Exhibit 4.2


 


Execution Copy


 




 





 


JUNIOR SUBORDINATED INDENTURE




between




 


SL GREEN OPERATING PARTNERSHIP, L.P.




 


 


and




 


 


JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION,

as Trustee


 










 


Dated
as of June 30, 2005


 










 




 





 





















 


Table of Contents


 


	
  ARTICLE
  I

  	
  DEFINITIONS
  AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  
	
  Section 1.2.

  	
  Compliance Certificate and
  Opinions

  	
   

  
	
  Section 1.3.

  	
  Forms of Documents Delivered
  to Trustee

  	
   

  
	
  Section 1.4.

  	
  Acts of Holders

  	
   

  
	
  Section 1.5.

  	
  Notices, Etc. to Trustee and
  Company

  	
   

  
	
  Section 1.6.

  	
  Notice to Holders; Waiver

  	
   

  
	
  Section 1.7.

  	
  Effect of Headings and Table
  of Contents

  	
   

  
	
  Section 1.8.

  	
  Successors and Assigns

  	
   

  
	
  Section 1.9.

  	
  Separability Clause

  	
   

  
	
  Section 1.10.

  	
  Benefits of Indenture

  	
   

  
	
  Section 1.11.

  	
  Governing Law

  	
   

  
	
  Section 1.12.

  	
  Submission to Jurisdiction

  	
   

  
	
  Section 1.13.

  	
  Non-Business Days

  	
   

  
	
  ARTICLE
  II

  	
  SECURITY
  FORMS

  	
   

  
	
  Section 2.1.

  	
  Form of Security

  	
   

  
	
  Section 2.2.

  	
  Restricted Legend

  	
   

  
	
  Section 2.3.

  	
  Form of Trustee’s
  Certificate of Authentication

  	
   

  
	
  Section 2.4.

  	
  Temporary Securities

  	
   

  
	
  Section 2.5.

  	
  Definitive Securities

  	
   

  
	
  ARTICLE III

  	
  THE SECURITIES

  	
   

  
	
  Section 3.1.

  	
  Payment of Principal and
  Interest

  	
   

  
	
  Section 3.2.

  	
  Denominations

  	
   

  
	
  Section
  3.3.

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  
	
  Section 3.4.

  	
  Global
  Securities

  	
   

  
	
  Section
  3.5.

  	
  Registration,
  Transfer and Exchange Generally

  	
   

  
	
  Section
  3.6.

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
   

  
	
  Section 3.7.

  	
  Persons
  Deemed Owners

  	
   

  
	
  Section 3.8.

  	
  Cancellation

  	
   

  
				



 


i





















 


	
  Section
  3.9.

  	
  Deferrals
  of Interest Payment Dates

  	
   

  
	
  Section 3.10.

  	
  Reserved

  	
   

  
	
  Section 3.11.

  	
  Agreed Tax Treatment

  	
   

  
	
  Section 3.12.

  	
  CUSIP Numbers

  	
   

  
	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
  Section
  4.1.

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  Section
  4.2.

  	
  Application
  of Trust Money

  	
   

  
	
  ARTICLE V

  	
  REMEDIES

  	
   

  
	
  Section 5.1.

  	
  Events of Default

  	
   

  
	
  Section
  5.2.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  
	
  Section
  5.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee.

  	
   

  
	
  Section
  5.4.

  	
  Trustee May
  File Proofs of Claim

  	
   

  
	
  Section
  5.5.

  	
  Trustee May
  Enforce Claim Without Possession of Securities

  	
   

  
	
  Section
  5.6.

  	
  Application
  of Money Collected

  	
   

  
	
  Section 5.7.

  	
  Limitation on
  Suits

  	
   

  
	
  Section
  5.8.

  	
  Unconditional
  Right of Holders to Receive Principal, Premium, if any, and Interest; Direct
  Action by Holders of Preferred Securities

  	
   

  
	
  Section
  5.9.

  	
  Restoration
  of Rights and Remedies

  	
   

  
	
  Section
  5.10.

  	
  Rights and
  Remedies Cumulative

  	
   

  
	
  Section
  5.11.

  	
  Delay or
  Omission Not Waiver

  	
   

  
	
  Section 5.12.

  	
  Control by
  Holders

  	
   

  
	
  Section
  5.13.

  	
  Waiver of
  Past Defaults

  	
   

  
	
  Section
  5.14.

  	
  Undertaking
  for Costs

  	
   

  
	
  Section
  5.15.

  	
  Waiver of
  Usury, Stay or Extension Laws

  	
   

  
	
  ARTICLE VI

  	
  THE TRUSTEE

  	
   

  
	
  Section
  6.1.

  	
  Corporate
  Trustee Required

  	
   

  
	
  Section
  6.2.

  	
  Certain
  Duties and Responsibilities

  	
   

  
	
  Section 6.3.

  	
  Notice of
  Defaults

  	
   

  
	
  Section
  6.4.

  	
  Certain
  Rights of Trustee

  	
   

  
				



 


ii





















 


	
  Section 6.5.

  	
  May Hold
  Securities

  	
   

  
	
  Section
  6.6.

  	
  Compensation;
  Reimbursement; Indemnity

  	
   

  
	
  Section
  6.7.

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section
  6.8.

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section
  6.9.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section
  6.10.

  	
  Not Responsible
  for Recitals or Issuance of Securities

  	
   

  
	
  Section
  6.11.

  	
  Appointment
  of Authenticating Agent

  	
   

  
	
  ARTICLE VII

  	
  HOLDER’S LISTS AND REPORTS BY
  COMPANY

  	
   

  
	
  Section
  7.1.

  	
  Company to
  Furnish Trustee Names and Addresses of Holders

  	
   

  
	
  Section
  7.2.

  	
  Preservation
  of Information, Communications to Holders

  	
   

  
	
  Section 7.3.

  	
  Reports by
  Company

  	
   

  
	
  ARTICLE VIII

  	
  CONSOLIDATION, MERGER,
  CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
  Section
  8.1.

  	
  Company May
  Consolidate, Etc., Only on Certain Terms

  	
   

  
	
  Section
  8.2.

  	
  Successor
  Company Substituted

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
  Section
  9.1.

  	
  Supplemental
  Indentures without Consent of Holders

  	
   

  
	
  Section
  9.2.

  	
  Supplemental
  Indentures with Consent of Holders

  	
   

  
	
  Section
  9.3.

  	
  Execution
  of Supplemental Indentures

  	
   

  
	
  Section
  9.4.

  	
  Effect of
  Supplemental Indentures

  	
   

  
	
  Section
  9.5.

  	
  Reference
  in Securities to Supplemental Indentures

  	
   

  
	
  ARTICLE X

  	
  COVENANTS

  	
   

  
	
  Section
  10.1.

  	
  Payment of
  Principal, Premium, if any, and Interest

  	
   

  
	
  Section
  10.2.

  	
  Money for
  Security Payments to be Held in Trust

  	
   

  
	
  Section
  10.3.

  	
  Statement
  as to Compliance

  	
   

  
	
  Section 10.4.

  	
  Calculation
  Agent

  	
   

  
	
  Section 10.5.

  	
  Additional Tax
  Sums

  	
   

  
	
  Section
  10.6.

  	
  Additional
  Covenants

  	
   

  
	
  Section 10.7.

  	
  Waiver of
  Covenants

  	
   

  
	
  Section
  10.8.

  	
  Treatment
  of Securities

  	
   

  
				



 


iii





















 


	
  ARTICLE XI

  	
  REDEMPTION OF SECURITIES

  	
   

  
	
  Section 11.1.

  	
  Optional
  Redemption

  	
   

  
	
  Section
  11.2.

  	
  Special
  Event Redemption

  	
   

  
	
  Section
  11.3.

  	
  Election to
  Redeem; Notice to Trustee

  	
   

  
	
  Section
  11.4.

  	
  Selection
  of Securities to be Redeemed

  	
   

  
	
  Section 11.5.

  	
  Notice of
  Redemption

  	
   

  
	
  Section
  11.6.

  	
  Deposit of
  Redemption Price

  	
   

  
	
  Section
  11.7.

  	
  Payment of
  Securities Called for Redemption

  	
   

  
	
  ARTICLE XII

  	
  SUBORDINATION OF SECURITIES

  	
   

  
	
  Section
  12.1.

  	
  Securities
  Subordinate to Senior Debt

  	
   

  
	
  Section
  12.2.

  	
  No Payment
  When Senior Debt in Default; Payment Over of Proceeds Upon Dissolution, Etc.

  	
   

  
	
  Section
  12.3.

  	
  Payment
  Permitted If No Default

  	
   

  
	
  Section
  12.4.

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  
	
  Section
  12.5.

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  
	
  Section
  12.6.

  	
  Trustee to
  Effectuate Subordination

  	
   

  
	
  Section
  12.7.

  	
  No Waiver
  of Subordination Provisions

  	
   

  
	
  Section 12.8.

  	
  Notice to
  Trustee

  	
   

  
	
  Section
  12.9.

  	
  Reliance on
  Judicial Order or Certificate of Liquidating Agent

  	
   

  
	
  Section
  12.10.

  	
  Trustee Not
  Fiduciary for Holders of Senior Debt

  	
   

  
	
  Section
  12.11.

  	
  Rights of
  Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights

  	
   

  
	
  Section
  12.12.

  	
  Article
  Applicable to Paying Agents

  	
   

  
				



 


iv





















 


JUNIOR SUBORDINATED
INDENTURE, dated as of June 30,
2005, between SL GREEN OPERATING PARTNERSHIP, LP, a Delaware limited
partnership (the “Company”), and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, a national banking association, as Trustee
(in such capacity, the “Trustee”).


 


RECITALS OF THE COMPANY


 


WHEREAS, the Company has
duly authorized the execution and delivery of this Indenture to provide for the
issuance of its unsecured junior subordinated deferrable interest notes (the “Securities”) issued to evidence loans made
to the Company of the proceeds from the issuance by SL Green Capital Trust I, a
Delaware statutory trust (the “Trust”),
of undivided preferred beneficial interests in the assets of the Trust (the “Preferred Securities”) and undivided
common beneficial interests in the assets of the Trust (the “Common Securities” and, collectively with the Preferred
Securities, the “Trust Securities”),
and to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; 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, this
Indenture Witnesseth:


 


For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:


 


ARTICLE I


 


DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.1.  Definitions.


 


For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:


 


(a)  the terms defined in this Article I
have the meanings assigned to them in this Article I;


 


(b)  the words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”;


 


(c)  all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;


 


(d)  unless the context otherwise requires, any
reference to an “Article” or a “Section” refers to an Article or a Section, as
the case may be, of this Indenture;


 


(e)  the words “hereby”, “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;


 


1





















 


(f)  a reference to the singular includes the
plural and vice versa; and


 


(g)  the masculine, feminine or neuter genders
used herein shall include the masculine, feminine and neuter genders.


 


“Act” when used
with respect to any Holder, has the meaning specified in Section 1.4.


 


“Administrative Trustee” means, with respect to the Trust,
each Person identified as an “Administrative Trustee” in the Trust Agreement,
solely in its capacity as Administrative Trustee of the Trust under the Trust
Agreement and not in its individual capacity, or its successor in interest in
such capacity, or any successor Administrative Trustee appointed as therein
provided.


 


“Additional Interest” means
the interest, if any, that shall accrue on any amounts payable on the
Securities, the payment of which has not been made on the applicable Interest
Payment Date and which shall accrue at the rate per annum specified or
determined as specified in such Security, in each case to the extent legally
enforceable.


 


“Additional Tax Sums” has
the meaning specified in Section 10.5.


 


“Additional Taxes” means
taxes, duties or other governmental charges imposed on the Trust as a result of
a Tax Event (which, for the sake of clarity, does not include amounts required
to be deducted or withheld by the Trust from payments made by the Trust to or
for the benefit of the Holder of, or any Person that acquires a beneficial
interest in, the Securities).


 


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


 


“Applicable Depositary Procedures” means, with respect to any
transfer or transaction involving a Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Security, in each
case to the extent applicable to such transaction and as in effect from time to
time.


 


“Authenticating Agent” means any Person authorized by the
Trustee pursuant to Section 6.11 to act on behalf of the Trustee to
authenticate the Securities.


 


“Bankruptcy Code” means Title 11 of the United States Code or
any successor statute(s) thereto, or any similar federal or state law for the
relief of debtors, in each case as amended from time to time.


 


“Board of Directors” means
the board of directors of the Company or any duly authorized committee of that
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.


 


2





















 


“Business Day” means any day other than (i) a Saturday or
Sunday, (ii) a day on which banking institutions in the City of New York are
authorized or required by law or executive order to remain closed or (iii) a
day on which the Corporate Trust Office of the Trustee is closed for business.


 


“Calculation Agent” has the meaning specified in Section
10.4.


 


“Commission” has
the meaning specified in Section 7.3(c).


 


“Common Securities” has
the meaning specified in the first recital of this Indenture.


 


“Company” means
the Person named as the “Company”
in the first paragraph of this Indenture until a successor corporation shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter “Company” shall mean
such successor corporation.


 


“Company Request” and
“Company Order” mean, respectively, the written request
or order signed in the name of the Company by its Chairman of the Board of
Directors, its Vice Chairman of the Board of Directors, its Chief Executive
Officer, President or a Vice President, and by its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.


 


“Corporate Trust Office” means
the principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date of
this Indenture is located at 600 Travis, 50th Floor, Houston, Texas
77002 Attn:  Worldwide Securities
Services—SL Green Capital Trust I.


 


“Debt” means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person, whether currently existing or
hereafter incurred and whether or not contingent and without duplication, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers’ acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or other accrued liabilities arising in the ordinary
course of business); (v) every capital lease obligation of such Person; (vi) all
indebtedness of such Person, whether incurred on or prior to the date of this
Indenture or thereafter incurred, for claims in respect of derivative products,
including interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements; (vii) every obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or
otherwise; and (viii) any renewals, extensions, refundings, amendments or
modifications of any obligation of the type referred to in clauses (i) through
(vii).


 


“Defaulted Interest” has the meaning specified in Section
3.1.


 


“Delaware Trustee” means, with respect to the Trust, the
Person identified as the “Delaware Trustee” in the Trust Agreement, solely in
its capacity as Delaware Trustee of the 


 


3





















 


Trust under the Trust Agreement and not in
its individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as therein provided.


 


“Depositary” means
an organization registered as a clearing agency under the Exchange Act that is
designated as Depositary by the Company or any successor thereto.  DTC will be the initial Depositary.


 


“Depositary Participant” means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Depositary
effects book-entry transfers and pledges of securities deposited with the
Depositary.


 


“Distributions” means amounts payable in respect of the Trust
Securities as provided in the Trust Agreement and referred to therein as “Distributions.”


 


“Dollar” or “$” means
the currency of the United States of America that, as at the time of payment,
is legal tender for the payment of public and private debts.


 


“DTC” means The Depository Trust Company, a New York
corporation, or any successor thereto.


 


“EDGAR” has the
meaning specified in Section 7.3(c).


 


“Event of Default” has
the meaning specified in Section 5.1.


 


“Exchange Act” means the Securities Exchange Act of 1934 or
any statute successor thereto, in each case as amended from time to time.


 


“Expiration Date” has the meaning specified in Section 1.4.


