trustee,
such paying agent shall be released from all further liability with respect to
such money.


 


SECTION 4.04                    Appointment
to Fill Vacancy in Office of Trustee.


 


The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.10, a
Trustee, so that there shall at all times be a Trustee hereunder.


 


SECTION 4.05                    Compliance
with Consolidation Provisions.


 


The Company will not, while any of the Securities remain Outstanding,
consolidate with, or merge into, or merge into itself, or sell or convey all or
substantially all of its property to any other company unless the provisions of
Article Ten hereof are complied with.


 


ARTICLE V.


 


SECURITYHOLDERS’ LISTS
AND REPORTS

BY THE COMPANY AND THE TRUSTEE


 


SECTION 5.01                    Company
to Furnish Trustee Names and Addresses of Securityholders.


 


The Company will furnish or cause to be furnished to the Trustee (a) on
a monthly basis on each regular record date (as defined in Section 2.03) a
list, in such form as the may reasonably require, of the names and addresses of
the holders of each series of Securities as of such regular 


 


18

















 


record date, provided that the Company shall not be
obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may
request in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished; provided, however, that, in either
case, no such list need be furnished for any series for which the Trustee shall
be the Security Registrar.


 


SECTION 5.02                    Preservation
of Information; Communications with Securityholders.


 


(a)                                  The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities
contained in the most recent list furnished to it as provided in Section 5.01
and as to the names and addresses of holders of Securities received by the
Trustee in its capacity as Security Registrar (if acting in such capacity).


 


(b)                                 The
Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.


 


(c)                                  Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture
Act with other Securityholders with respect to their rights under this
Indenture or under the Securities.


 


SECTION 5.03                    Reports
by the Company.


 


(a)                                  The
Company covenants and agrees to file with the Trustee, within 30 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) that the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Exchange Act; or, if the Company is not required to file information, documents
or reports pursuant to either of such sections, then to file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary and
periodic information, documents and reports that may be required pursuant to Section 13
of the Exchange Act, in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations.


 


(b)                                 The
Company covenants and agrees to file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.


 


(c)                                  The
Company covenants and agrees to transmit by mail, first class postage prepaid,
or reputable over-night delivery service that provides for evidence of receipt,
to the Securityholders, as their names and addresses appear upon the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and 


 


19

















 


reports required to be filed by the Company pursuant
to subsections (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.


 


SECTION 5.04                    Reports
by the Trustee.


 


(a)                                  On
or before July 15 in each year in which any of the Securities are
Outstanding, the Trustee shall transmit by mail, first class postage prepaid,
to the Securityholders, as their names and addresses appear upon the Security
Register, a brief report dated as of the preceding May 15, if and to the
extent required under Section 313(a) of the Trust Indenture Act.


 


(b)                                 The
Trustee shall comply with Section 313(b) and 313(c) of the Trust
Indenture Act.


 


(c)                                  A
copy of each such report shall, at the time of such transmission to
Securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the
Commission. The Company agrees to notify the Trustee when any Securities become
listed on any stock exchange.


 


ARTICLE VI.


 


REMEDIES OF THE TRUSTEE
AND

SECURITYHOLDERS ON EVENT OF DEFAULT


 


SECTION 6.01                    Events
of Default.


 


(a)                                  Whenever
used herein with respect to Securities of a particular series, “Event of
Default” means any one or more of the following events that has occurred and is
continuing:


 


(1)                                  the
Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable,
and continuance of such default for a period of 90 days; provided, however,
that a valid extension of an interest payment period by the Company in
accordance with the terms of any indenture supplemental hereto, shall not
constitute a default in the payment of interest for this purpose;


 


(2)                                  the
Company defaults in the payment of the principal of (or premium, if any, on)
any of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or
in any payment required by any sinking or analogous fund established with
respect to that series; provided, however, that a valid extension of the
maturity of such Securities in accordance with the terms of any indenture
supplemental hereto shall not constitute a default in the payment of principal
or premium, if any;


 


(3)                                  the
Company fails to observe or perform any other of its covenants or agreements
with respect to that series contained in this Indenture or otherwise
established with respect to that series of Securities pursuant to Section 2.01
hereof (other than a covenant or agreement that has been expressly included in
this Indenture solely for the benefit of one or more series of Securities other
than such series) for a period of 90 days 


 


20

















 


after the date on
which written notice of such failure, requiring the same to be remedied and
stating that such notice is a “Notice of Default” hereunder, shall have been
given to the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount of
the Securities of that series at the time Outstanding;


 


(4)                                  the
Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences
a voluntary case, (ii) consents to the entry of an order for relief
against it in an involuntary case, (iii) consents to the appointment of a
Custodian of it or for all or substantially all of its property or (iv) makes
a general assignment for the benefit of its creditors; or


 


(5)                                  a
court of competent jurisdiction enters an order under any Bankruptcy Law that (i) is
for relief against the Company in an involuntary case, (ii) appoints a
Custodian of the Company for all or substantially all of their respective
property, or (iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days.


