exv10w4






Exhibit 10.4




INDENTURE OF TRUST




between




LTF REAL ESTATE VRDN I, LLC,




as Borrower,




and




MANUFACTURERS AND TRADERS TRUST COMPANY,




as Trustee




LTF REAL ESTATE VRDN I, LLC

$34,235,000 VARIABLE RATE DEMAND NOTES,

SERIES 2008




Dated as of June 1, 2008














 





TABLE OF CONTENTS





	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE I

DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS

	 
	Section 1.01.
	 	Definitions

	 	 	1	 
	 	 	 
	 	 	 	 
	Section 1.02.
	 	Content of Certificates and Opinions

	 	 	9	 
	 	 	 
	 	 	 	 
	Section 1.03.
	 	Interpretation

	 	 	10	 






ARTICLE II

THE NOTES




	 	 	 	 	 	 	 
	Section 2.01.
	 	Authorization of Notes

	 	 	10	 
	 	 	 
	 	 	 	 
	Section 2.02.
	 	Terms of the Notes

	 	 	10	 
	 	 	 
	 	 	 	 
	Section 2.03.
	 	Interest on Notes

	 	 	11	 
	 	 	 
	 	 	 	 
	Section 2.04.
	 	Conversion to Fixed Interest Rate

	 	 	12	 
	 	 	 
	 	 	 	 
	Section 2.05.
	 	Execution of Notes

	 	 	13	 
	 	 	 
	 	 	 	 
	Section 2.06.
	 	Transfer of Notes

	 	 	14	 
	 	 	 
	 	 	 	 
	Section 2.07.
	 	Exchange of Notes

	 	 	16	 
	 	 	 
	 	 	 	 
	Section 2.08.
	 	Note Registrar

	 	 	16	 
	 	 	 
	 	 	 	 
	Section 2.09.
	 	Temporary Notes

	 	 	16	 
	 	 	 
	 	 	 	 
	Section 2.10.
	 	Notes Mutilated, Lost, Destroyed or Stolen

	 	 	16	 
	 	 	 
	 	 	 	 
	Section 2.11.
	 	Absolute and Unconditional Obligations

	 	 	17	 
	 	 	 
	 	 	 	 
	Section 2.12.
	 	Book-Entry Only System

	 	 	17	 
	 	 	 
	 	 	 	 
	Section 2.13.
	 	CUSIP Numbers

	 	 	19	 






ARTICLE III

ISSUANCE OF NOTES; APPLICATION OF PROCEEDS




	 	 	 	 	 	 	 
	Section 3.01.
	 	Issuance of the Notes

	 	 	20	 
	 	 	 
	 	 	 	 
	Section 3.02.
	 	Establishment and Application of Note Fund

	 	 	20	 






ARTICLE IV

REDEMPTION AND PURCHASE OF NOTES




	 	 	 	 	 	 	 
	Section 4.01.
	 	Terms of Redemption

	 	 	21	 
	 	 	 
	 	 	 	 
	Section 4.02.
	 	Selection of Notes for Redemption

	 	 	22	 
	 	 	 
	 	 	 	 
	Section 4.03.
	 	Notice of Redemption

	 	 	22	 
	 	 	 
	 	 	 	 
	Section 4.04.
	 	Partial Redemption of Notes

	 	 	23	 
	 	 	 
	 	 	 	 
	Section 4.05.
	 	Effect of Redemption

	 	 	23	 
	 	 	 
	 	 	 	 
	Section 4.06.
	 	Purchase of Notes by Tender Agent

	 	 	24	 
	 	 	 
	 	 	 	 
	Section 4.07.
	 	Mandatory Tender of Notes

	 	 	24	 
















 