 


“Extension Period” has
the meaning specified in Section 3.9.


 


“Fixed Rate Period” shall have the meaning in the form of
Security set forth in Section 2.1.


 


 “GAAP”
means United States generally accepted accounting principles, consistently
applied, from time to time in effect.


 


“Global Security” means
a Security that evidences all or part of the Securities, the ownership and
transfers of which shall be made through book entries by a Depositary.


 


“Government Obligation” means
(a) any security that is (i) a direct obligation of the United States of
America of which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (b) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any Government Obligation that is
specified in clause (a) above and held by such bank for the account of the
holder of such depositary receipt, or with respect to any 


 


4





















 


specific payment of principal of or interest on any Government
Obligation that is so specified and held, provided,
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 Government Obligation or
the specific payment of principal or interest evidenced by such depositary
receipt.


 


“Holder” means
a Person in whose name a Security is registered in the Securities Register.


 


“Indenture” means
this instrument as originally executed or as it may from time to time be
amended or supplemented by one or more amendments or indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.


 


“Interest Payment Date” means
January 30, April 30, July 30,
and October 30 of each
year, commencing on October 30, 2005, during the term of this Indenture.


 


“Investment Company Act” means the Investment Company Act of
1940 or any successor statute thereto, in each case as amended from time to
time.


 


“Investment Company Event” means the receipt by the Company
of an Opinion of Counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation (including any
announced prospective change) or a written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or, within ninety (90) days of the date of such opinion will be,
considered an “investment company” that is required to be registered under the
Investment Company Act, which change or prospective change becomes effective or
would become effective, as the case may be, on or after the date of the
issuance of the Securities.


 


“LIBOR” has the meaning specified in Schedule A.


 


“LIBOR Business Day” has the meaning specified in Schedule
A.


 


“LIBOR Determination Date” has the meaning specified in Schedule
A.


 


“Liquidation Amount” has the meaning specified in the Trust
Agreement.


 


“Maturity,” when
used with respect to any Security, means the date on which the principal of
such Security or any installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.


 


“Notice of Default” means
a written notice of the kind specified in Section 5.1(c).


 


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


 


5





















 


“Operative Documents” means
the Trust Agreement, the Indenture, the Purchase Agreements and the Securities.


 


“Opinion of Counsel” means
a written opinion of counsel, who may be counsel for or an employee of the
Company or any Affiliate of the Company.


 


“Optional Redemption Price” has the meaning set forth in Section
11.1.


 


“Original Issue Date” means the date of original issuance of
each Security.


 


“Outstanding” means,
when used in reference to any Securities, as of the date of determination, all
Securities theretofore authenticated and delivered under this Indenture,
except:


 


(i)  Securities theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;


 


(ii)  Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company and/or its Affiliates shall
act as its own Paying Agent) for the Holders of such Securities; provided, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and


 


(iii)  Securities that have been paid or in
substitution for or in lieu of which other Securities have been authenticated
and delivered pursuant to the provisions of this Indenture, unless proof
satisfactory to the Trustee is presented that any such Securities are held by
Holders in whose hands such Securities are valid, binding and legal obligations
of the Company;


 


provided, that
in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or
such other obligor shall be disregarded and deemed not to be Outstanding,
unless the Company shall hold all Outstanding Securities, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities that a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned that have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or such other obligor. Notwithstanding
anything herein to the contrary, Securities initially issued to the Trust that
are owned by the Trust shall be deemed to be Outstanding notwithstanding the
ownership by the Company or an Affiliate of any beneficial interest in the
Trust.


 


“Paying Agent” means
the Trustee or any Person authorized by the Company to pay the principal of or
any premium or interest on, or other amounts in respect of, any Securities on
behalf of the Company.


 


6





















 


“Person” means
a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, company, limited liability
company, trust, unincorporated association or government, or any agency or
political subdivision thereof, or any other entity of whatever nature.


 


“Place of Payment” means,
with respect to the Securities, the Corporate Trust Office of the Trustee.


 


“Preferred Securities” has
the meaning specified in the first recital of this Indenture.


 


“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. For the
purposes of this definition, any security authenticated and delivered under Section
3.6 in lieu of a mutilated, destroyed, lost or stolen Security shall be
deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.


 


“Proceeding” has
the meaning specified in Section 12.2.


 


“Property Trustee” means
the Person identified as the “Property Trustee” in the Trust Agreement, solely
in its capacity as Property Trustee of the Trust under the Trust Agreement and
not in its individual capacity, or its successor in interest in such capacity,
or any successor Property Trustee appointed as therein provided.


 


“Purchase Agreements” means
the two agreements, each dated as of the date hereof, between the Company and
the Trust and the Purchaser named therein.


 


“Redemption Date” means, when used with respect to any
Security to be redeemed, the date fixed for such redemption by or pursuant to
this Indenture.


 


“Redemption Price” means, when used with respect to any
Security to be redeemed, in whole or in part, the Special Redemption Price or
the Optional Redemption Price, as applicable, at which such Security or portion
thereof is to be redeemed as fixed by or pursuant to this Indenture.


 


“Reference Banks” has the meaning specified in Schedule A.


 


“Regular Record Date” for
the interest payable on any Interest Payment Date with respect to the Securities
means the date that is fifteen (15) days preceding such Interest Payment Date
(whether or not a Business Day).


 


“Responsible Officer” means, when used with respect to the
Trustee, the officer in the Institutional Trust Services department of the Trustee
having direct responsibility for the administration of this Indenture.


 


“Rights Plan” means
a plan of the Company providing for the issuance by the Company to all holders
of its units of limited partnership interests of rights entitling the holders
thereof to subscribe for or purchase units of partnership interests of the
Company which rights (i) are deemed to be transferred with such units of
limited partnership interests and (ii) are also issued in 


 


7





















 


respect of future issuances of such units of
limited partnership interests, in each case until the occurrence of a specified
event or events.


 


“Securities” or
“Security means any debt
securities or debt security, as the case may be, authenticated and delivered
under this Indenture.


 


“Securities Act” means the Securities Act of 1933 or any
successor statute thereto, in each case as amended from time to time.


 


“Securities Register” and
“Securities Registrar” have the respective meanings specified in
Section 3.5.


 


“Senior Debt” means
the principal of and any premium and interest on (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization
relating to the Company, whether or not such claim for post-petition interest
is allowed in such proceeding) all Debt of the Company, whether incurred on or
prior to the date of this Indenture or thereafter incurred, unless it is provided in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, that such obligations are not superior in right of payment to the
Securities issued under this Indenture;
provided, that Senior Debt shall
not be deemed to include any other debt securities (and guarantees, if any, in
respect of such debt securities) issued to any trust other than the Trust (or a
trustee of any such trust), partnership or other entity affiliated with the
Company that is a financing vehicle of the Company (a “financing entity”) in
connection with the issuance by such financing entity of equity securities or
other securities pursuant to an instrument that ranks pari passu with or junior in right of
payment to this Indenture.


 


“Special Event” means
the occurrence of an Investment Company Event or a Tax Event.


 


“Special Record Date” for
the payment of any Defaulted Interest means a date fixed by the Trustee
pursuant to Section 3.1.


 


“Special Redemption Price” has the meaning set forth in Section
11.2.


 


“Stated Maturity” means July 30, 2035.


 


“Subsidiary” means a Person more than fifty percent (50%) of
the outstanding voting stock or other voting interests of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For purposes of this
definition, “voting stock” means
stock that ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.


 


“Tax Event” means the receipt by the Company of an Opinion of
Counsel experienced in such matters to the effect that, as a result of (a) any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein or (b) any judicial decision or any
official administrative pronouncement (including any private letter ruling,
technical advice memorandum or field service advice) or regulatory procedure,
including any notice or announcement of intent to adopt any such pronouncement
or procedure (an “Administrative Action”),
regardless of whether such judicial decision or Administrative Action is issued
to or in 


 


8





















 


connection with a proceeding involving the
Company or the Trust and whether or not subject to review or appeal, which
amendment, change, judicial decision or Administrative Action is enacted,
promulgated or announced, in each case, on or after the date of issuance of the
Securities, there is more than an insubstantial risk that (i) the Trust is, or
will be within ninety (90) days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Securities, (ii) interest payable by the Company on the Securities is not, or
within ninety (90) days of the date of such opinion, will not be, deductible by
the Company, in whole or in part, for United States federal income tax
purposes, or (iii) the Trust is, or will be within ninety (90) days of the date
of such opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.


 


“Trust” has the meaning specified in the first recital of
this Indenture.


 


“Trust Agreement” means the Amended and Restated Trust
Agreement executed and delivered by the Company, the Property Trustee, Chase
Bank USA, National Association, as Delaware Trustee and the Administrative
Trustees named therein, contemporaneously with the execution and delivery of
this Indenture, for the benefit of the holders of the Trust Securities, as
amended or supplemented from time to time.


 


“Trustee” means
the Person named as the “Trustee”
in the first paragraph of this instrument, solely in its capacity as such and
not in its individual capacity, until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and, thereafter, “Trustee” shall mean or include each Person
who is then a Trustee hereunder.


 


“Trust Indenture Act” means
the Trust Indenture Act of 1939, as amended and as in effect on the date as of
this Indenture.


 


“Trust Securities” has the meaning specified in the first
recital of this Indenture.


 


SECTION
1.2. 
Compliance Certificate and Opinions.


 


(a)           Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the
Company shall, if requested by the Trustee, 
furnish to the Trustee an Officers’ Certificate stating that all
conditions precedent (including covenants compliance with which constitutes a
condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any,
have been complied with.


 


(b)           Every certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificate provided pursuant to Section 10.3) shall include:


 


(i)  a statement by each individual signing such
certificate or opinion that such individual has read such covenant or condition
and the definitions herein relating thereto;


 


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


 


9





















 


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


 


(iv)  a statement as to whether, in the opinion of
such individual, such condition or covenant has been complied with.


 


SECTION
1.3. 
Forms of Documents Delivered to Trustee.


 


(a)           In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person,
it is not necessary that all such matters be certified by, or covered by the
opinion of, only one such Person, or that they be so certified or covered by
only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.


 


(b)           Any certificate or opinion of an officer of
the Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or after reasonable inquiry should know, that the certificate or opinion
or representations with respect to matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or after reasonable
inquiry should know, that the certificate or opinion or representations with
respect to such matters are erroneous.


 


(c)           Where any Person is required to make, give or
execute two or more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.


 


(d)           Whenever, subsequent to the receipt by the
Trustee of any Board Resolution, Officers’ Certificate, Opinion of Counsel or
other document or instrument, a clerical, typographical or other inadvertent or
unintentional error or omission shall be discovered therein, a new document or
instrument may be substituted therefor in corrected form with the same force
and effect as if originally received in the corrected form and, irrespective of
the date or dates of the actual execution and/or delivery thereof, such
substitute document or instrument shall be deemed to have been executed and/or
delivered as of the date or dates required with respect to the document or
instrument for which it is substituted. 
Without limiting the generality of the foregoing, any Securities issued
under the authority of such defective document or instrument shall nevertheless
be the valid obligations of the Company entitled to the benefits of this
Indenture equally and ratably with all other Outstanding Securities.


 


SECTION 1.4.  Acts of
Holders.


 


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given to or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by an agent thereof duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments 


 


10





















 


(including any appointment of an agent) is or
are delivered to the Trustee, and, where it is hereby expressly required, to
the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 1.4.


 


(b)           The fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her the
execution thereof. Where such execution is by a Person acting in other than his
or her individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his or her authority. 
The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner that the Trustee or the Company, as the case may be,
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.


 


(c)           The ownership of Securities shall be proved
by the Securities Register.


 


(d)           Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Security shall
bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the Trustee
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.


 


(e)           Without limiting the foregoing, a Holder
entitled to take any action hereunder with regard to any particular Security
may do so with regard to all or any part of the principal amount of such
Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any part of such principal
amount.


 


(f)            Except as set forth in paragraph (g) of this Section
1.4, the Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided,
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date (as defined in Section 1.4(h)) by Holders
of the requisite principal amount of Outstanding Securities on such record
date.  Nothing in this paragraph shall be
construed to prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect).  Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 1.6.


 


11





















 


(g)           The Trustee may set any day as a record date
for the purpose of determining the Holders of Outstanding Securities entitled
to join in the giving or making of (i) any Notice of Default, (ii) any
declaration of acceleration or rescission or annulment thereof referred to in Section
5.2, (iii) any request to institute proceedings referred to in Section
5.7(b) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided,
that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities on such record date. Nothing in this paragraph shall be
construed to prevent the Trustee from setting a new record date for any action
for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no
action by any Person be canceled and of no effect).  Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.


 


(h)           With respect to any record date set pursuant
to paragraph (f) or (g) of this Section 1.4, the party hereto that sets
such record date may designate any day as the “Expiration
Date” and from time to
time may change the Expiration Date to any earlier or later day; provided, that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Securities in the manner
set forth in Section 1.6, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section 1.4, the party hereto that set such record date
shall be deemed to have initially designated the ninetieth (90th)
day after such record date as the Expiration Date with respect thereto, subject
to its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the one
hundred eightieth (180th) day after the applicable record date.


 


SECTION
1.5. 
Notices, Etc. to Trustee and Company.


 


Any request, demand,
authorization, direction, notice, consent, waiver, Act of Holders, or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:


 


(a)           the Trustee by any Holder, any holder of
Preferred Securities or the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with and received
by the Trustee at its Corporate Trust Office, or


 


(b)           the Company by the Trustee, any Holder or any
holder of Preferred Securities shall be sufficient for every purpose hereunder
if in writing and mailed, first class, postage prepaid, to the Company addressed
to it at 420 Lexington Avenue, New York, NY 10170, Attention:  Gregory F. Hughes, with a copy to Clifford
Chance US LLP, 31 West 52nd Street, New York, NY 10019,
Attention:  Larry P. Medvinsky, or at any
other address previously furnished in writing to the Trustee by the Company.


 


12





















 


SECTION
1.6. 
Notice to Holders; Waiver.


 


Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class, postage prepaid, to each Holder affected by such event to the
address of such Holder as it appears in the Securities Register, not later than
the latest date, if any, and not earlier than the earliest date, if any,
prescribed for the giving of such notice. If, by reason of the suspension of or
irregularities in regular mail service or for any other reason, it shall be
impossible or impracticable to mail notice of any event to Holders when said notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.


 


SECTION
1.7. 
Effect of Headings and Table of Contents.


 


The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction of this Indenture.


 


SECTION
1.8. 
Successors and Assigns.


 


This Indenture shall be
binding upon and shall inure to the benefit of any successor to the Company and
the Trustee, including any successor by operation of law.  Except in connection with a transaction
involving the Company that is permitted under Article VIII and pursuant
to which the assignee agrees in writing to perform the Company’s obligations
hereunder, the Company shall not assign its obligations hereunder.


 


SECTION
1.9. 
Separability Clause.


 


If any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and there shall be deemed substituted
for the provision at issue a valid, legal and enforceable provision as similar
as possible to the provision at issue.


 


SECTION
1.10. 
Benefits of Indenture.


 


Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors and assigns, the holders of Senior Debt,
the Holders of the Securities and, to the extent expressly provided in Sections
5.2, 5.8, 5.9, 5.11, 5.13, 9.2 and 10.7,
the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.