 


(b)                                 In
each and every such case, unless the principal of all the Securities of that
series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of
that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by such Securityholders), may declare the principal
of all the Securities of that series to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due
and payable, notwithstanding anything contained in this Indenture or in the
Securities of that series or established with respect to that series pursuant
to Section 2.01 to the contrary.


 


(c)                                  At
any time after the principal of the Securities of that series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
the holders of a majority in aggregate principal amount of the Securities of
that series then Outstanding hereunder, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if: (i) the
Company has paid or deposited with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of that series and the
principal of (and premium, if any, on) any and all Securities of that series
that shall have become due otherwise than by acceleration (with interest upon
such principal and premium, if any, and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Securities of that series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and (ii) any and all Events of Default under the Indenture with respect to
such series, other than the nonpayment of principal on Securities of that
series that shall not have become due by their terms, shall have been remedied
or waived as provided in Section 6.06.


 


No such rescission and annulment shall extend to or shall affect any
subsequent default or impair any right consequent thereon.


 


21

















 


(d)                                 In
case the Trustee shall have proceeded to enforce any right with respect to
Securities of that series under this Indenture and such proceedings shall have
been discontinued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the Trustee, then
and in every such case the Company, and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.


 


SECTION 6.02                    Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


(a)                                  The
Company covenants that (1) in case it shall default in the payment of any
installment of interest on any of the Securities of a series, or any payment
required by any sinking or analogous fund established with respect to that
series as and when the same shall have become due and payable, and such default
shall have continued for a period of 90 Business Days, or (2) in case it
shall default in the payment of the principal of (or premium, if any, on) any
of the Securities of a series when the same shall have become due and payable,
whether upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, then, upon demand of the Trustee, the Company will
pay to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the
case may be, with interest upon the overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under applicable
law) upon overdue installments of interest at the rate per annum expressed in
the Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.


 


(b)                                 If
the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for
the collection of the sums so due and unpaid, and may prosecute any such action
or proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Securities of that
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or other obligor upon the
Securities of that series, wherever situated.


 


(c)                                  In
case of any receivership, insolvency, liquidation, bankruptcy, reorganization,
readjustment, arrangement, composition or judicial proceedings affected the
Company, or its creditors or property, the Trustee shall have power to
intervene in such proceedings and take any action therein that may be permitted
by the court and shall (except as may be otherwise provided by law) be entitled
to file such proofs of claim and other papers and documents as may be necessary
or advisable in order to have the claims of the Trustee and of the holders of
Securities of such series allowed for the entire amount due and payable by the
Company under the Indenture at the date of institution of such proceedings and
for any additional amount that may become due and payable by the Company after
such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction
of the amount payable to the Trustee under Section 7.06; and any receiver,
assignee or trustee in bankruptcy or reorganization is hereby authorized by
each of the holders of Securities 


 


22

















 


of such series to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to such Securityholders, to pay to the Trustee any amount due it under
Section 7.06.


 


(d)                                 All
rights of action and of asserting claims under this Indenture, or under any of
the terms established with respect to Securities of that series, may be
enforced by the Trustee without the possession of any of such Securities, or
the production thereof at any trial or other proceeding relative thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall,
after provision for payment to the Trustee of any amounts due under Section 7.06,
be for the ratable benefit of the holders of the Securities of such series.


 


In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in the Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.


 


Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of that series or the rights of any holder thereof or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.


 


SECTION 6.03                    Application
of Moneys Collected.


 


Any moneys collected by the Trustee pursuant to this Article with
respect to a particular series of Securities shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Securities of that series, and notation
thereon the payment, if only partially paid, and upon surrender thereof if
fully paid:


 


FIRST: To the
payment of costs and expenses of collection and of all amounts payable to the
Trustee under Section 7.06;


 


SECOND: To the
payment of all Senior Indebtedness of the Company if and to the extent required
by Article Fourteen; and


 


THIRD: To the
payment of the amounts then due and unpaid upon Securities of such series for
principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively.