	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	ARTICLE V

REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST
 
	 
	Section 5.01.
	 	Pledge and Assignment; Revenue Fund

	 	 	25	 
	 	 	 
	 	 	 	 
	Section 5.02.
	 	Note Payments and Allocation

	 	 	26	 
	 	 	 
	 	 	 	 
	Section 5.03.
	 	Priority of Moneys in Revenue Fund; Letter of Credit Account

	 	 	27	 
	 	 	 
	 	 	 	 
	Section 5.04.
	 	Letter of Credit

	 	 	29	 
	 	 	 
	 	 	 	 
	Section 5.05.
	 	Investment of Moneys

	 	 	30	 
	 	 	 
	 	 	 	 
	Section 5.06.
	 	Additional Duties of Trustee

	 	 	31	 
	 	 	 
	 	 	 	 
	Section 5.07.
	 	Alternate Credit Facility

	 	 	32	 






ARTICLE VI

PARTICULAR REPRESENTATIONS, WARRANTIES AND COVENANTS




	 	 	 	 	 	 	 
	Section 6.01.
	 	Punctual Payment

	 	 	32	 
	 	 	 
	 	 	 	 
	Section 6.02.
	 	Extension of Payment of Notes

	 	 	32	 
	 	 	 
	 	 	 	 
	Section 6.03.
	 	Encumbrances

	 	 	33	 
	 	 	 
	 	 	 	 
	Section 6.04.
	 	Accounting Records and Reports

	 	 	33	 
	 	 	 
	 	 	 	 
	Section 6.05.
	 	Other Covenants

	 	 	33	 
	 	 	 
	 	 	 	 
	Section 6.06.
	 	Further Assurances

	 	 	33	 






ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES OF REGISTERED OWNERS




	 	 	 	 	 	 	 
	Section 7.01.
	 	Events of Default; Acceleration; Waiver of Default

	 	 	33	 
	 	 	 
	 	 	 	 
	Section 7.02.
	 	Institution of Legal Proceedings by Trustee

	 	 	35	 
	 	 	 
	 	 	 	 
	Section 7.03.
	 	Application of Account Funds and Other Funds After Default

	 	 	35	 
	 	 	 
	 	 	 	 
	Section 7.04.
	 	Trustee to Represent Registered Owners

	 	 	36	 
	 	 	 
	 	 	 	 
	Section 7.05.
	 	Registered Owners’ Direction of Proceedings

	 	 	37	 
	 	 	 
	 	 	 	 
	Section 7.06.
	 	Limitation on Registered Owners’ Right to Sue

	 	 	37	 
	 	 	 
	 	 	 	 
	Section 7.07.
	 	Absolute Obligation of Borrower

	 	 	37	 
	 	 	 
	 	 	 	 
	Section 7.08.
	 	Termination of Proceedings

	 	 	38	 
	 	 	 
	 	 	 	 
	Section 7.09.
	 	Remedies Not Exclusive

	 	 	38	 
	 	 	 
	 	 	 	 
	Section 7.10.
	 	No Waiver of Default

	 	 	38	 
	 	 	 
	 	 	 	 
	Section 7.11.
	 	Consent to Defaults

	 	 	38	 






ARTICLE VIII

TRUSTEE, THE REMARKETING AGENT AND TENDER AGENT




	 	 	 	 	 	 	 
	Section 8.01.
	 	Duties, Immunities and Liabilities of Trustee

	 	 	39	 
	 	 	 
	 	 	 	 
	Section 8.02.
	 	Merger or Consolidation

	 	 	40	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	Section 8.03.
	 	Liability of Trustee

	 	 	41	 
	 	 	 
	 	 	 	 
	Section 8.04.
	 	Right of Trustee to Rely on Documents

	 	 	42	 
	 	 	 
	 	 	 	 
	Section 8.05.
	 	Preservation and Inspection of Documents

	 	 	43	 
	 	 	 
	 	 	 	 
	Section 8.06.
	 	Compensation and Indemnification

	 	 	43	 
	 	 	 
	 	 	 	 
	Section 8.07.
	 	Notice to Rating Agency

	 	 	44	 
	 	 	 
	 	 	 	 
	Section 8.08.
	 	Qualifications of Remarketing Agent

	 	 	44	 
	 	 	 
	 	 	 	 
	Section 8.09.
	 	Remarketing of Notes

	 	 	44	 
	 	 	 
	 	 	 	 
	Section 8.10.
	 	Creation of Purchase Fund; Purchase of Notes Delivered to Tender Agent