 


13





















 


SECTION 1.11.  Governing Law.


 


This
Indenture and the rights and obligations of each of the Holders, the Company
and the Trustee shall be construed and enforced in accordance with and governed
by the laws of the State of New York without reference to its conflict of laws
provisions (other than Section 5-1401 of the General Obligations Law).


 


SECTION
1.12.  Submission to Jurisdiction.


 


ANY LEGAL ACTION OR
PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF
THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW
YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR
THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF
MANHATTAN). BY EXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY ACCEPTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR
LEGAL PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE.


 


SECTION
1.13. 
Non-Business Days.


 


If any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day, then (notwithstanding any other provision of this Indenture or
the Securities) payment of interest, premium, if any, or principal or other
amounts in respect of such Security shall not be made on such date, but shall be
made on the next succeeding Business Day (and no interest shall accrue in
respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be, until such next succeeding Business Day) except that, if such
Business Day falls in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on the Interest Payment Date or Redemption Date or
at the Stated Maturity.


 


ARTICLE II


 


SECURITY
FORMS


 


SECTION 2.1.  Form of
Security.


 


Any Security issued
hereunder shall be in substantially the following form:


 


SL GREEN OPERATING PARTNERSHIP, L.P.


 


Floating Rate Junior Subordinated Note due 2035


 


	
  No. 

  	
   

  	
   

  	
   

  	
  $

  	
  103,100,000

  



 


SL GREEN OPERATING
PARTNERSHIP, L.P., a limited partnership organized and existing under the laws
of Delaware (hereinafter called the “Company,”
which term includes any 


 


14





















 


successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
JPMorgan Chase Bank, National Association, not in its individual capacity, but
solely as Property Trustee for SL Green Capital Trust I or registered assigns,
the principal sum of One Hundred Three Million One Hundred Thousand Dollars
($103,100,000) [if the Security is a Global Security, then insert— or such
other principal amount represented hereby as may be set forth in the records of
the Securities Registrar hereinafter referred to in accordance with the
Indenture] on July 30, 2035. 
The Company further promises to pay interest on said principal sum from
June 30, 2005, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on January 30, April
30, July 30, and October
30 of each year, commencing on October 30, 2005, or if any such day is not a
Business Day, on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at a fixed rate equal to 5.61% per annum through the interest payment date in
July 2015 (“Fixed Rate Period”) and thereafter at a variable rate equal to LIBOR plus 1.25%
per annum, together with Additional Tax Sums, if any, as provided in Section
10.5 of the Indenture, until the principal hereof is paid or duly provided
for or made available for payment; provided,
further, that any overdue
principal, premium, if any, or Additional Tax Sums and any overdue installment
of interest shall bear Additional Interest at a fixed rate equal to 5.61%
through the interest payment date in July 2015 and thereafter at a variable
rate equal to LIBOR plus 1.25% per annum (to the extent that the payment of
such interest shall be legally enforceable), compounded quarterly, from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand.


 


During the Fixed Rate
Period, the amount of interest payable shall be computed on the basis of a
360-day year of twelve 30-day months and the amount payable for any partial
period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. 
Upon expiration of the Fixed Rate Period, the amount of interest payable
for any Interest Payment Period will be computed on the basis of a 360-day year
and the actual number of days elapsed in the relevant interest period.  The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date shall, as provided in the Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest
installment.  Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than ten (10) days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.


 


So long as no Event of
Default has occurred and is continuing, the Company shall have the right, at
any time and from time to time during the term of this Security, to defer the
payment of interest on this Security for a period of up to eight (8) consecutive quarterly interest payment 


 


15





















 


periods (each such period, an “Extension
Period”), during which Extension Period(s), no interest shall be due
and payable (except any Additional Tax Sums that may be due and payable).  No Extension Period shall end on a date other
than an Interest Payment Date, and no Extension Period shall extend beyond the
Stated Maturity of the principal of this Security.  No interest shall be due and payable during
an Extension Period (except any Additional Tax Sums that may be due and
payable), except at the end thereof.  At
the end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid on this Security. 
Prior to the termination of any such Extension Period, the Company may
further defer the payment of interest; provided,
that (i) all such previous and further extensions comprising such Extension
Period do not exceed eight (8) quarterly interest payment periods, (ii) no
Extension Period shall end on a date other than an Interest Payment Date and
(iii) no Extension Period shall extend beyond the Stated Maturity of the
principal of this Security.  Upon the
termination of any such Extension Period and upon the payment of all accrued
and unpaid interest then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period; provided,
that (i) such Extension Period does not exceed eight (8) quarterly interest payment periods, (ii) no Extension
Period shall end on a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the principal of
this Security.  The Company shall give
the Holder of this Security and the Trustee written notice of its election to
begin any such Extension Period at least thirty (30) days’ prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral.


 


During any Event of Default
or any such Extension Period, the Company shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company’s units of limited
partnership interests or (ii) make any payment of principal of or any interest
or premium, if any, on or repay, repurchase or redeem any debt securities of
the Company that rank pari passu
in all respects with or junior in interest to this Security (other than (a)
repurchases, redemptions or other acquisitions of units of limited partnership
interests of the Company in connection with (1) any employment contract,
benefit plan or other similar arrangement with or for the benefit of any one or
more employees, officers, directors or consultants, (2) a dividend reinvestment
or limited partnership interests purchase plan and (3) the issuance of limited
partnership interests of the Company (or securities convertible into or
exercisable for such units of limited partnership interests) as consideration
in an acquisition transaction entered into prior to the applicable Extension
Period, (b) as a result of an exchange or conversion of any series of the
Company’s limited partnership interests (or any limited partnership interests
of a Subsidiary) for any series of the Company’s limited partnership interests
or of any series of the Company’s indebtedness for any series of the Company’s
limited partnership interests, (c)  any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, limited partnership interests or other property under any Rights Plan,
or the redemption or repurchase of rights pursuant thereto or (d) any dividend
in the form of limited partnership interests, warrants, options or other rights
where the dividend limited partnership interests or the limited partnership
interests issuable upon exercise of such warrants, options or other rights is
the same limited partnership interests as that on which the dividend is being
paid or ranks pari passu with or
junior to such limited partnership interests).


 


Payment of principal of,
premium, if any, and interest on this Security shall be made in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. 
Payments of principal, premium, if any, and interest due at the Maturity
of this Security shall be made at the Place of Payment upon surrender of such 


 


16





















 


Securities to the Paying Agent, and payments of interest shall be made,
subject to such surrender where applicable, by wire transfer at such place and
to such account at a banking institution in the United States as may be
designated in writing to the Paying Agent at least ten (10) Business Days prior
to the date for payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant record date, in
which case such payments shall be made by check mailed to the address of such Person
as such address shall appear in the Security Register.  Notwithstanding the foregoing, so long as the
Holder of this Security is the Property Trustee, the payment of the principal
of (and premium, if any) and interest (including any overdue installment of
interest and Additional Tax Sums, if any) on this Security will be made at such
place and to such account as may be designated by the Property Trustee.


 


The indebtedness evidenced
by this Security is, to the extent provided in the Indenture, subordinate and
junior in right of payment to the prior payment in full of all Senior Debt, and
this Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on
his or her behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his or
her attorney-in-fact for any and all such purposes. Each Holder hereof, by his
or her acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Debt, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.


 


Unless the certificate of
authentication hereon has been executed by the Trustee by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.


 


[FORM OF REVERSE OF SECURITY]


 


This Security is one of a
duly authorized issue of securities of the Company (the “Securities”) issued under the Junior
Subordinated Indenture, dated as of June 30, 2005 (the “Indenture”), between the Company and
JPMorgan Chase Bank, National Association, as Trustee (in such capacity, the “Trustee,” which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Debt, the Holders of the Securities and the
holders of the Preferred Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.


 


All terms used in this
Security that are defined in the Indenture or in the Amended and Restated Trust
Agreement, dated as of June 30, 2005 (as modified, amended or supplemented from
time to time, the “Trust Agreement”),
relating to the SL Green Capital
Trust I (the “Trust”) among the
Company, as Depositor, the Trustees named therein and the Holders from time to
time of the Trust Securities issued pursuant thereto, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.


 


The Company may, on any
Interest Payment Date, at its option, upon not less than thirty (30) days’ nor
more than sixty (60) days’ written notice to the Holders of the Securities
(unless a shorter notice period shall be satisfactory to the Trustee) on or
after July 30, 2010 and subject to the terms and conditions of Article XI
of the Indenture, redeem this Security in whole at any time 


 


17





















 


or in part from time to time at a Redemption Price equal to one hundred
percent (100%) of the principal amount hereof, together, in the case of any
such redemption, with accrued interest, including any Additional Interest,
through but excluding the date fixed as the Redemption Date.


 


In addition, upon the
occurrence and during the continuation of a Special Event, the Company may, at
its option, upon not less than thirty (30) days’ nor more than sixty (60) days’
written notice to the Holders of the Securities (unless a shorter notice period
shall be satisfactory to the Trustee), redeem this Security, in whole but not
in part, subject to the terms and conditions of Article XI of the
Indenture at a Redemption Price equal to one hundred seven and one half percent
(107.5%) of the principal amount hereof, together, in the case of any such
redemption, with accrued interest, including any Additional Interest, through
but excluding the date fixed as the Redemption Date.


 


In the event of redemption
of this Security in part only, a new Security or Securities for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.  If less than all
the Securities are to be redeemed, the particular Securities to be redeemed
shall be selected not more than sixty (60) days prior to the Redemption Date by
the Trustee from the Outstanding Securities not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the
principal amount of any Security.


 


The Indenture permits, with
certain exceptions as therein provided, the Company and the Trustee at any time
to enter into a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations of the Company and of the
Holders of the Securities, with the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities. The Indenture also
contains provisions permitting Holders of specified percentages in principal
amount of the Securities, on behalf of the Holders of all Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.


 


No reference herein to the
Indenture and no provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of and any premium, if any, and interest, including any
Additional Interest (to the extent legally enforceable), on this Security at
the times, place and rate, and in the coin or currency, herein prescribed.


 


As provided in the Indenture
and subject to certain limitations therein set forth, the transfer of this
Security is restricted to transfers to “Qualified Purchasers” (as such term is
defined in the Investment Company Act of 1940, as amended), and is registrable
in the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained for such purpose,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar and duly executed by,
the Holder hereof or such Holder’s attorney duly authorized in writing, and 


 


18





















 


thereupon one or more new Securities, of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.


 


The Securities are issuable
only in registered form without coupons in minimum denominations of $100,000
and any integral multiple of $1,000 in excess thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.


 


No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.


 


The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.


 


The Company and, by its
acceptance of this Security or a beneficial interest herein, the Holder of, and
any Person that acquires a beneficial interest in, this Security agree that,
for United States federal, state and local tax purposes, it is intended that
this Security constitute indebtedness.


 


This
Security shall be construed and enforced in accordance with and governed by the
laws of the State of New York, without reference to its conflict of laws provisions
(other than Section 5-1401 of the General Obligations Law).


 


IN WITNESS WHEREOF, the
Company has caused this instrument to be duly executed on this         
day of                     ,
20    .


 


	
   

  	
  SL GREEN OPERATING
  PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
  By: SL GREEN REALTY CORP.,
  its General 

  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SECTION
2.2. 
Restricted Legend.


 


(a)           Any Security issued hereunder shall bear a
legend in substantially the following form:


 


“[IF THIS SECURITY IS A GLOBAL SECURITY INSERT:  THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC.  THIS 


 


19





















 


SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]


 


THE SECURITIES REPRESENTED
BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM.  EACH PURCHASER OF
ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE SECURITIES MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


 


THE HOLDER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE COMPANY THAT (A)
SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED ONLY (I) TO THE
COMPANY OR (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED
PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED), AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY
SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


 


THE SECURITIES WILL BE ISSUED
AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF
NOT LESS THAN $100,000. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED
TRANSFER OF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE
PRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED
NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, 


 


20





















 


INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST
THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN SUCH SECURITIES.


 


THE HOLDER OF THIS SECURITY,
OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”)
(EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER
OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN
THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”


 


(b)           The above legends shall not be removed from
any Security unless there is delivered to the Company satisfactory evidence,
which may include an Opinion of Counsel, as may be reasonably required to
ensure that any future transfers thereof may be made without restriction under
or violation of the provisions of the Securities Act and other applicable
law.  Upon provision of such satisfactory
evidence, the Company shall execute and deliver to the Trustee, and the Trustee
shall deliver, upon receipt of a Company Order directing it to do so, a
Security that does not bear the legend.


 


SECTION
2.3. 
Form of Trustee’s Certificate of Authentication.


 


The Trustee’s certificate of
authentication shall be in substantially the following form:


 


This is one of the
Securities referred to in the within-mentioned Indenture.


 


Dated:


 


	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authenticating
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


21





















 


SECTION
2.4. 
Temporary Securities.


 


(a)           Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.


 


(b)           If temporary Securities are issued, the
Company will cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of any authorized denominations having the same Original Issue Date and Stated
Maturity and having the same terms as such temporary Securities. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.


 


SECTION
2.5. 
Definitive Securities.


 


The Securities issued on the
Original Issue Date shall be in definitive form.  The definitive Securities shall be printed,
lithographed or engraved, or produced by any combination of these methods, if
required by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.


 


ARTICLE III


 


THE
SECURITIES


 


SECTION
3.1. 
Payment of Principal and Interest.


 


(a)           The unpaid principal amount of the Securities
shall bear interest at a fixed rate equal to 5.61% per annum through the
interest payment date in July 2015 and thereafter at a variable rate of LIBOR
plus 1.25% per annum until paid or duly provided for, such interest to accrue
from the Original Issue Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, and any overdue principal,
premium, if any, or Additional Tax Sums and any overdue installment of interest
shall bear Additional Interest at the rate equal to a fixed rate equal to 5.61%
per annum through the interest payment date in July 2015 and thereafter at a
variable rate of LIBOR plus 1.25% per annum, compounded quarterly from the
dates such amounts are due until they are paid or funds for the payment thereof
are made available for payment.


 


(b)           Interest and Additional Interest on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose 


 


22





















 


name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, except that interest and any Additional Interest payable on the
Stated Maturity (or any date of principal repayment upon early maturity) of the
principal of a Security or on a Redemption Date shall be paid to the Person to
whom principal is paid. The initial payment of interest on any Security that is
issued between a Regular Record Date and the related Interest Payment Date
shall be payable as provided in such Security.


 


(c)           Any interest on any Security that is due and
payable, but is not timely paid or duly provided for, on any Interest Payment
Date for Securities (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 may be paid by the Company, at its election
in each case, as provided in paragraph (i) or (ii) below:


 


(i)  The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the 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 (a “Special Record Date”), which shall be
fixed in the following manner.  At least
thirty (30) days prior to the date of the proposed payment, the Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each 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. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than fifteen (15) days and not less than ten
(10) days prior to the date of the proposed payment and not less than ten (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 Holder of a
Security at the address of such Holder as it appears in the Securities Register
not less than ten (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 so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date; or


 


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


 


(d)           Payments of interest on the Securities shall
include interest accrued to but excluding the respective Interest Payment
Dates. During the Fixed Rate Period, the amount of 


 


23





















 


interest payable shall be computed on the basis of a 360-day year of
twelve 30-day months and the amount payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months.  Upon expiration of the
Fixed Rate Period, the amount of interest payable for any Interest Payment
Period will be computed on the basis of a 360-day year and the actual number of
days elapsed in the relevant interest period.