 


23

















 


SECTION 6.04                    Limitation
on Suits.


 


No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any suit, action
or proceeding in equity or at law upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (i) such holder previously shall have given to
the Trustee written notice of an Event of Default and of the continuance
thereof with respect to the Securities of such series specifying such Event of
Default, as hereinbefore provided; (ii) the holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceeding in its own name as trustee hereunder; (iii) such holder or
holders shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby; and (iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity, shall have failed to institute any such
action, suit or proceeding and (v) during such 60 day period, the holders
of a majority in principal amount of the Securities of that series do not give
the Trustee a direction inconsistent with the request.


 


Notwithstanding anything contained herein to the contrary, any other
provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of (and premium, if any) and interest on such
Security, as therein provided, on or after the respective due dates expressed
in such Security (or in the case of redemption, on the redemption date), or to
institute suit for the enforcement of any such payment on or after such
respective dates or redemption date, shall not be impaired or affected without
the consent of such holder and by accepting a Security hereunder it is
expressly understood, intended and covenanted by the taker and holder of every
Security of such series with every other such taker and holder and the Trustee,
that no one or more holders of Securities of such series shall have any right
in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the holders of any
other of such Securities, or to obtain or seek to obtain priority over or preference
to any other such holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all holders of Securities of such series. For the protection and enforcement of
the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.


 


SECTION 6.05                    Rights
and Remedies Cumulative; Delay or Omission Not Waiver.


 


(a)                                  Except
as otherwise provided in Section 2.07, all powers and remedies given by
this Article to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers
and remedies available to the Trustee or the holders of the Securities, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture or otherwise
established with respect to such Securities.


 


(b)                                 No
delay or omission of the Trustee or of any holder of any of the Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or on acquiescence therein; and,
subject to the provisions of Section 6.04, every power 


 


24

















 


and remedy given by this Article or by law to the
Trustee or the Securityholders may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Securityholders.


 


SECTION 6.06                    Control
by Securityholders.


 


The holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding, determined in accordance with
Section 8.04, shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with
any rule of law or with this Indenture or be unduly prejudicial to the
rights of holders of Securities of any other series at the time Outstanding
determined in accordance with Section 8.04. Subject to the provisions of Section 7.01,
the Trustee shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would involve the Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding affected thereby,
determined in accordance with Section 8.04, may on behalf of the holders
of all of the Securities of such series waive any past default in the
performance of any of the covenants contained herein or established pursuant to
Section 2.01 with respect to such series and its consequences, except a
default in the payment of the principal of, or premium, if any, or interest on,
any of the Securities of that series as and when the same shall become due by
the terms of such Securities otherwise than by acceleration (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest and principal and any premium has been deposited with the Trustee (in
accordance with Section 6.01(c)). Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of this Indenture
and the Company, the Trustee and the holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or impair
any right consequent thereon.


 


SECTION 6.07                    Undertaking
to Pay Costs.


 


All parties to this Indenture agree, and each holder of any Securities
by such holder’s acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding more than 10% in aggregate principal amount
of the Outstanding Securities of any series, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security of such series, on or after the
respective due dates expressed in such Security or established pursuant to this
Indenture.


 


25














 


ARTICLE VII.


 


CONCERNING THE TRUSTEE


 


SECTION 7.01                    Certain
Duties and Responsibilities of Trustee.


 


(a)                                  The
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing of all Events of Default with
respect to the Securities of that series that may have occurred, shall
undertake to perform with respect to the Securities of such series such duties
and only such duties as are specifically set forth in this Indenture, and no
implied covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has
occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Securities of that series such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.


 


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


 


(1)                                  prior
to the occurrence of an Event of Default with respect to the Securities of a
series and after the curing or waiving of all such Events of Default with
respect to that series that may have occurred:


 


(i) the duties and obligations of the Trustee shall with respect
to the Securities of such series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the
Securities of such series except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and


 


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


 


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


 


(3)                                  the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of
not less than a majority in principal amount of the Securities of any series at
the time Outstanding 


 


26

















 


relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee under
this Indenture with respect to the Securities of that series; and


 


(4)                                  None
of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.


 


SECTION 7.02                    Certain
Rights of Trustee.


 


Except as otherwise provided in Section 7.01:


 


(a)                                  The
Trustee may rely and shall be protected in acting or refraining from acting
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;


 


(b)                                 Any
request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the
name of the Company, by the Chairman or any Vice President and by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof
(unless other evidence in respect thereof is specifically prescribed herein);


 


(c)                                  The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted hereunder in good faith and
in reliance thereon;


 


(d)                                 The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders, pursuant to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby; nothing contained herein shall, however, relieve the
Trustee of the obligation, upon the occurrence of an Event of Default with
respect to a series of the Securities (that has not been cured or waived) to
exercise with respect to Securities of that series such of the rights and
powers vested in it by this Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;


 


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


 


(f)                                    The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security, or other papers or
documents, unless requested in 


 


27

















 


writing so to do by the holders of not less than a
majority in principal amount of the Outstanding Securities of the particular series
affected thereby (determined as provided in Section 8.04); provided,
however, that if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding. The reasonable expense of every
such examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; and


 


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


 


SECTION 7.03                    Trustee
Not Responsible for Recitals or Issuance or Securities.


 


(a)                                  The
recitals contained herein and in the Securities shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same.


 


(b)                                 The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.


 


(c)                                  The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or
for the use or application of any moneys received by any paying agent other
than the Trustee.


 


SECTION 7.04                    May Hold
Securities.


 


The Trustee or any paying agent or Security Registrar, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, paying agent or
Security Registrar.


 


SECTION 7.05                    Moneys
Held in Trust.


 


Subject to the provisions of Section 11.05, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon.


 


SECTION 7.06                    Compensation
and Reimbursement.


 


(a)                                  The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be
entitled to, such reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), as the Company, and the Trustee 


 


28

















 


may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in
the exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee and arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim of liability in
the premises.


 


(b)                                 The
obligations of the Company under this Section to compensate and indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities.


 


SECTION 7.07                    Reliance
on Officers’ Certificate.


 


Except as otherwise provided in Section 7.01, whenever in the
administration of the provisions of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers’ Certificate delivered to
the Trustee and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted to be taken by it under the provisions of this
Indenture upon the faith thereof.


 


SECTION 7.08                    Disqualification;
Conflicting Interests.


 


If the Trustee has or shall acquire any “conflicting interest” within
the meaning of Section 310(b) of the Trust Indenture Act, the Trustee
and the Company shall in all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.


 


SECTION 7.09                    Corporate
Trustee Required; Eligibility.


 


There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing
business under the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or other Person
permitted to act as trustee by the Commission, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or 


 


29

















 


examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the
Company, serve as Trustee. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.


 


SECTION 7.10                    Resignation
and Removal; Appointment of Successor.


 


(a)                                  The
Trustee or any successor hereafter appointed, may at any time resign with
respect to the Securities of one or more series by giving written notice
thereof to the Company and by transmitting notice of resignation by mail, first
class postage prepaid, to the Securityholders of such series, as their names
and addresses appear upon the Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with
respect to Securities of such series by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor trustee with respect to Securities of such series, or any
Securityholder of that series who has been a bona fide holder of a Security or
Securities for at least six months may on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.


 


(b)                                 In
case at any time any one of the following shall occur:


 


(1)                                  the
Trustee shall fail to comply with the provisions of Section 7.08 after
written request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months; or


 


(2)                                  the
Trustee shall cease to be eligible in accordance with the provisions of Section 7.09
and shall fail to resign after written request therefor by the Company or by
any such Securityholder; or


 


(3)                                  the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then,
in any such case, the Company may remove the Trustee with respect to all
Securities and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor trustee,
or, unless the Trustee’s duty to resign is stayed as provided herein, any
Securityholder who has been a bona fide holder of a Security or Securities for
at least six months may, on behalf of that holder and all others similarly
situated, petition any court 


 


30

















 


of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.


 


(c)                                  The
holders of a majority in aggregate principal amount of the Securities of any
series at the time Outstanding may at any time remove the Trustee with respect
to such series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the Company.


 


(d)                                 Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.11.


 


(e)                                  Any
successor trustee appointed pursuant to this Section may be appointed with
respect to the Securities of one or more series or all of such series, and at any
time there shall be only one Trustee with respect to the Securities of any
particular series.


 


SECTION 7.11                    Acceptance
of Appointment By Successor.


 


(a)                                  In
case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor trustee all the rights, powers, and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor trustee all
property and money held by such retiring Trustee hereunder.


 


(b)                                 In
case of the appointment hereunder of a successor trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor trustee
relates, (2) shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for 


 


31

















 


any act or failure to act on the part of any other
Trustee hereunder; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of
such successor trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture, and each such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates; but, on request of the Company or any successor trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates.