 


(e)           Payment of principal of, premium, if any, and
interest on the Securities shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.  Payments of
principal, premium, if any, and interest due at the Maturity of such Securities
shall be made at the Place of Payment upon surrender of such Securities to the
Paying Agent and payments of interest shall be made subject to such surrender
where applicable, by wire transfer at such place and to such account at a banking
institution in the United States as may be designated in writing to the Paying
Agent at least ten (10) Business Days prior to the date for payment by the
Person entitled thereto unless proper written transfer instructions have not
been received by the relevant record date, in which case such payments shall be
made by check mailed to the address of such Person as such address shall appear
in the Security Register. 
Notwithstanding the foregoing, so long as the holder of this Security is
the Property Trustee, the payment of the principal of (and premium, if any) and
interest (including any overdue installment of interest and Additional Tax
Sums, if any) on this Security will be made at such place and to such account
as may be designated by the Property Trustee.


 


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


 


SECTION 3.2.  Denominations.


 


The Securities shall be in
registered form without coupons and shall be issuable in minimum denominations
of $100,000 and any integral multiple of $1,000 in excess thereof.


 


SECTION
3.3. 
Execution, Authentication, Delivery and Dating.


 


(a)           At any time and from time to time after the
execution and delivery of this Indenture, 
the Company may deliver Securities in an aggregate principal amount
(including all then Outstanding Securities) not in excess of One Hundred Three
Million One Hundred Thousand Dollars ($103,100,000) executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company 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 shall be fully protected in relying upon:


 


(i)  a copy of any Board Resolution relating
thereto; and


 


(ii)  an Opinion of Counsel stating that: (1) such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute, and the Indenture 


 


24





















 


constitutes, valid and
legally binding obligations of the Company, each enforceable in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors’ rights and to general equity principles; (2) the
Securities have been duly authorized and executed by the Company and have been
delivered to the Trustee for authentication in accordance with this Indenture;
(3) the Securities are not required to be registered under the Securities Act;
and (4) the Indenture is not required to be qualified under the Trust Indenture
Act.


 


(b)           The Securities shall be executed on behalf of
the Company by its Chairman of the Board, its Vice Chairman of the Board, its
Chief Executive Officer, its President or one of its Vice Presidents. The
signature of any of these officers on the Securities may be manual or
facsimile.  Securities bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.


 


(c)           No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by the manual signature of one
of its authorized signatories, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 3.8, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.


 


(d)           Each Security shall be dated the date of its
authentication.


 


SECTION
3.4. 
Global Securities.


 


(a)           Upon the election of the Holder after the
Original Issue Date, which election need not be in writing, the Securities
owned by such Holder shall be issued in the form of one or more Global
Securities registered in the name of the Depositary or its nominee. Each Global
Security issued under this Indenture shall be registered in the name of the
Depositary designated by the Company for such Global Security or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single Security for
all purposes of this Indenture.


 


(b)           Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part for
registered Securities, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary advises the
Trustee and the Company in writing that such Depositary is no longer willing or
able to properly discharge its responsibilities as Depositary with respect to such
Global Security, and no qualified successor is appointed by the Company within
ninety (90) days of receipt by the Company of such notice, (ii) such Depositary
ceases to be a clearing agency registered under the Exchange Act and no 


 


25





















 


successor is appointed by the Company within
ninety (90) days after obtaining knowledge of such event, (iii) the Company
executes and delivers to the Trustee a Company Order stating that the Company
elects to terminate the book-entry system through the Depositary or (iv) an
Event of Default shall have occurred and be continuing.  Upon the occurrence of any event specified in
clause (i), (ii), (iii) or (iv) above, the Trustee shall notify the Depositary
and instruct the Depositary to notify all owners of beneficial interests in
such Global Security of the occurrence of such event and of the availability of
Securities to such owners of beneficial interests requesting the same.  The Trustee may conclusively rely, and be
protected in relying, upon the written identification of the owners of
beneficial interests furnished by the Depositary, and shall not be liable for
any delay resulting from a delay by the Depositary.  Upon the issuance of such Securities and the
registration in the Securities Register of such Securities in the names of the
Holders of the beneficial interests therein, the Trustees shall recognize such
holders of beneficial interests as Holders.


 


(c)           If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article III or (ii) the principal
amount thereof shall be reduced or increased by an amount equal to (x) the
portion thereof to be so exchanged or canceled, or (y) the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee, in accordance with the
Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender or adjustment of a Global Security by the Depositary,
accompanied by registration instructions, the Company shall execute and the
Trustee shall authenticate and deliver any Securities issuable in exchange for
such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.


 


(d)           Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a
nominee thereof.


 


(e)           Securities distributed to holders of
Book-Entry Preferred Securities (as defined in the applicable Trust Agreement)
upon the dissolution of the Trust shall be distributed in the form of one or
more Global Securities registered in the name of a Depositary or its nominee,
and deposited with the Securities Registrar, as custodian for such Depositary,
or with such Depositary, for credit by the Depositary to the respective
accounts of the beneficial owners of the Securities represented thereby (or
such other accounts as they may direct). 
Securities distributed to holders of Preferred Securities other than
Book-Entry Preferred Securities upon the dissolution of the Trust shall not be
issued in the form of a Global Security or any other form intended to
facilitate book-entry trading in beneficial interests in such Securities.


 


(f)            The Depositary or its nominee, as the
registered owner of a Global Security, shall be the Holder of such Global
Security for all purposes under this Indenture and the Securities, and owners
of beneficial interests in a Global Security shall hold such interests pursuant
to the 


 


26





















 


Applicable Depositary Procedures. Accordingly, any such owner’s
beneficial interest in a Global Security shall be shown only on, and the
transfer of such interest shall be effected only through, records maintained by
the Depositary or its nominee or its Depositary Participants.  The Securities Registrar and the Trustee
shall be entitled to deal with the Depositary for all purposes of this
Indenture relating to a Global Security (including the payment of principal and
interest thereon and the giving of instructions or directions by owners of
beneficial interests therein and the giving of notices) as the sole Holder of
the Security and shall have no obligations to the owners of beneficial
interests therein.  Neither the Trustee
nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Depositary.


 


(g)           The rights of owners of beneficial interests
in a Global Security shall be exercised only through the Depositary and shall
be limited to those established by law and agreements between such owners and
the Depositary and/or its Depositary Participants.


 


(h)           No holder of any beneficial interest in any
Global Security held on its behalf by a Depositary shall have any rights under
this Indenture with respect to such Global Security, and such Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the owner of such Global Security for all purposes whatsoever.  None of the Company, the Trustee nor any
agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary
or impair, as between a Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights of
the Depositary (or its nominee) as Holder of any Security.


 


SECTION
3.5. 
Registration, Transfer and Exchange Generally.


 


(a)           The Trustee shall cause to be kept at the
Corporate Trust Office a register (the “Securities
Register”) in which the registrar and transfer agent with respect to
the Securities (the “Securities Registrar”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Securities and of transfers and exchanges of Securities.
The Trustee shall at all times also be the Securities Registrar.  The provisions of Article VI shall
apply to the Trustee in its role as Securities Registrar.


 


(b)           Subject to compliance with Section 2.2(b),
upon surrender for registration of transfer of any Security at the offices or
agencies of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denominations of like tenor and aggregate principal amount.


 


(c)           At the option of the Holder, Securities may
be exchanged for other Securities of any authorized denominations, of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive.


 


27





















 


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


 


(e)           Every Security presented or surrendered for
transfer or exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or such Holder’s attorney duly authorized in writing.


 


(f)            No service charge shall be made to a Holder
for any transfer or exchange of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Securities.


 


(g)           Neither the Company nor the Trustee shall be
required pursuant to the provisions of this Section 3.5 (g): (i) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business fifteen (15) days before the day of
selection for redemption of Securities pursuant to Article XI and ending
at the close of business on the day of mailing of the notice of redemption or
(ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except, in the case of any such Security to be
redeemed in part, any portion thereof not to be redeemed.


 


(h)           The Company shall designate an office or
offices or agency or agencies where Securities may be surrendered for
registration or transfer or exchange. 
The Company initially designates the Corporate Trust Office as its
office and agency for such purposes.  The
Company shall give prompt written notice to the Trustee and to the Holders of
any change in the location of any such office or agency.


 


(i)            The Securities may only be transferred to a “Qualified
Purchaser” as such term is defined in Section 2(a)(51) of the Investment
Company Act.


 


(j)            Neither the Trustee nor the Securities
Registrar shall be responsible for ascertaining whether any transfer hereunder
complies with the registration provisions of or any exemptions from the
Securities Act, applicable state securities laws or the applicable laws of any
other jurisdiction, ERISA, the United States Internal Revenue Code of 1986, as
amended, or the Investment Company Act; provided, that if a certificate is
specifically required by the express terms of this Section 3.5 to be delivered
to the Trustee or the Securities Registrar by a Holder or transferee of a
Security, the Trustee and the Securities Registrar shall be under a duty to
receive and examine the same to determine whether or not the certificate
substantially conforms on its face to the requirements of this Indenture and shall
promptly notify the party delivering the same if such certificate does not
comply with such terms


 


SECTION
3.6. 
Mutilated, Destroyed, Lost and Stolen Securities.


 


(a)           If any mutilated Security is surrendered to
the Trustee together with such security or indemnity as may be required by the
Trustee to save the Company and the Trustee harmless, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of like tenor and aggregate principal amount and bearing a number not
contemporaneously outstanding.


 


28





















 


(b)           If there shall be delivered to the Trustee
(i) evidence to its satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by it to save
each of the Company and the Trustee harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and aggregate principal amount as such destroyed, lost or stolen
Security, and bearing a number not contemporaneously outstanding.


 


(c)           If any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, pay such Security.


 


(d)           Upon the issuance of any new Security under
this Section 3.6, 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.


 


(e)           Every new Security issued pursuant to this Section
3.6 in lieu of any mutilated, destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
duly issued hereunder.


 


(f)            The provisions of this Section 3.6 are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.


 


SECTION
3.7. 
Persons Deemed Owners.


 


The Company, the Trustee and
any agent of the Company or the Trustee shall treat the Person in whose name
any Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any interest on such Security and for all
other purposes whatsoever, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.


 


SECTION 3.8.  Cancellation.


 


All Securities surrendered
for payment, redemption, transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Securities surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder that the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 3.8, except as expressly
permitted by this Indenture. All canceled Securities shall be retained or
disposed of by the Trustee in accordance with its customary practices and the
Trustee shall deliver to the Company a certificate of such disposition.


 


29





















 


SECTION
3.9. Deferrals of Interest Payment Dates.


 


(a)           So long as no Event of Default has occurred
and is continuing, the Company shall have the right, at any time and from time
to time during the term of the Security, to defer the payment of interest on
the Securities for a period of up to eight (8) consecutive quarterly interest
payment periods (each such period, an “Extension
Period”), during which
Extension Period(s), the Company shall have the right to make no payments or
partial payments of interest on any Interest Payment Date (except any
Additional Tax Sums that otherwise may be due and payable).  No Extension Period shall end on a date other
than an Interest Payment Date and no Extension Period shall extend beyond the
Stated Maturity of the principal of the Securities.  No interest shall be due and payable during
an Extension Period, except at the end thereof. 
At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid on the Securities.  Prior to the termination of any such
Extension Period, the Company may extend such Extension Period and further
defer the payment of interest; provided,
that (i) all such previous and further extensions comprising such Extension
Period do not exceed eight (8) quarterly interest payment periods, (ii) no
Extension Period shall end on a date other than an Interest Payment Date and
(iii) no Extension Period shall extend beyond the Stated Maturity of the
principal of the Securities.  Upon the
termination of any such Extension Period and upon the payment of all accrued
and unpaid interest then due on any Interest Payment Date, the Company may
elect to begin a new Extension Period; provided,
that (i) such Extension Period does not exceed eight (8) quarterly interest
payment periods, (ii) no Extension Period shall end on a date other than an
Interest Payment Date and (iii) no Extension Period shall extend beyond the
Stated Maturity of the principal of the Securities.  The Company shall give the Holders of the
Securities and the Trustee written notice of its election to begin any such
Extension Period at least thirty (30) days’ prior to the next succeeding
Interest Payment Date on which interest on the Securities would be payable but
for such deferral.


 


(b)           In connection with any such Extension Period,
the Company shall be subject to the restrictions set forth in Section
10.6(a).


 


SECTION 3.10.  Reserved.


 


SECTION
3.11. 
Agreed Tax Treatment.


 


Each Security issued
hereunder shall provide that the Company and, by its acceptance or acquisition
of a Security or a beneficial interest therein, the Holder of, and any Person
that acquires a direct or indirect beneficial interest in, such Security, intend
and agree to treat such Security as indebtedness of the Company for United
States Federal, state and local tax purposes and to treat the Preferred
Securities (including but not limited to all payments and proceeds with respect
to the Preferred Securities) as an undivided beneficial ownership interest in
the Securities (and any other Trust property) (and payments and proceeds
therefrom, respectively) for United States Federal, state and local tax
purposes.  The provisions of this
Indenture shall be interpreted to further this intention and agreement of the
parties.


 


SECTION 3.12.  CUSIP Numbers.


 


The Company in issuing the
Securities may use “CUSIP” numbers (if then generally in use), and, if so, the
Trustee shall use “CUSIP” numbers in notices of redemption and other 


 


30





















 


similar or related materials as a convenience to Holders; provided, that any such notice or other
materials may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any notice
of redemption or other materials and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers.


 


ARTICLE IV


 


SATISFACTION
AND DISCHARGE


 


SECTION
4.1. 
Satisfaction and Discharge of Indenture.


 


This Indenture shall, upon
Company Request, cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for and as otherwise provided in this Section 4.1) and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when


 


(a)           either


 


(i)
all Securities theretofore authenticated and delivered (other than (A)
Securities that have been mutilated, destroyed, lost or stolen and that have
been replaced or paid as provided in Section 3.6 and (B) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust as provided in Section 10.2) have been delivered to the
Trustee for cancellation; or


 


(ii)
all such Securities not theretofore delivered to the Trustee for cancellation


 


(A)          have become due and payable, or


 


(B)           will become due and payable at their Stated
Maturity within one year of the date of deposit, or


 


(C)           are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,


 


and
the Company, in the case of subclause (ii)(A), (B) or (C) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for such
purpose (x) an amount in the currency or currencies in which the Securities are
payable, (y) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than the due date of any payment, money in an amount or (z)
a combination thereof, in each case 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 and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest (including any
Additional Interest) to the date of such deposit (in the case of Securities
that have become due and payable) or to the 


 


31





















 


Stated
Maturity (or any date of principal repayment upon early maturity) or Redemption
Date, as the case may be;


 


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


 


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


 


Notwithstanding the
satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee under Section 6.6, the obligations of the Company to any
Authenticating Agent under Section 6.11 and, if money shall have been
deposited with the Trustee pursuant to subclause (a)(ii) of this Section 4.1,
the obligations of the Trustee under Section 4.2 and Section 10.2(e)
shall survive.


 


SECTION
4.2. 
Application of Trust Money.


 


Subject to the provisions of
Section 10.2(e), all money deposited with the Trustee pursuant to Section
4.1 shall be held in trust and applied by the Trustee, in accordance with
the provisions of the Securities and this Indenture, to the payment in
accordance with Section 3.1, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium
and interest (including any Additional Interest) for the payment of which such
money or obligations have been deposited with or received by the Trustee.  Moneys held by the Trustee under this Section
4.2 shall not be subject to the claims of holders of Senior Debt under Article
XII.


 


ARTICLE V


 


REMEDIES


 


SECTION
5.1. 
Events of Default.


 


“Event of Default” means, wherever used herein with respect
to the Securities, any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):


 


(a)           default in the payment of any interest upon
any Security, including any Additional Interest in respect thereof, when it
becomes due and payable, and continuance of such default for a period of thirty
(30) days (subject to the deferral of any due date in the case of an Extension
Period); or


 


(b)           default in the payment of the principal of or
any premium on any Security at its Maturity; or


 


32





















 


(c)           default in the performance, or breach, of any
covenant or warranty in any material respect of the Company in this Indenture
or the Purchase Agreements and continuance of such default or breach for a
period of thirty (30) days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least twenty five percent (25%) in aggregate principal
amount of the Outstanding Securities a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder;


 


(d)           the entry by a court having jurisdiction in
the premises of a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of sixty (60) consecutive
days;


 


(e)           the institution by the Company of proceedings
to be adjudicated a bankrupt or insolvent, or the consent by the Company to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by the Company of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt or insolvent, or the taking of
corporate action by the Company in furtherance of any such action; or


 


(f)            the Trust shall have voluntarily or
involuntarily liquidated, dissolved, wound-up its business or otherwise
terminated its existence, except in connection with (1) the distribution
of the Securities to holders of the Preferred Securities in liquidation of
their interests in the Trust, (2) the redemption of all of the outstanding
Preferred Securities or (3) certain mergers, consolidations or
amalgamations, each as and to the extent permitted by the Trust Agreement.


 


SECTION
5.2. 
Acceleration of Maturity; Rescission and Annulment.


 


(a)           If an Event of Default occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than twenty
five percent (25%) in aggregate principal amount of the Outstanding Securities
may declare the principal amount of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided, that if, upon an Event of Default, the Trustee or the
Holders of not less than twenty five percent (25%) in principal amount of the
Outstanding Securities fail to declare the principal of all the Outstanding
Securities to be immediately due and payable, the holders of at least twenty
five percent (25%) in aggregate Liquidation Amount of the Preferred Securities
then outstanding shall have the right to make such declaration by a notice in
writing to the Property Trustee, the Company and the Trustee; and upon any such
declaration the principal amount of 


 


33





















 


and the accrued interest (including any
Additional Interest) on all the Securities shall become immediately due and
payable.


 


(b)           At any time after such a declaration of
acceleration with respect to Securities has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article V, the Holders of a majority in aggregate
principal amount of the Outstanding Securities, by written notice to the
Indenture Trustee, or the holders of a majority in aggregate Liquidation Amount
of the Preferred Securities, by written notice to the Property Trustee, 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:


 


(A)          all overdue installments of interest on all
Securities,


 


(B)           any accrued Additional Interest on all
Securities,


 


(C)           the principal of and any premium on any
Securities that have become due otherwise than by such declaration of
acceleration and interest (including any Additional Interest) thereon at the
rate borne by the Securities, and


 


(D)          all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, the Property Trustee and their agents and counsel; and


 


(ii)
 all Events of Default with respect to
Securities, other than the non-payment of the principal of Securities that has
become due solely by such acceleration, have been cured or waived as provided
in Section 5.13;


 


provided, that if the Holders of such Securities fail
to annul such declaration and waive such default, the holders of not less than
a majority in aggregate Liquidation Amount of the Preferred Securities then
outstanding shall also have the right to rescind and annul such declaration and
its consequences by written notice to the Property Trustee, the Company and the
Trustee, subject to the satisfaction of the conditions set forth in paragraph
(b) of this Section 5.2.  No such
rescission shall affect any subsequent default or impair any right consequent
thereon.


 


SECTION
5.3. 
Collection of Indebtedness and Suits for Enforcement by Trustee.


 


(a)           The Company covenants that if:


 


(i)  default is made in the payment of any
installment of interest (including any Additional Interest) on any Security
when such interest becomes due and payable and such default continues for a
period of thirty (30) days, or


 


(ii)  default is made in the payment of the
principal of and any premium on any Security at the Maturity thereof,


 


the Company will, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for
principal and 


 


34





















 


any premium and interest
(including any Additional Interest) and, in addition thereto, all amounts owing
the Trustee under Section 6.6.


 


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


 


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


 


SECTION
5.4. 
Trustee May File Proofs of Claim.


 


In case of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or similar judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or otherwise,
to take any and all actions authorized hereunder in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to first
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts owing the Trustee, any predecessor Trustee and other Persons
under Section 6.6.


 


SECTION
5.5. 
Trustee May Enforce Claim Without Possession of Securities.


 


All rights of action and
claims under this Indenture or the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, subject to Article XII and after
provision for the payment of all the amounts owing the Trustee, any predecessor
Trustee and other Persons under Section 6.6, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been
recovered.


 


SECTION
5.6. 
Application of Money Collected.


 


Any money or property
collected or to be applied by the Trustee with respect to the Securities
pursuant to this Article V shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of 


 


35





















 


principal or any premium or interest
(including any Additional Interest), upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:


 


FIRST: To the payment of all
amounts due the Trustee, any predecessor Trustee and other Persons under Section
6.6;


 


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


 


THIRD:  Subject to Article XII, to the payment
of the amounts then due and unpaid upon the Securities for principal and any
premium and interest (including any Additional 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
the Securities for principal and any premium and interest (including any
Additional Interest), respectively; and


 


FOURTH: The balance, if any,
to the Person or Persons entitled thereto.


 


SECTION
5.7. 
Limitation on Suits.


 


Subject to Section 5.8,
no Holder of any Securities shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture or for the appointment of
a custodian, receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:


 


(a)           such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the
Securities;


 


(b)           the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;


 


(c)           such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;


 


(d)           the Trustee after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding for
sixty (60) days; and


 


(e)           no direction inconsistent with such written
request has been given to the Trustee during such sixty (60)-day period by the
Holders of a majority in aggregate principal amount of the Outstanding
Securities;


 


it being understood and
intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing itself of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of
Securities, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.


 


36





















 


SECTION
5.8. 
Unconditional Right of Holders to Receive Principal, Premium,
if any, and Interest; Direct Action by
Holders of Preferred Securities.


 


Notwithstanding any other
provision in this Indenture, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
any premium on such Security at its Maturity and payment of interest (including
any Additional Interest) on such Security when due and payable and to institute
suit for the enforcement of any such payment, and such right shall not be
impaired without the consent of such Holder. Any registered holder of the
Preferred Securities shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(a) or Section 5.1(b), to
institute a suit directly against the Company for enforcement of payment to
such holder of principal of and any premium and interest (including any
Additional Interest) on the Securities having a principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities held by such holder.


 


SECTION
5.9. 
Restoration of Rights and Remedies.


 


If the Trustee, any Holder
or any holder of Preferred Securities has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee, such Holder or such holder of Preferred Securities, then and in
every such case the Company, the Trustee, such Holders and such holder of
Preferred Securities shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee, such Holder and such holder
of Preferred Securities shall continue as though no such proceeding had been
instituted.


 


SECTION
5.10. 
Rights and Remedies Cumulative.


 


Except as otherwise provided
in Section 3.6(f), no right or remedy herein conferred upon or reserved
to the Trustee or the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.


 


SECTION
5.11. 
Delay or Omission Not Waiver.


 


No delay or omission of the
Trustee, any Holder of any Securities or any holder of any Preferred Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein.  Every right and
remedy given by this Article V or by law to the Trustee or to the
Holders and the right and remedy given to the holders of Preferred Securities
by Section 5.8 may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.


 


SECTION
5.12. 
Control by Holders.


 


The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities (or, as
the case may be, the holders of a majority in aggregate Liquidation Amount of
Preferred Securities)  shall have the
right to direct the time, method and place of conducting any 


 


37





















 


proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee; provided, that:


 


(a)           such direction shall not be in conflict with
any rule of law or with this Indenture,


 


(b)           the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction, and


 


(c)           subject to the provisions of Section 6.2,
the Trustee shall have the right to decline to follow such direction if a
Responsible Officer or Officers of the Trustee shall, in good faith, reasonably
determine that the proceeding so directed would be unjustly prejudicial to the
Holders not joining in any such direction or would involve the Trustee in
personal liability.


 


SECTION
5.13. 
Waiver of Past Defaults.


 


(a)           The Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities or the holders of not
less than a majority in aggregate Liquidation Amount of the Preferred
Securities may waive any past Event of Default hereunder and its consequences
except an Event of Default:


 


(i)  in the payment of the principal of or any
premium or interest (including any Additional Interest) on any Outstanding
Security (unless such Event of Default has been cured and the Company has paid
to or deposited with the Trustee a sum sufficient to pay all installments of
interest (including any Additional Interest) due and past due and all principal
of and any premium on all Securities due otherwise than by acceleration), or


 


(ii)  in respect of a covenant or provision hereof
that under Article IX cannot be modified or amended without the consent
of each Holder of any Outstanding Security.


 


(b)           Any such waiver shall be deemed to be on
behalf of the Holders of all the Outstanding Securities or, in the case of a
waiver by holders of Preferred Securities issued by such Trust, by all holders
of Preferred Securities.


 


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


 


SECTION
5.14. 
Undertaking for Costs.


 


All parties to this
Indenture agree, and each Holder of any Security by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the 


 


38





















 


aggregate more than ten percent (10%) in
aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
or any premium on the Security after the Stated Maturity or any interest
(including any Additional Interest) on any Security after it is due and
payable.


 


SECTION
5.15. 
Waiver of Usury, Stay or Extension Laws.


 


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


 


ARTICLE VI


 


THE
TRUSTEE


 


SECTION
6.1. 
Corporate Trustee Required.


 


There shall at all times be
a Trustee hereunder with respect to the Securities.  The Trustee shall be a corporation organized
and doing business under the laws of the United States or of any state thereof,
authorized to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or examination by
Federal or state authority and having an office within the United States. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of such supervising or examining authority, then,
for the purposes of this Section 6.1, 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.  If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.1, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VI.


 


SECTION
6.2. 
Certain Duties and Responsibilities.


 


Except during the
continuance of an Event of Default:


 


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


 


(ii)  in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture; provided, that 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 substantially conform on their face
to the requirements of this Indenture.


 


39





















 


(b)           If an Event of Default known to the Trustee
has occurred and is continuing, the Trustee shall, prior to the receipt of
directions, if any, from the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities (or, if applicable, from the
holders of at least a majority in aggregate Liquidation Amount of Preferred
Securities), exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs.


 


(c)           Notwithstanding the foregoing, no provision
of this Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 6.2.  To the extent that, at law or in equity, the
Trustee has duties and liabilities relating to the Holders, the Trustee shall
not be liable to any Holder or any holder of Preferred Securities for the
Trustee’s good faith reliance on the provisions of this Indenture.  The provisions of this Indenture, to the
extent that they restrict the duties and liabilities of the Trustee otherwise
existing at law or in equity, are agreed by the Company and the Holders and the
holders of Preferred Securities to replace such other duties and liabilities of
the Trustee.


 


(d)           No provisions of this Indenture shall be
construed to relieve the Trustee from liability with respect to matters that
are within the authority of the Trustee under this Indenture for its own negligent
action, negligent failure to act or willful misconduct, except that:


 


(i)  the Trustee shall not be liable for any error
or judgment made in good faith by an authorized officer of the Trustee, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts;


 


(ii)  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 at least a majority in aggregate principal
amount of the Outstanding Securities (or, as the case may be, the holders of a
majority in aggregate Liquidation Amount of Preferred Securities) relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee under this Indenture; and


 


(iii)  the Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company and money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law.


 


(e)           If at any time the Trustee hereunder is not
the same Person as the Property Trustee under the Trust Agreement:


 


(i)  whenever a reference is made herein to the
dissolution, termination or liquidation of the Trust, the Trustee shall be
entitled to assume that no such dissolution, termination, or liquidation has
occurred so long as the Securities are or continue to be 


 


40





















 


registered in the name of
such Property Trustee, and the Trustee shall be charged with notice or
knowledge of such dissolution, termination or liquidation only upon written
notice thereof given to the Trustee by the Depositor under the Trust Agreement;
and


 


(ii)  the Trustee shall not be charged with notice
or knowledge that any Person is a holder of Preferred Securities or Common
Securities issued by the Trust or whether any group of holders of Preferred
Securities constitutes any specified percentage of all outstanding Preferred
Securities for any purpose under this Indenture, unless and until the Trustee
is furnished with a list of holders by such Property Trustee and the aggregate
Liquidation Amount of the Preferred Securities then outstanding.  The Trustee may conclusively rely and shall
be protected in relying on such list.


 


(f)            Notwithstanding Section 1.10, the
Trustee shall not, and shall not be deemed to, owe any fiduciary duty to the
holders of any of the Trust Securities issued by the Trust and shall not be
liable to any such holder (other than for the willful misconduct or negligence
of the Trustee) if the Trustee in good faith (i) pays over or distributes to a
registered Holder of the Securities or to the Company or to any other Person,
cash, property or securities to which such holders of such Trust Securities
shall be entitled or (ii) takes any action or omits to take any action at the
request of the Holder of such Securities. 
Nothing in this paragraph shall affect the obligation of any other such Person
to hold such payment for the benefit of, and to pay such amount over to, such
holders of Preferred Securities or Common Securities or their representatives.


 


SECTION
6.3. 
Notice of Defaults.


 


Within ninety (90) days
after the occurrence of any default actually known to the Trustee, the Trustee
shall give the Holders notice of such default unless such default shall have
been cured or waived;  provided, that except in the case of a default in the payment of the
principal of or any premium or interest on any Securities, the Trustee shall be
fully protected in withholding the notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that withholding
the notice is in the interest of holders of Securities; and provided, further, that in the case of any default of the
character specified in Section 5.1(c), no such notice to Holders shall
be given until at least thirty (30) days after the occurrence thereof. For the
purpose of this Section 6.3, the term “default” means any event which
is, or after notice or lapse of time or both would become, an Event of Default.


 


SECTION
6.4. 
Certain Rights of Trustee.