 


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


 


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


 


(e)                                  Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder
by mail, first class postage prepaid, to the Securityholders, as their names
and addresses appear upon the Security Register. If the Company fails to
transmit such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.


 


SECTION 7.12                    Merger,
Conversion, Consolidation or Succession to Business.


 


Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided that such corporation
shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.


 


SECTION 7.13                    Preferential
Collection of Claims Against the Company.


 


The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311(b) of
the Trust Indenture Act. A Trustee who has 


 


32

















 


resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent included therein.


 


ARTICLE VIII.


 


CONCERNING THE
SECURITYHOLDERS


 


SECTION 8.01                    Evidence
of Action by Securityholders.


 


Whenever in this Indenture it is provided that the holders of a
majority or specified percentage in aggregate principal amount of the
Securities of a particular series may take any action (including the making of
any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such
action the holders of such majority or specified percentage of that series have
joined therein may be evidenced by any instrument or any number of instruments
of similar tenor executed by such holders of Securities of that series in
Person or by agent or proxy appointed in writing.


 


If the Company shall solicit from the Securityholders of any series any
request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers’
Certificate, fix in advance a record date for such series for the determination
of Securityholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Securityholders of record at the
close of business on the record date shall be deemed to be Securityholders for
the purposes of determining whether Securityholders of the requisite proportion
of Outstanding Securities of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the Outstanding Securities of that series
shall be computed as of the record date; provided, however, that no such
authorization, agreement or consent by such Securityholders on the record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.


 


SECTION 8.02                    Proof
of Execution by Securityholders.


 


Subject to the provisions of Section 7.01, proof of the execution
of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of
any of the Securities shall be sufficient if made in the following manner:


 


(a)                                  The
fact and date of the execution by any such Person of any instrument may be
proved in any reasonable manner acceptable to the Trustee.


 


(b)                                 The
ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.


 


(c)                                  The
Trustee may require such additional proof of any matter referred to in this Section as
it shall deem necessary.


 


33

















 


SECTION 8.03                    Who
May be Deemed Owners.


 


Prior to the due presentment for registration of transfer of any
Security, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the Person in whose name such Security shall be registered
upon the books of the Company as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notice of
ownership or writing thereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal of,
premium, if any, and (subject to Section 2.03) interest on such Security
and for all other purposes; and neither the Company nor the Trustee nor any
paying agent nor any Security Registrar shall be affected by any notice to the
contrary.


 


SECTION 8.04                    Certain
Securities Owned by Company Disregarded.


 


In determining whether the holders of the requisite aggregate principal
amount of Securities of a particular series have concurred in any direction,
consent of waiver under this Indenture, the Securities of that series that are
owned by the Company or any other obligor on the Securities of that series or
by any Person directly or indirectly controlling or controlled by or under
common control with the Company or any other obligor on the Securities of that
series shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series that the Trustee actually knows are so owned
shall be so disregarded. The Securities so owned that have been pledged in good
faith may be regarded as Outstanding for the purposes of this Section, if the
pledgee shall establish to the satisfaction of the Trustee the pledgee’s right
so to act with respect to such Securities and that the pledgee is not a Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any such other obligor. In case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.


 


SECTION 8.05                    Actions
Binding on Future Securityholders.


 


At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of
the majority or percentage in aggregate principal amount of the Securities of a
particular series specified in this Indenture in connection with such action,
any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action
may, by filing written notice with the Trustee, and upon proof of holding as
provided in Section 8.02, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security, and of any Security issued in exchange
therefor, on registration of transfer thereof or in place thereof, irrespective
of whether or not any notation in regard thereto is made upon such Security. Any
action taken by the holders of the majority or percentage in aggregate
principal amount of the Securities of a particular series specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the holders of all the Securities of that series.


 


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ARTICLE IX.


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.01                    Supplemental
Indentures Without the Consent of Securityholders.


 


In addition to any supplemental indenture otherwise authorized by this
Indenture, the Company and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as then in effect), without the
consent of the Securityholders, for one or more of the following purposes:


 


(a)                                  to
cure any ambiguity, defect, or inconsistency herein, in the Securities of any
series;


 


(b)                                 to
comply with Article Ten;


 


(c)                                  to
provide for uncertificated Securities in addition to or in place of
certificated Securities;


 


(d)                                 to
add to the covenants of the Company for the benefit of the holders of all or
any Series of Securities (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company;


 


(e)                                  to
add to, delete from, or revise the conditions, limitations, and restrictions on
the authorized amount, terms, or purposes of issue, authentication, and
delivery of Securities, as herein set forth;


 


(f)                                    to
make any change that does not adversely affect the rights of any Securityholder
in any material respect; or


 


(g)                                 to
provide for the issuance of and establish the form and terms and conditions of
the Securities of any series as provided in Section 2.01, to establish the
form of any certifications required to be furnished pursuant to the terms of
this Indenture or any series of Securities, or to add to the rights of the
holders of any series of Securities.


 


The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations that may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
that affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.


 


Any supplemental indenture authorized by the provisions of this Section may
be executed by the Company and the Trustee without the consent of the holders
of any of the Securities at the time Outstanding, notwithstanding any of the
provisions of Section 9.02.


 


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SECTION 9.02                    Supplemental
Indentures With Consent of Securityholders.


 


With the consent (evidenced as provided in Section 8.01) of the holders
of not less than a majority in aggregate principal amount of the Securities of
each series affected by such supplemental indenture or indentures at the time
Outstanding, the Company, when authorized by Board Resolutions, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as then in effect) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner not covered by Section
9.01 the rights of the holders of the Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the holders of each Security then Outstanding and
affected thereby, (i) extend the fixed maturity of any Securities of any
series, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any premium payable upon the
redemption thereof; (ii) change any obligation to pay additional amounts; (iii)
reduce the amount of principal of an original issue discount security or any
other Security payable upon acceleration of the maturity thereof; (iv) change
currency in which any Security or any premium or interest is payable; (v) impair
the right to enforce any payment on or with respect to any Security; (vi) adversely
change the right to convert or exchange, including decreasing the conversion
rate or increasing the conversion price of, such Security (if applicable); (vii)
modify the subordination provisions in a manner adverse to the holders of such
Securities; (viii) if the Securities are secured, change the terms and
conditions pursuant to which the Securities are secured in a manner adverse to
the holders of the Securities; (ix) reduce the percentage in principal amount
of outstanding Securities of any series, the consent of whose holders is
required for modification or amendment of the indenture or for waiver of
compliance with certain provisions of the indenture or for waiver of certain
defaults; (x) reduce the requirements contained in the indenture for quorum or
voting; (xi) change any obligations of the Company to maintain an office or
agency in the places and for the purposes required by the indentures; or (xii) modify
any of the above provisions.


 


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


 


SECTION 9.03                    Effect
of Supplemental Indentures.


 


Upon the execution of any supplemental indenture pursuant to the
provisions of this Article or of Section 10.01, this Indenture shall,
with respect to such series, be and be deemed to be modified and amended in
accordance therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Securities of the series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.


 


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SECTION 9.04                    Securities
Affected by Supplemental Indentures.


 


Securities of any series, affected by a supplemental indenture,
authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of that series so modified as to conform, in the
opinion of the Board of Directors of the Company, to any modification of this
Indenture contained in any such supplemental indenture may be prepared by the
Company, authenticated by the Trustee and delivered in exchange for the
Securities of that series then Outstanding.


 


SECTION 9.05                    Execution
of Supplemental Indentures.


 


Upon the request of the Company, accompanied by its Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders required
to consent thereto as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion but shall not be
obligated to enter into such supplemental indenture. The Trustee, subject to
the provisions of Section 7.01, may receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this Article is
authorized or permitted by, and conforms to, the terms of this Article and
that it is proper for the Trustee under the provisions of this Article to
join in the execution thereof; provided, however, that such Opinion of Counsel
need not be provided in connection with the execution of a supplemental
indenture that establishes the terms of a series of Securities pursuant to Section 2.01
hereof.


 


Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Securityholders of all series affected thereby as their names and addresses
appear upon the Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.


 


ARTICLE X.


 


SUCCESSOR CORPORATION


 


SECTION 10.01              Company
May Consolidate, Etc.