 


Subject to the provisions of
Section 6.2:


 


(a)           the Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting in good faith and in
accordance with the terms hereof upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note 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)           if (i) in performing its duties under this
Indenture the Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Indenture 


 


41





















 


the Trustee finds ambiguous or inconsistent
with any other provisions contained herein or (iii) the Trustee is unsure of
the application of any provision of this Indenture, then, except as to any
matter as to which the Holders are entitled to decide under the terms of this
Indenture, the Trustee shall deliver a notice to the Company requesting the
Company’s written instruction as to the course of action to be taken and the
Trustee shall take such action, or refrain from taking such action, as the
Trustee shall be instructed in writing to take, or to refrain from taking, by
the Company; provided, that if
the Trustee does not receive such instructions from the Company within ten
Business Days after it has delivered such notice or such reasonably shorter
period of time set forth in such notice the Trustee may, but shall be under no
duty to, take such action, or refrain from taking such action, as the Trustee
shall deem advisable and in the best interests of the Holders, in which event
the Trustee shall have no liability except for its own negligence, bad faith or
willful misconduct;


 


(c)           any request or direction of the Company shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;


 


(d)           the Trustee may consult with counsel (which
counsel may be counsel to the Trustee, the Company or any of its Affiliates,
and may include any of its employees) and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;


 


(e)           the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders or any holder of Preferred
Securities pursuant to this Indenture, unless such Holders (or such holders of
Preferred Securities) shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses (including reasonable
attorneys’ fees and expenses) and liabilities that might be incurred by it in
compliance with such request or direction, including reasonable advances as may
be requested by the Trustee;


 


(f)            the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, indenture, note or other paper or document, but the Trustee in its
discretion may make such inquiry or investigation into such facts or matters as
it may see fit, and, if the Trustee shall determine to make such inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;


 


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


 


(h)           whenever in the administration of this
Indenture the Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action with
respect to enforcing any remedy or right hereunder, the Trustees (i) may
request instructions from the Holders (which instructions may only be given by
the Holders of the same aggregate principal amount of Outstanding Securities as
would be entitled to direct the Trustee 


 


42





















 


under this Indenture in respect of such
remedy, right or action), (ii) may refrain from enforcing such remedy or right
or taking such action until such instructions are received and (iii) shall be
protected in acting in accordance with such instructions;


 


(i)            except as otherwise expressly provided by
this Indenture, the Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Indenture;


 


(j)            without prejudice to any other rights
available to the Trustee under applicable law, when the Trustee incurs expenses
or renders services in connection with any bankruptcy, insolvency or other
proceeding referred to in clauses (d) or (e) of the definition of Event of
Default, such expenses (including legal fees and expenses of its agents and
counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy laws or law relating to
creditors rights generally;


 


(k)           whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers’
Certificate addressing such matter, which, upon receipt of such request, shall
be promptly delivered by the Company;


 


(l)            the Trustee shall not be charged with
knowledge of any Event of Default unless either (i) a Responsible Officer of
the Trustee shall have actual knowledge or (ii) the Trustee shall have received
written notice thereof from the Company or a Holder; and


 


(m)          in the event that the Trustee is also acting
as Paying Agent, Authenticating Agent or Securities Registrar hereunder, the
rights and protections afforded to the Trustee pursuant to this Article VI
shall also be afforded such Paying Agent, Authenticating Agent, or Securities
Registrar.


 


SECTION
6.5. 
May Hold Securities.


 


The Trustee, any
Authenticating Agent, any Paying Agent, any Securities Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Securities Registrar or such other agent.


 


SECTION
6.6. 
Compensation; Reimbursement; Indemnity.


 


(a)           The Company agrees:


 


(i)  to pay to the Trustee from time to time
reasonable compensation for all services rendered by it hereunder in such
amounts as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);


 


(ii)  to reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any 


 


43





















 


provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful misconduct; and


 


(iii)  to the fullest extent permitted by applicable
law, to indemnify the Trustee and its Affiliates, and their officers,
directors, shareholders, agents, representatives and employees for, and to hold
them harmless against, any loss, damage, liability, tax (other than income,
franchise or other taxes imposed on amounts paid pursuant to (i) or (ii)
hereof), penalty, expense or claim of any kind or nature whatsoever incurred
without negligence, bad faith or willful misconduct on its part arising out of
or in connection with the acceptance or administration of this trust or the
performance of the Trustee’s duties hereunder, including the costs and expenses
of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.


 


(b)           To secure the Company’s payment obligations
in this Section 6.6, the Company hereby grants and pledges to the
Trustee and the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, other than money or property held
in trust to pay principal and interest on particular Securities.  Such lien shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee.


 


(c)           The obligations of the Company under this Section
6.6 shall survive the satisfaction and discharge of this Indenture and the
earlier resignation or removal of the Trustee.


 


(d)           In no event shall the Trustee be liable for
any indirect, special, punitive or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits, even if the Trustee
has been advised of the likelihood of such loss or damage and regardless of the
form of action.


 


(e)           In no event shall the Trustee be liable for
any failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Indenture.


 


SECTION
6.7. 
Resignation and Removal; Appointment of Successor.


 


(a)           No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article VI shall
become effective until the acceptance of appointment by the successor Trustee
under Section 6.8.


 


(b)           The Trustee may resign at any time by giving
written notice thereof to the Company.


 


(c)           Unless an Event of Default shall have
occurred and be continuing, the Trustee may be removed at any time by the
Company by a Board Resolution.  If an
Event of Default shall have occurred and be continuing, the Trustee may be
removed by Act of the Holders of a 


 


44





















 


majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.


 


(d)           If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of
Trustee for any reason, at a time when no Event of Default shall have occurred
and be continuing, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee, and such successor Trustee and the retiring Trustee shall
comply with the applicable requirements of Section 6.8. If the Trustee
shall resign, be removed or become incapable of acting, or if a vacancy shall
occur in the office of Trustee for any reason, at a time when an Event of
Default shall have occurred and be continuing, the Holders, by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities, shall promptly appoint a successor Trustee, and such successor
Trustee and the retiring Trustee shall comply with the applicable requirements
of Section 6.8. If no successor Trustee shall have been so appointed by
the Company or the Holders and accepted appointment within sixty (60) days
after the giving of a notice of resignation by the Trustee or the removal of
the Trustee in the manner required by Section 6.8, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf of
such Holder and all others similarly situated, and any resigning Trustee may,
at the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Trustee.


 


(e)           The Company shall give notice to all Holders
in the manner provided in Section 1.6 of each resignation and each
removal of the Trustee and each appointment of a successor Trustee.  Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.


 


SECTION
6.8. 
Acceptance of Appointment by Successor.


 


(a)           In case of the appointment hereunder of a
successor Trustee, each 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)           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 rights, powers and
trusts referred to in paragraph (a) of this Section 6.8.


 


(c)           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 VI.


 


SECTION
6.9. 
Merger, Conversion, Consolidation or Succession to Business.


 


Any Person into which the
Trustee may be merged or converted or with which it may be consolidated, or any
Person resulting from any merger, conversion or consolidation to which the 


 


45





















 


Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, provided, that such
Person shall be otherwise qualified and eligible under this Article VI.
In case any Securities shall have been authenticated, but not delivered, by the
Trustee then in office, any successor by merger, conversion or consolidation or
as otherwise provided above in this Section 6.9 to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated, and in case any Securities shall not have been authenticated,
any successor to the Trustee may authenticate such Securities either in the
name of any predecessor Trustee or in the name of such successor Trustee, and
in all cases the certificate of authentication shall have the full force which
it is provided anywhere in the Securities or in this Indenture that the
certificate of the Trustee shall have.


 


SECTION
6.10. 
Not Responsible for Recitals or Issuance of Securities.


 


The recitals contained
herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.


 


SECTION
6.11. 
Appointment of Authenticating Agent.


 


(a)           The Trustee may appoint an Authenticating
Agent or Agents with respect to the Securities, which shall be authorized to
act on behalf of the Trustee to authenticate Securities issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 3.6, 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. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee’s certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, or of any State
or Territory thereof or the District of Columbia, authorized under such laws to
act as Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section 6.11 the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section 6.11, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.11.


 


(b)           Any Person into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Person succeeding to 


 


46





















 


all or substantially all of the corporate
trust business of an Authenticating Agent shall be the successor Authenticating
Agent hereunder, provided such Person shall be otherwise eligible under this Section
6.11, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.


 


(c)           An Authenticating Agent may resign at any
time by giving written notice thereof to the Trustee and to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.11, the Trustee may
appoint a successor Authenticating Agent eligible under the provisions of this Section
6.11, which shall be acceptable to the Company, and shall give notice of
such appointment to all Holders. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent.


 


(d)           The Company agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section 6.11 in such amounts as the Company and the
Authenticating Agent shall agree from time to time.


 


(e)           If an appointment of an Authenticating Agent
is made pursuant to this Section 6.11, the Securities may have endorsed
thereon, in addition to the Trustee’s certificate of authentication, an
alternative certificate of authentication in the following form:


 


This is one of the
Securities referred to in the within mentioned Indenture.


 


Dated:


 


	
   

  	
  JPMORGAN CHASE BANK,
  NATIONAL 

  ASSOCIATION, not in its individual capacity, but 

  solely as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authenticating
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


ARTICLE VII


 


HOLDER’S
LISTS AND REPORTS BY COMPANY


 


SECTION
7.1. 
Company to Furnish Trustee Names and Addresses of Holders.


 


The Company will furnish or
cause to be furnished to the Trustee:


 


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(a)           semiannually, on or before June 30 and
December 31 of each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not more than
fifteen (15) days prior to the delivery thereof, and


 


(b)           at such other times as the Trustee may
request in writing, within thirty (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
fifteen (15) days prior to the time such list is furnished,


 


in each case to the extent
such information is in the possession or control of the Company and has not
otherwise been received by the Trustee in its capacity as Securities Registrar.


 


SECTION
7.2. 
Preservation of Information, Communications to Holders.


 


(a)           The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its capacity
as Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.


 


(b)           The rights of Holders to communicate with
other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided in the Trust Indenture Act.


 


(c)           Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.


 


SECTION
7.3. 
Reports by Company.


 


(a)           The Company shall furnish to the Holders and
to prospective purchasers of Securities, upon their request, the information
required to be furnished pursuant to Rule 144A(d)(4) under the Securities Act.
The delivery requirement set forth in the preceding sentence may be satisfied
by compliance with Section 7.3(b) hereof.


 


(b)           The Company shall furnish to each of (i) the
Trustee, (ii) the Holders and to subsequent holders of Securities, (iii) Cohen
Bros. & Company, 450 Park, 23rd Floor, New York,
NY 10022, Attn:  Mitchell Kahn or such
other address as designated by Cohen Bros. & Company) and (iv) any
beneficial owner of the Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by Cohen Bros.
& Company), a duly completed and executed certificate substantially and
substantively in the form attached hereto as Exhibit A, including the
financial statements referenced in such Exhibit, which certificate and financial
statements shall be so furnished by the Company not later than forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year of the Company and not later than ninety (90) days after the end of each
fiscal year of the Company.  The delivery
requirements under this Section 7.3(b) may be satisfied by compliance
with Section 8.16(b) of the Trust Agreement.


 


48





















 


(c)           If the Company intends to file its annual and
quarterly information with the Securities and Exchange Commission (the “Commission”) in electronic form pursuant
to Regulation S-T of the Commission using the Commission’s Electronic Data
Gathering, Analysis and Retrieval (“EDGAR”)
system, the Company shall notify the Trustee in the manner prescribed herein of
each such annual and quarterly filing. 
The Trustee is hereby authorized and directed to access the EDGAR system
for purposes of retrieving the financial information so filed.  Compliance with the foregoing shall
constitute delivery by the Company of its financial statements to the Trustee
in compliance with the provisions of Section 314(a) of the Trust Indenture Act,
if applicable.  The Trustee shall have no
duty to search for or obtain any electronic or other filings that the Company
makes with the Commission, regardless of whether such filings are periodic,
supplemental or otherwise.  Delivery of
reports, information and documents to the Trustee pursuant to this Section
7.3(c) shall be solely for purposes of compliance with this Section
7.3(c) and, if applicable, with Section 314(a) of the Trust Indenture
Act.  The Trustee’s receipt of such
reports, information and documents shall not constitute notice to it of the
content thereof or any matter determinable from the content thereof, including
the Company’s compliance with any of its covenants hereunder, as to which the
Trustee is entitled to rely upon Officers’ Certificates.


 


ARTICLE VIII


 


CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE


 


SECTION 8.1.  Company May
Consolidate, Etc., Only on Certain Terms.


 


The Company shall not
consolidate with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and no
Person shall consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless:


 


(a)           if the Company shall consolidate with or
merge into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person that acquires
by conveyance or transfer, or that leases, the properties and assets of the
Company substantially as an entirety shall be an entity organized and existing
under the laws of the United States of America or any State or Territory
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest (including any Additional Interest) on all the
Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;


 


(b)           immediately after giving effect to such
transaction, no Event of Default, and no event that, after notice or lapse of
time, or both, would constitute an Event of Default, shall have happened and be
continuing; and


 


(c)           the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for 


 


49





















 


relating to such transaction have been complied with;
and the Trustee may rely upon such Officers’ Certificate and Opinion of Counsel
as conclusive evidence that such transaction complies with this Section 8.1.


 


SECTION 8.2.  Successor
Company Substituted.


 


(a)           Upon any consolidation or merger by the
Company with or into any other Person, or any conveyance, transfer or lease by
the Company of its properties and assets substantially as an entirety to any
Person in accordance with Section 8.1 and the execution and delivery to
the Trustee of the supplemental indenture described in Section 8.1(a),
the successor entity formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance or
transfer, following the execution and delivery of such supplemental indenture,
the Company shall be discharged from all obligations and covenants under the
Indenture and the Securities.


 


(b)           Such successor Person may cause to be
executed, and may issue either in its own name or in the name of the Company,
any or all of the Securities issuable hereunder that theretofore shall not have
been signed by the Company and delivered to the Trustee; and, upon the order of
such successor Person instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities that previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities that such successor Person thereafter shall
cause to be executed and delivered to the Trustee on its behalf. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture.


 


(c)           In case of any such consolidation, merger,
sale, conveyance or lease, such changes in phraseology and form may be made in
the Securities thereafter to be issued as may be appropriate to reflect such occurrence.


 


ARTICLE IX


 


SUPPLEMENTAL
INDENTURES


 


SECTION 9.1.  Supplemental Indentures without Consent of Holders.


 


Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form reasonably satisfactory to the Trustee, for any of
the following purposes:


 


(a)           to evidence the succession of another Person to
the Company, and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or


 


(b)           to evidence and provide for the acceptance of
appointment hereunder by a successor trustee; or


 


50





















 


(c)           to cure any ambiguity, to correct or supplement
any provision herein that may be defective or inconsistent with any other
provision herein, or to make or amend any other provisions with respect to
matters or questions arising under this Indenture, which shall not be
inconsistent with the other provisions of this Indenture, provided, that such action pursuant to
this clause (c) shall not adversely affect in any material respect the
interests of any Holders or the holders of the Preferred Securities; or


 


(d)           to comply with the rules and regulations of
any securities exchange or automated quotation system on which any of the
Securities may be listed, traded or quoted; or


 


(e)           to add to the covenants, restrictions or
obligations of the Company or to add to the Events of Default, provided, that such action pursuant to
this clause (e) shall not adversely affect in any material respect the
interests of any Holders or the holders of the Preferred Securities; or


 


(f)            to modify, eliminate or add to any provisions
of the Indenture or the Securities to such extent as shall be necessary to
ensure that the Securities are treated as indebtedness of the Company for
United States Federal income tax purposes, provided,
that such action pursuant to this clause (f) shall not adversely affect in any
material respect the interests of any Holders or the holders of the Preferred
Securities.


 


SECTION 9.2.  Supplemental Indentures with Consent of Holders.