 


Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations or other entity or entities (whether or not
affiliated with the Company) or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or
shall prevent any sale, conveyance, transfer or other disposition of the
property of the Company 


 


37

















 


or its successor or successors as an entirety, or
substantially as an entirety, to any other corporation or entity (whether or
not affiliated with the Company or its successor or successors) authorized to
acquire and operate the same; provided, however, the Company hereby covenants
and agrees that, upon any such consolidation, merger, sale, conveyance,
transfer or other disposition, the due and punctual payment of the principal of
(premium, if any) and interest on all of the Securities of all series in
accordance with the terms of each series, according to their tenor and the due
and punctual performance and observance of all the covenants and conditions of
this Indenture with respect to each series or established with respect to such
series pursuant to Section 2.01 to be kept or performed by the Company
shall be expressly assumed, by supplemental indenture (which shall conform to
the provisions of the Trust Indenture Act, as then in effect) satisfactory in
form to the Trustee executed and delivered to the Trustee by the entity formed
by such consolidation, or into which the Company shall have been merged, or by
the entity which shall have acquired such property.


 


SECTION 10.02              Successor
Corporation Substituted.


 


(a)                                  In
case of any such consolidation, merger, sale, conveyance, transfer or other
disposition and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the due and punctual payment of the principal of,
premium, if any, and interest on all of the Securities of all series
Outstanding and the due and punctual performance of all of the covenants and
conditions of this Indenture or established with respect to each series of the
Securities pursuant to Section 2.01 to be performed by the Company with
respect to each series, such successor corporation or entity shall succeed to
and be substituted for the Company with the same effect as if it had been named
as the Company herein, and thereupon the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the
Securities.


 


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


 


(c)                                  Nothing
contained in this Indenture or in any of the Securities shall prevent the
Company from merging into itself or acquiring by purchase or otherwise all or
any part of the property of any other Person (whether or not affiliated with
the Company).


 


SECTION 10.03              Evidence
of Consolidation, Etc. to Trustee.


 


The Trustee, subject to the provisions of Section 7.01, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.


 


38

















 


ARTICLE XI.


 


SATISFACTION AND DISCHARGE


 


SECTION 11.01              Satisfaction
and Discharge of Indenture.


 


If at any time: (a) the Company shall have delivered to the
Trustee for cancellation all Securities of a series theretofore authenticated
(other than any Securities that shall have been destroyed, lost or stolen and
that shall have been replaced or paid as provided in Section 2.07) and
Securities for whose payment money or Governmental Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company (and
thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05);
or (b) all such Securities of a particular series not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption, and the Company shall deposit
or cause to be deposited with the Trustee as trust funds the entire amount in
moneys or Governmental Obligations sufficient or a combination thereof,
sufficient in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay at maturity or upon redemption all Securities of that series not
theretofore delivered to the Trustee for cancellation, including principal (and
premium, if any) and interest due or to become due to such date of maturity or
date fixed for redemption, as the case may be, and if the Company shall also
pay or cause to be paid all other sums payable hereunder with respect to such
series by the Company then this Indenture shall thereupon cease to be of
further effect with respect to such series except for the provisions of
Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until
the date of maturity or redemption date, as the case may be, and Sections 7.06
and 11.05, that shall survive to such date and thereafter, and the Trustee, on
demand of the Company and at the cost and expense of the Company shall execute
proper instruments acknowledging satisfaction of and discharging this Indenture
with respect to such series.


 


SECTION 11.02              Discharge
of Obligations.


 


If at any time all such Securities of a particular series not
heretofore delivered to the Trustee for cancellation or that have not become
due and payable as described in Section 11.01 shall have been paid by the
Company by depositing irrevocably with the Trustee as trust funds moneys or an
amount of Governmental Obligations sufficient to pay at maturity or upon
redemption all such Securities of that series not theretofore delivered to the
Trustee for cancellation, including principal (and premium, if any) and
interest due or to become due to such date of maturity or date fixed for
redemption, as the case may be, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company with respect to such
series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company
under this Indenture with respect to such series shall cease to be of further
effect except for the provisions of Sections 2.03, 2.05, 2.07, 4,01, 4.02,
4,03, 7.06, 7.10 and 11.05 hereof that shall survive until such Securities
shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.


 


39

















 


SECTION 11.03              Deposited
Moneys to be Held in Trust.


 


All moneys or Governmental Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular series of Securities for the payment or redemption of which such
moneys or Governmental Obligations have been deposited with the Trustee.


 


SECTION 11.04              Payment
of Moneys Held by Paying Agents.


 


In connection with the satisfaction and discharge of this Indenture all
moneys or Governmental Obligations then held by any paying agent under the
provisions of this Indenture shall, upon demand of the Company, be paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys or Governmental Obligations.


 


SECTION 11.05              Repayment
to Company.


 


Any moneys or Governmental Obligations deposited with any paying agent
or the Trustee, or then held by the Company, in trust for payment of principal
of or premium or interest on the Securities of a particular series that are not
applied but remain unclaimed by the holders of such Securities for at least two
years after the date upon which the principal of (and premium, if any) or
interest on such Securities shall have respectively become due and payable,
shall be repaid to the Company on May 31 of each year or (if then held by
the Company) shall be discharged from such trust; and thereupon the paying
agent and the Trustee shall be released from all further liability with respect
to such moneys or Governmental Obligations, and the holder of any of the
Securities entitled to receive such payment shall thereafter, as an unsecured
general creditor, look only to the Company for the payment thereof.


 


ARTICLE XII.


 


IMMUNITY OF
INCORPORATORS, STOCKHOLDERS,

OFFICERS AND DIRECTORS


 


SECTION 12.01              No
Recourse.


 


No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Security, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer or
director, past, present or future as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty
or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors as such, of the Company or
of any predecessor or successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such 


 


40

















 


personal liability of every name and nature, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issuance of such
Securities.


 


ARTICLE XIII.


 


MISCELLANEOUS PROVISIONS


 


SECTION 13.01              Effect
on Successors and Assigns.


 


All the covenants, stipulations, promises and agreements in this
Indenture contained by or on behalf of the Company shall bind their respective
successors and assigns, whether so expressed or not.


 


SECTION 13.02              Actions
by Successor.


 


Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
corresponding board, committee or officer of any corporation that shall at the
time be the lawful sole successor of the Company.


 


SECTION 13.03              Surrender
of Company Powers.


 


The Company by instrument in writing executed by authority of 2/3
(two-thirds) of its Board of Directors and delivered to the Trustee may
surrender any of the powers reserved to the Company, and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.


 


SECTION 13.04              Notices.


 


Except as otherwise expressly provided herein any notice or demand that
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Securities to or on the Company may
be given or served by being deposited first class postage prepaid in a
post-office letterbox addressed (until another address is filed in writing by
the Company with the Trustee), as follows: Capital Trust, Inc., 410 Park
Avenue, 14th Floor, New York, NY 10022. Any notice, election, request or demand
by the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made in
writing at the Corporate Trust Office of the Trustee.


 


SECTION 13.05              Governing
Law.


 


This Indenture and each Security shall be deemed to be a contract made
under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of said State.


 


41

















 


SECTION 13.06              Treatment
of Securities as Debt.


 


It is intended that the Securities will be treated as indebtedness and
not as equity for federal income tax purposes. The provisions of this Indenture
shall be interpreted to further this intention.


 


SECTION 13.07              Compliance
Certificates and Opinions.


 


(a)                                  Upon
any application or demand by the Company to the Trustee to take any action
under any of the provisions of this Indenture, the Company, shall furnish to
the Trustee an Officers’ Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.


 


(b)                                 Each
certificate or opinion provided for in this Indenture and delivered to the
Trustee with respect to compliance with a condition or covenant in this
Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with.


 


SECTION 13.08              Payments
on Business Days.


 


Except as provided pursuant to Section 2.01 pursuant to a Board
Resolution, and as set forth in an Officers’ Certificate, or established in one
or more indentures supplemental to this Indenture, in any case where the date
of maturity of interest or principal of any Security or the date of redemption
of any Security shall not be a Business Day, then payment of interest or
principal (and premium, if any) may be made on the next succeeding Business Day
with the same force and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such nominal
date.


 


SECTION 13.09              Conflict
with Trust Indenture Act.


 


If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.


 


SECTION 13.10              Counterparts.


 


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


 


42

















 


SECTION 13.11              Separability.


 


In case any one or more of the provisions contained in this Indenture
or in the Securities of any series shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Securities, but this Indenture and such Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.


 


SECTION 13.12              Assignment.


 


The Company will have the right at all times to assign any of its
rights or obligations under this Indenture to a direct or indirect wholly-owned
Subsidiary of the Company, provided that, in the event of any such assignment,
the Company will remain liable for all such obligations. Subject to the
foregoing, the Indenture is binding upon and inures to the benefit of the
parties thereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties thereto.


 


ARTICLE XIV.


 


SUBORDINATION OF
SECURITIES


 


SECTION 14.01              Subordination
Terms.


 


The payment by the Company of the principal of, premium, if any, and
interest on any series of Securities issued hereunder shall be subordinated to
the extent set forth in an indenture supplemental hereto relating to such
Securities.


 


IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed all as of the day and year first above
written.


 


	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
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  [                                                                               
  ],

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
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