 


(a)           Subject to Section 9.1, with the
consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture; provided, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security,


 


(i)  change the Stated Maturity of the principal
or any premium of any Security or change the date of payment of any installment
of interest (including any Additional Interest) on any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof or change the place of payment where, or the coin
or currency in which, any Security or interest thereon is payable, or restrict
or impair the right to institute suit for the enforcement of any such payment
on or after such date, or


 


(ii)  reduce the percentage in aggregate principal
amount of the Outstanding Securities, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with any provision of this Indenture or
of defaults hereunder and their consequences provided for in this Indenture, or


 


(iii)  modify any of the
provisions of this Section 9.2, Section 5.13 or Section 10.7,
except to increase any percentage in aggregate principal amount of the
Outstanding Securities, the consent of whose Holders is required for any
reason, or to provide that 


 


51





















 


certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security;


 


provided, further,
that, so long as any Preferred Securities remain outstanding, no amendment
under this Section 9.2 shall be effective until the holders of a
majority in Liquidation Amount of the Preferred Securities shall have consented
to such amendment; provided, further, that if the consent of the Holder
of each Outstanding Security is required for any amendment under this
Indenture, such amendment shall not be effective until the holder of each
Outstanding Preferred Security shall have consented to such amendment.


 


(b)           It shall not be necessary for any Act of
Holders under this Section 9.2 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.


 


SECTION 9.3.  Execution of Supplemental Indentures.


 


In executing or accepting
the additional trusts created by any supplemental indenture permitted by this Article
IX or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and shall be fully protected in
conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and that all conditions precedent herein provided
for relating to such action have been complied with. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects
the Trustee’s own rights, duties, indemnities or immunities under this
Indenture or otherwise.  Copies of the
final form of each supplemental indenture shall be delivered by the Trustee at
the expense of the Company to each Holder, and, if the Trustee is the Property
Trustee, to each holder of Preferred Securities, promptly after the execution
thereof.


 


SECTION 9.4.  Effect of Supplemental Indentures.


 


Upon the execution of any
supplemental indenture under this Article IX, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities and
every holder of Preferred Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.


 


SECTION 9.5.  Reference in Securities to Supplemental Indentures.


 


Securities authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article
IX may, and shall if required by the Company, bear
a notation in form approved by the Company as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.


 


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ARTICLE X


 


COVENANTS


 


SECTION 10.1.  Payment of Principal, Premium, if
any, and Interest.


 


The Company covenants and
agrees for the benefit of the Holders of the Securities that it will duly and
punctually pay the principal of and any premium and interest (including any
Additional Interest) on the Securities in accordance with the terms of the
Securities and this Indenture.  As of the
date of this Indenture, the Company represents that it has no present intention
to exercise its right under Section 3.9 to defer payments of interest on
the Securities.


 


SECTION 10.2.  Money for
Security Payments to be Held in Trust.


 


(a)           If the Company shall at any time act as its
own Paying Agent with respect to the Securities, it will, on or before each due
date of the principal of and any premium or interest (including any Additional
Interest) on the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium
or interest (including Additional Interest) so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee in writing of its failure so to act.


 


(b)           Whenever the Company shall have one or more
Paying Agents, it will, prior to 10:00 a.m., New York City time, on each due date
of the principal of or any premium or interest (including any Additional
Interest) on any Securities, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided in the Trust Indenture Act and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.


 


(c)           The Company will cause each Paying Agent for
the Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 10.2, that such Paying Agent will (i)
comply with the provisions of this Indenture and the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.


 


(d)           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 by Company Order 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 trusts 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.


 


(e)           Any money deposited with the Trustee or any
Paying Agent, or then held by the Company in trust for the payment of the
principal of and any premium or interest (including any Additional Interest) on
any Security and remaining unclaimed for two years after such principal 


 


53





















 


and any premium or interest (including
Additional Interest) has become due and payable shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be paid on Company Request to the Company, or (if then held by the
Company) shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than thirty (30) days from the date
of such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.


 


SECTION 10.3.  Statement as to Compliance.


 


The Company shall deliver to
the Trustee, within one hundred and twenty (120) days after the end of each
fiscal year of the Company ending after the date hereof, an Officers’
Certificate covering the preceding calendar year, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.  The delivery requirements of this Section
10.3 may be satisfied by compliance with Section 8.16(a) of the Trust
Agreement.


 


SECTION
10.4.  Calculation
Agent.


 


(a)           The Company hereby agrees that for so long as
any of the Securities remain Outstanding, there will at all times be an agent
appointed to calculate LIBOR in respect of each Interest Payment Date in
accordance with the terms of Schedule A (the “Calculation Agent”). 
The Company has initially appointed the Property Trustee as Calculation
Agent for purposes of determining LIBOR for each Interest Payment Date.  The Calculation Agent may be removed by the
Company at any time.  So long as the
Property Trustee holds any of the Securities, the Calculation Agent shall be
the Property Trustee, except as described in the immediately preceding
sentence.  If the Calculation Agent is
unable or unwilling to act as such or is removed by the Company, the Company
will promptly appoint as a replacement Calculation Agent the London office of a
leading bank which is engaged in transactions in Eurodollar deposits in the
international Eurodollar market and which does not control or is not controlled
by or under common control with the Company or its Affiliates.  The Calculation Agent may not resign its
duties without a successor having been duly appointed.


 


(b)           The Calculation Agent shall be required to
agree that, as soon as possible after 11:00 a.m. (London time) on each LIBOR
Determination Date (as defined in Schedule A), but in no event later
than 11:00 a.m. (London time) on the Business Day immediately following each
LIBOR Determination Date, the Calculation Agent will calculate the interest
rate (the Interest 


 


54





















 


Payment shall be rounded to the nearest cent,
with half a cent being rounded upwards) for the related Interest Payment Date,
and will communicate such rate and amount to the Company, the Trustee, each
Paying Agent and the Depositary. The Calculation Agent will also specify to the
Company the quotations upon which the foregoing rates and amounts are based
and, in any event, the Calculation Agent shall notify the Company before 5:00
p.m. (London time) on each LIBOR Determination Date that either:  (i) it has determined or is in the
process of determining the foregoing rates and amounts or (ii) it has not
determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. 
The Calculation Agent’s determination of the foregoing rates and amounts
for any Interest Payment Date will (in the absence of manifest error) be final
and binding upon all parties.  For the
sole purpose of calculating the interest rate for the Securities, “Business Day”
shall be defined as any day on which dealings in deposits in Dollars are
transacted in the London interbank market.


 


SECTION 10.5.  Additional Tax Sums.


 


So long as no Event of
Default has occurred and is continuing, if (a) the Trust is the Holder of all of
the Outstanding Securities and (b) a Tax Event described in clause (i) or (iii)
in the definition of Tax Event in Section 1.1 hereof has occurred and is
continuing, the Company shall pay to the Trust (and its permitted successors or
assigns under the related Trust Agreement) for so long as the Trust (or its
permitted successor or assignee) is the registered holder of the Outstanding
Securities, such amounts as may be necessary in order that the amount of
Distributions (including any Additional Interest Amount (as defined in the
Trust Agreement)) then due and payable by the Trust on the Preferred Securities
and Common Securities that at any time remain outstanding in accordance with
the terms thereof shall not be reduced as a result of any Additional Taxes arising
from such Tax Event (additional such amounts payable by the Company to the
Trust, the “Additional Tax Sums”). 
Whenever in this Indenture or the Securities there is a reference in any
context to the payment of principal of or interest on the Securities, such
mention shall be deemed to include mention of the payments of the Additional
Tax Sums provided for in this Section 10.5 to the extent that, in such
context, Additional Tax Sums are, were or would be payable in respect thereof
pursuant to the provisions of this Section 10.5 and express mention of
the payment of Additional Tax Sums (if applicable) in any provisions hereof
shall not be construed as excluding Additional Tax Sums in those provisions
hereof where such express mention is not made; provided,
that the deferral of the payment of interest pursuant to Section 3.9 on
the Securities shall not defer the payment of any Additional Tax Sums that may
be due and payable.


 


SECTION 10.6.  Additional Covenants.


 


The Company covenants and
agrees with each Holder of Securities that if an Event of Default shall have
occurred and be continuing or the Company shall have given notice of its
election to begin an Extension Period with respect to the Securities or such
Extension Period, or any extension thereof, shall be continuing, it shall not
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company’s
units of limited partnership interests or (ii) make any payment of principal of
or any interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari
passu in all respects with or junior in interest to this Security
(other than (a) repurchases, redemptions or other acquisitions of units of
limited partnership interests of the Company in connection with (1) any
employment contract, benefit plan or other similar 


 


55





















 


arrangement with or for the
benefit of any one or more employees, officers, directors or consultants, (2) a
dividend reinvestment or limited partnership interests purchase plan and (3)
the issuance of limited partnership interests of the Company (or securities
convertible into or exercisable for such units of limited partnership
interests) as consideration in an acquisition transaction entered into prior to
the applicable Extension Period, (b) as a result of an exchange or conversion
of any series of the Company’s limited partnership interests (or any limited
partnership interests of a Subsidiary) for any series of the Company’s limited
partnership interests or of any series of the Company’s indebtedness for any
series of the Company’s limited partnership interests, (c)  any declaration of a dividend in connection
with any Rights Plan, the issuance of rights, limited partnership interests or
other property under any Rights Plan, or the redemption or repurchase of rights
pursuant thereto or (d) any dividend in the form of limited partnership
interests, warrants, options or other rights where the dividend limited
partnership interests or the limited partnership interests issuable upon
exercise of such warrants, options or other rights is the same limited
partnership interests as that on which the dividend is being paid or ranks pari passu with or junior to such limited
partnership interests.


 


(a)           The Company also covenants with each Holder
of Securities (i) to hold, directly or indirectly, one hundred percent (100%)
of the Common Securities of the Trust, provided, that any permitted successor of the
Company hereunder may succeed to the Company’s ownership of such Common
Securities, (ii) as holder of such Common Securities, not to voluntarily
dissolve, wind-up or liquidate the Trust other than (A) in connection with a
distribution of the Securities to the holders of the Preferred Securities in
liquidation of the Trust or (B) in connection with certain mergers,
consolidations or amalgamations permitted by the Trust Agreement and (iii) to
use its reasonable commercial efforts, consistent with the terms and provisions
of the Trust Agreement, to cause the Trust to continue to be taxable as a
grantor trust and not as a corporation for United States Federal income tax
purposes.


 


(b)           The Company also agrees to use its reasonable
efforts to meet the requirements to enable the Parent REIT (as defined in the
Purchase Agreements) to qualify, for the fiscal year ending December 31, 2004,
and all future years, as a real estate investment trust under the Internal
Revenue Code of 1986, as amended.


 


SECTION 10.7.  Waiver of Covenants.


 


The Company may omit in any
particular instance to comply with any covenant or condition contained in Section
10.6 if, before or after the time for such compliance, the Holders of at
least a majority in aggregate principal amount of the Outstanding Securities
shall, by Act of such Holders, and at least a majority of the aggregate
Liquidation Amount of the Preferred Securities then outstanding, by consent of
such holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company in
respect of any such covenant or condition shall remain in full force and
effect.


 


SECTION 10.8.  Treatment of Securities.


 


The Company will treat the
Securities as indebtedness, and the amounts, other than payments of principal,
payable in respect of the principal amount of such Securities as interest, 


 


56





















 


for all U.S. federal income tax purposes.  All payments in respect of the Securities
will be made free and clear of U.S. withholding tax to any beneficial owner
thereof that has provided an Internal Revenue Service Form W-9 or W-8BEN (or
any substitute or successor form) establishing its U.S. or non-U.S. status for
U.S. federal income tax purposes, or any other applicable form establishing a
complete exemption from U.S. withholding tax.


 


ARTICLE XI


 


REDEMPTION
OF SECURITIES


 


SECTION 11.1.  Optional Redemption.


 


The Company may, at its
option, on any Interest Payment Date, on or after July 30, 2010, redeem the
Securities in whole at any time or in part from time to time, at a Redemption
Price equal to one hundred percent (100%) of the principal amount thereof (or
of the redeemed portion thereof, as applicable), together, in the case of any
such redemption, with accrued and unpaid interest, including any Additional
Interest, through but excluding the date fixed as the Redemption Date (the “Optional Redemption Price”).


 


SECTION 11.2.  Special Event Redemption.


 


Prior to July 30, 2010, upon
the occurrence and during the continuation of a Special Event, the Company may,
at its option, redeem the Securities, in whole but not in part, at a Redemption
Price equal to one hundred seven and one half percent (107.5%) of the principal
amount thereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date
fixed as the Redemption Date (the “Special
Redemption Price”).


 


SECTION 11.3.  Election to Redeem; Notice to Trustee.


 


The election of the Company
to redeem any Securities, in whole or in part, shall be evidenced by or
pursuant to a Board Resolution.  In case
of any redemption at the election of the Company, the Company shall, not less
than forty-five (45) days and not more than seventy-five (75) days prior to the
Redemption Date (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee and the Property Trustee under the Trust Agreement in
writing of such date and of the principal amount of the Securities to be
redeemed and provide the additional information required to be included in the
notice or notices contemplated by Section 11.5. In the case of any
redemption of Securities, in whole or in part, (a) prior to the expiration of
any restriction on such redemption provided in this Indenture or the Securities
or (b) pursuant to an election of the Company which is subject to a condition
specified in this Indenture or the Securities, the Company shall furnish the
Trustee with an Officers’ Certificate and an Opinion of Counsel evidencing
compliance with such restriction or condition.


 


SECTION 11.4.  Selection of
Securities to be Redeemed.


 


(a)           If less than all the Securities are to be
redeemed, the particular Securities to be redeemed shall be selected and
redeemed on a pro rata basis not more than sixty (60) days prior to the Redemption
Date by the Trustee from the Outstanding Securities not previously called for
redemption, provided, that the
unredeemed portion of the principal amount of any Security shall 


 


57





















 


be in an authorized denomination (which shall
not be less than the minimum authorized denomination) for such Security.


 


(b)           The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security that has been or is to be
redeemed.


 


(c)           The provisions of paragraphs (a) and (b) of
this Section 11.4 shall not apply with respect to any redemption
affecting only a single Security, whether such Security is to be redeemed in
whole or in part. In the case of any such redemption in part, the unredeemed
portion of the principal amount of the Security shall be in an authorized
denomination (which shall not be less than the minimum authorized denomination)
for such Security.


 


SECTION 11.5.  Notice of Redemption.


 


(a)           Notice of redemption shall be given not later
than the thirtieth (30th) day, and not earlier than the sixtieth (60th)
day, prior to the Redemption Date to each Holder of Securities to be redeemed,
in whole or in part (unless a shorter notice shall be satisfactory to the
Property Trustee under the related Trust Agreement).


 


(b)           With respect to Securities to be redeemed, in
whole or in part, each notice of redemption shall state:


 


(i)  the Redemption Date;


 


(ii)  the Redemption Price or, if the Redemption
Price cannot be calculated prior to the time the notice is required to be sent,
the estimate of the Redemption Price, as calculated by the Company, together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated on the fifth Business Day prior to the Redemption Date (and
if an estimate is provided, a further notice shall be sent of the actual
Redemption Price on the date that such Redemption Price is calculated);


 


(iii)  if less than all
Outstanding Securities are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the amount of and
particular Securities to be redeemed;


 


(iv)  that on the Redemption Date, the Redemption
Price will become due and payable upon each such Security or portion thereof,
and that any interest (including any Additional Interest) on such Security or
such portion, as the case may be, shall cease to accrue on and after said date;
and


 


(v)  the place or places
where such Securities are to be surrendered for payment of the Redemption
Price.


 


(c)           Notice of redemption of Securities to be
redeemed, in whole or in part, at the election of the Company shall be given by
the Company or, at the Company’s request, by the 


 


58





















 


Trustee in the name and at the expense of the
Company and shall be irrevocable. The notice if mailed in the manner provided
above shall be conclusively presumed to have been duly given, whether or not
the Holder receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.


 


SECTION 11.6.  Deposit of Redemption Price.


 


Prior to 10:00 a.m., New
York City time, on the Redemption Date specified in the notice of redemption
given as provided in Section 11.5, the Company will deposit with the
Trustee or with one or more Paying Agents (or if the Company is acting as its
own Paying Agent, the Company will segregate and hold in trust as provided in Section
10.2) an amount of money sufficient to pay the Redemption Price of, and any
accrued interest (including any Additional Interest) on, all the Securities (or
portions thereof) that are to be redeemed on that date.


 


SECTION 11.7.  Payment of
Securities Called for Redemption.


 


(a)           If any notice of redemption has been given as
provided in Section 11.5, the Securities or portion of Securities with
respect to which such notice has been given shall become due and payable on the
date and at the place or places stated in such notice at the applicable
Redemption Price, together with accrued interest (including any Additional
Interest) to the Redemption Date. On presentation and surrender of such
Securities at a Place of Payment specified in such notice, the Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable Redemption Price, together with accrued interest (including any
Additional Interest) to the Redemption Date.


 


(b)           Upon presentation of any Security redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities, of authorized denominations, in aggregate principal amount equal to
the unredeemed portion of the Security so presented and having the same Original
Issue Date, Stated Maturity and terms.


 


(c)           If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal of and any
premium on such Security shall, until paid, bear interest from the Redemption
Date at the rate prescribed therefor in the Security.


 


ARTICLE XII


 


SUBORDINATION
OF SECURITIES


 


SECTION 12.1.  Securities
Subordinate to Senior Debt.


 


The Company covenants and
agrees, and each Holder of a Security, by its acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII, the payment of the principal of and any
premium and interest (including any Additional Interest) on each and all of the
Securities are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt.


 


59





















 


SECTION 12.2.  No Payment
When Senior Debt in Default; Payment Over of Proceeds Upon
Dissolution, Etc.


 


(a)           In the event and during the continuation of
any default by the Company in the payment of any principal of or any premium or
interest on any Senior Debt (following any grace period, if applicable) when
the same becomes due and payable, whether at maturity or at a date fixed for
prepayment or by declaration of acceleration or otherwise, then, upon written
notice of such default to the Company by the holders of such Senior Debt or any
trustee therefor, unless and until such default shall have been cured or waived
or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made on account of the principal of or any premium or interest (including any
Additional Interest) on any of the Securities, or in respect of any redemption,
repayment, retirement, purchase or other acquisition of any of the Securities.


 


(b)           In the event of a bankruptcy, insolvency or
other proceeding described in clause (d) or (e) of the definition of Event of
Default (each such event, if any, herein sometimes referred to as a “Proceeding”), all Senior Debt (including
any interest thereon accruing after the commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in
cash, securities or other property, shall be made to any Holder of any of the
Securities on account thereof. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
entity provided for by a plan of reorganization or readjustment the payment of
which is subordinate, at least to the extent provided in these subordination
provisions with respect to the indebtedness evidenced by the Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment),
which would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Securities shall be paid or delivered directly to
the holders of Senior Debt in accordance with the priorities then existing
among such holders until all Senior Debt (including any interest thereon
accruing after the commencement of any Proceeding) shall have been paid in
full.


 


(c)           In the event of any Proceeding, after payment
in full of all sums owing with respect to Senior Debt, the Holders of the
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the
remaining assets of the Company the amounts at the time due and owing on
account of unpaid principal of and any premium and interest (including any
Additional Interest) on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any units of limited partnership interests or any
obligations of the Company ranking junior to the Securities and such other
obligations. If, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property
(other than securities of the Company or any other entity provided for by a
plan of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in these subordination provisions with respect to
the indebtedness evidenced by the Securities, to the payment of all Senior Debt
at the time outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment) shall be received by the
Trustee or any Holder in contravention of any of the terms hereof and before
all Senior Debt shall have been paid in full, such payment or distribution or
security shall be received in trust for the benefit of, and shall be paid over
or delivered and transferred to, the holders of the Senior Debt at the time
outstanding in accordance with the 


 


60





















 


priorities then existing among such holders for application
to the payment of all Senior Debt remaining unpaid, to the extent necessary to
pay all such Senior Debt (including any interest thereon accruing after the
commencement of any Proceeding) in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution or
security, each holder of Senior Debt is hereby irrevocably authorized to
endorse or assign the same.


 


(d)           The Trustee and the Holders, at the expense
of the Company, shall take such reasonable action (including the delivery of
this Indenture to an agent for any holders of Senior Debt or consent to the
filing of a financing statement with respect hereto) as may, in the opinion of
counsel designated by the holders of a majority in principal amount of the
Senior Debt at the time outstanding, be necessary or appropriate to assure the
effectiveness of the subordination effected by these provisions.


 


(e)           The provisions of this Section 12.2
shall not impair any rights, interests, remedies or powers of any secured
creditor of the Company in respect of any security interest the creation of
which is not prohibited by the provisions of this Indenture.


 


(f)            The securing of any obligations of the
Company, otherwise ranking on a parity with the Securities or ranking junior to
the Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with the Securities
or ranking junior to the Securities.


 


SECTION 12.3.  Payment
Permitted If No Default.


 


Nothing contained in this Article
XII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time, except during the pendency of the
conditions described in paragraph (a) of Section 12.2 or of any
Proceeding referred to in Section 12.2, from making payments at any time
of principal of and any premium or interest (including any Additional Interest)
on the Securities or (b) the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of and any
premium or interest (including any Additional Interest) on the Securities or
the retention of such payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge (in accordance with Section
12.8) that such payment would have been prohibited by the provisions of
this Article XII, except as provided in Section 12.8.


 


SECTION 12.4.  Subrogation to Rights of Holders of Senior Debt.


 


Subject to the payment in
full of all amounts due or to become due on all Senior Debt, or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the Securities shall
be subrogated to the extent of the payments or distributions made to the
holders of such Senior Debt pursuant to the provisions of this Article XII
(equally and ratably with the holders of all indebtedness of the Company that
by its express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Securities are subordinated to the Senior
Debt and is entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be
paid in full. For purposes of 


 


61





















 


such subrogation, no payments or
distributions to the holders of the Senior Debt of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments
made pursuant to the provisions of this Article XII to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt, and the Holders of
the Securities, be deemed to be a payment or distribution by the Company to or
on account of the Senior Debt.


 


SECTION 12.5.  Provisions Solely to Define Relative Rights.


 


The provisions of this Article
XII are and are intended solely for the purpose of defining the relative
rights of the Holders of the Securities on the one hand and the holders of
Senior Debt on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of and any premium and interest
(including any Additional Interest) on the Securities as and when the same
shall become due and payable in accordance with their terms, (b) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt or (c) prevent the Trustee or the Holder of any Security (or to the
extent expressly provided herein, the holder of any Preferred Security) from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, including filing and voting claims in any Proceeding,
subject to the rights, if any, under this Article XII of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.


 


SECTION 12.6.  Trustee to Effectuate Subordination.


 


Each Holder of a Security by
his or her acceptance thereof authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination provided in this Article XII and appoints
the Trustee his or her attorney-in-fact for any and all such purposes.


 


SECTION 12.7.  No Waiver of
Subordination Provisions.


 


(a)           No right of any present or future holder of
any Senior Debt to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof that any such
holder may have or be otherwise charged with.


 


(b)           Without in any way limiting the generality of
paragraph (a) of this Section 12.7, the holders of Senior Debt may, at
any time and from to time, without the consent of or notice to the Trustee or
the Holders of the Securities, without incurring responsibility to such Holders
of the Securities and without impairing or releasing the subordination provided
in this Article XII or the obligations hereunder of such Holders of the
Securities to the holders of Senior Debt, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the 


 


62





















 


time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding, (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt, (iii) release any Person
liable in any manner for the payment of Senior Debt and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.


 


SECTION
12.8.  Notice to
Trustee.


 


(a)           The Company shall give prompt written notice
to a Responsible Officer of the Trustee of any fact known to the Company that
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article XII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until a
Responsible Officer of the Trustee shall have received written notice thereof
from the Company or a holder of Senior Debt or from any trustee, agent or
representative therefor; provided, that if the Trustee shall not have
received the notice provided for in this Section 12.8 at least two
Business Days prior to the date upon which by the terms hereof any monies may
become payable for any purpose (including, the payment of the principal of and
any premium on or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary that may be received by it within two Business
Days prior to such date.


 


(b)           The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or herself
to be a holder of Senior Debt (or a trustee, agent, representative or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee, agent, representative or attorney-in-fact
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this Article
XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article XII, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.


 


SECTION 12.9.  Reliance on Judicial Order or Certificate of Liquidating Agent.


 


Upon any payment or
distribution of assets of the Company referred to in this Article XII,
the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness 


 


63





















 


of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XII.


 


SECTION 12.10.  Trustee Not
Fiduciary for Holders of Senior Debt.


 


The Trustee, in its capacity
as trustee under this Indenture, shall not be deemed to owe any fiduciary duty
to the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article XII
or otherwise.


 


SECTION 12.11.  Rights of
Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights.


 


The Trustee in its
individual capacity shall be entitled to all the rights set forth in this Article
XII with respect to any Senior Debt that may at any time be held by it, to
the same extent as any other holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.


 


SECTION 12.12.  Article Applicable to Paying Agents.


 


If at any time any Paying
Agent other than the Trustee shall have been appointed by the Company and be
then acting hereunder, the term “Trustee”
as used in this Article XII shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XII in addition to or in place
of the Trustee; provided, that Sections  12.8 and 12.11
shall not apply to the Company or any Affiliate of the Company if the Company
or such Affiliate acts as Paying Agent.


 


* * * *


 


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


 


*
* * *


 


64





















 


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


 


	
   

  	
  SL GREEN OPERATING
  PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
  By: SL GREEN REALTY CORP.,
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK,
  NATIONAL ASSOCIATION, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


65





















 


Schedule A


 


DETERMINATION OF LIBOR


 


With respect to the
Securities, the London interbank offered rate (“LIBOR”) shall be determined by the Calculation Agent in
accordance with the following provisions (in each case rounded to the nearest
..000001%):


 


(1)           On the second LIBOR Business Day (as defined
below) prior to an Interest Payment Date (each such day, a “LIBOR Determination Date”), LIBOR for any
given security shall for the following interest payment period equal the rate,
as obtained by the Calculation Agent from Bloomberg Financial Markets
Commodities News, for three-month Eurodollar deposits that appears on Dow Jones
Telerate Page 3750 (as defined in the International Swaps and Derivatives
Association, Inc. 2000 Interest Rate and Currency Exchange Definitions), or
such other page as may replace such Page 3750, as of 11:00 a.m. (London time)
on such LIBOR Determination Date.


 


(2)           If, on any LIBOR Determination Date, such
rate does not appear on Dow Jones Telerate Page 3750 or such other page as may
replace such Page 3750, the Calculation Agent shall determine the arithmetic
mean of the offered quotations of the Reference Banks (as defined below) to
leading banks in the London interbank market for three-month Eurodollar
deposits in an amount determined by the Calculation Agent by reference to
requests for quotations as of approximately 11:00 a.m. (London time) on the
LIBOR Determination Date made by the Calculation Agent to the Reference
Banks.  If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. 
If, on any LIBOR Determination Date, only one or none of the Reference Banks
provide such quotations, LIBOR shall be deemed to be the arithmetic mean of the
offered quotations that leading banks in the City of New York selected by the
Calculation Agent are quoting on the relevant LIBOR Determination Date for
three-month Eurodollar deposits in an amount determined by the Calculation
Agent by reference to the principal London offices of leading banks in the
London interbank market; provided
that, if the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR shall be
LIBOR as determined on the previous LIBOR Determination Date.


 


(3)           As used herein: “Reference Banks” means four major banks in the London
interbank market selected by the Calculation Agent; and “LIBOR Business Day” means a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign currency deposits) in London.


 


A-1





















 


Exhibit A


 


Form of Officer’s Financial Certificate


 


The undersigned, the [Chief
Financial Officer/Treasurer/Assistant Treasurer/ Secretary/ Assistant
Secretary, Chairman/Vice Chairman/Chief Executive Officer/President/Vice
President] hereby certifies, pursuant to Section 7.3(b) of the Junior
Subordinated Indenture, dated as of June 30, 2005 (the “Indenture”), among SL
GREEN OPERATING PARTNERSHIP, L.P. (the “Company”) and JPMorgan Chase Bank,
National Association, as trustee,  that,
as of [date], [20    ], the Company, if applicable,  and its Subsidiary had the following ratios
and balances:


 


As of [Quarterly/Annual
Financial Date], 20    


 


 


	
  Senior secured indebtedness for borrowed
  money (“Debt”)

  	
   

  	
  $

  	
            

  	
   

  
	
  Senior unsecured Debt

  	
   

  	
  $

  	
            

  	
   

  
	
  Subordinated Debt

  	
   

  	
  $

  	
            

  	
   

  
	
  Total Debt

  	
   

  	
  $

  	
            

  	
   

  
	
  Ratio of (x) senior secured and unsecured
  Debt to (y) total Debt

  	
   

  	
            

  	
  %

  



 


[FOR FISCAL YEAR END:  Attached hereto are the audited consolidated
financial statements (including the balance sheet, income statement and
statement of cash flows, and notes thereto, together with the report of the
independent accountants thereon) of the Company and its consolidated
subsidiaries for the three years ended [date], 20    .]


 


[FOR FISCAL QUARTER
END:  Attached hereto are the unaudited
consolidated and consolidating financial statements (including the balance
sheet and income statement) of the Company and its consolidated subsidiaries
for the fiscal quarter ended [date], 20    .]


 


The financial statements
fairly present in all material respects, in accordance with U.S. generally
accepted accounting principles (“GAAP”), the financial position of the Company
and its consolidated subsidiaries, and the results of operations and changes in
financial condition as of the date, and for the [quarter] [annual] period ended
[date], 20    , and such financial statements have been
prepared in accordance with GAAP consistently applied throughout the period
involved (expect as otherwise noted therein).


 





















 


IN WITNESS WHEREOF, the
undersigned has executed this Officer’s Financial Certificate as of this           
day of                           ,
20    .


 


	
   

  	
  SL GREEN OPERATING
  PARTNERSHIP, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  SL GREEN REALTY CORP., its
  general

  
	
   

  	
   

  	
  Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  SL GREEN OPERATING PARTNERSHIP,
  L.P.

  
	
   

  	
   

  
	
   

  	
  420 Lexington Avenue

  
	
   

  	
  New York, NY 10170

  
	
   

  	
  (212) 594-2700