	 	 	46	 
	 	 	 
	 	 	 	 
	Section 8.11.
	 	Delivery of Notes

	 	 	47	 
	 	 	 
	 	 	 	 
	Section 8.12.
	 	Delivery of Proceeds of Remarketing

	 	 	48	 
	 	 	 
	 	 	 	 
	Section 8.13.
	 	No Purchases or Sales After Default

	 	 	48	 
	 	 	 
	 	 	 	 
	Section 8.14.
	 	Qualifications of Tender Agent

	 	 	48	 
	 	 	 
	 	 	 	 
	Section 8.15.
	 	Paying Agent

	 	 	49	 
	 	 	 
	 	 	 	 
	Section 8.16.
	 	Several Capacities

	 	 	49	 






ARTICLE IX

MODIFICATION OR AMENDMENT OF THIS INDENTURE




	 	 	 	 	 	 	 
	Section 9.01.
	 	Amendments Permitted

	 	 	49	 
	 	 	 
	 	 	 	 
	Section 9.02.
	 	Effect of Supplemental Indenture

	 	 	50	 
	 	 	 
	 	 	 	 
	Section 9.03.
	 	Endorsement of Notes; Preparation of New Notes

	 	 	51	 
	 	 	 
	 	 	 	 
	Section 9.04.
	 	Amendment of Particular Notes

	 	 	51	 






ARTICLE X

DEFEASANCE




	 	 	 	 	 	 	 
	Section 10.01.
	 	Discharge of Indenture

	 	 	51	 
	 	 	 
	 	 	 	 
	Section 10.02.
	 	Discharge of Liability on Notes

	 	 	52	 
	 	 	 
	 	 	 	 
	Section 10.03.
	 	Deposit of Money or Securities with Trustee

	 	 	52	 
	 	 	 
	 	 	 	 
	Section 10.04.
	 	Payments After Discharge of Indenture

	 	 	53	 






ARTICLE XI

MISCELLANEOUS




	 	 	 	 	 	 	 
	Section 11.01.
	 	Successor Is Deemed Included in All References to Predecessor

	 	 	54	 
	 	 	 
	 	 	 	 
	Section 11.02.
	 	Limitation of Rights to Parties and Registered Owners

	 	 	54	 
	 	 	 
	 	 	 	 
	Section 11.03.
	 	Waiver of Notice

	 	 	54	 
	 	 	 
	 	 	 	 
	Section 11.04.
	 	Severability of Invalid Provisions

	 	 	54	 
	 	 	 
	 	 	 	 
	Section 11.05.
	 	Governing Law

	 	 	54	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	 	Page	 
	 
	Section 11.06.
	 	Notices

	 	 	54	 
	 	 	 
	 	 	 	 
	Section 11.07.
	 	Evidence of Rights of Registered Owners

	 	 	56	 
	 	 	 
	 	 	 	 
	Section 11.08.
	 	Disqualified Notes

	 	 	57	 
	 	 	 
	 	 	 	 
	Section 11.09.
	 	Money Held for Particular Notes

	 	 	57	 
	 	 	 
	 	 	 	 
	Section 11.10.
	 	Funds and Accounts

	 	 	58	 
	 	 	 
	 	 	 	 
	Section 11.11.
	 	Execution in Several Counterparts

	 	 	58	 
	 	 	 
	 	 	 	 
	Section 11.12.
	 	Actions Due on Saturdays, Sundays and Holidays

	 	 	58	 
	 	 	 
	 	 	 	 
	Section 11.13.
	 	References to Credit Issuer

	 	 	58	 
	 	 	 
	 	 	 	 
	Section 11.14.
	 	Usury

	 	 	58	 
	 	 	 
	 	 	 	 
	Section 11.15.
	 	Waiver of Jury Trial

	 	 	59	 
	 	 	 
	 	 	 	 
	EXHIBIT A
	 	FORM OF NOTE
	 	 	 	 
	EXHIBIT B
	 	FORM OF PAYMENT REQUEST FORM
	 	 	 	 







iv









 








INDENTURE OF TRUST




     THIS INDENTURE OF TRUST dated as of June 1, 2008 (this “Indenture”) between LTF REAL ESTATE
VRDN I, LLC, a Delaware limited liability company (“Borrower”), and MANUFACTURERS AND TRADERS TRUST
COMPANY, a New York state banking corporation with trust powers (“Trustee”).



W I T N E S S E T H:




     WHEREAS, Borrower proposes to issue the Notes (as hereinafter defined); and



     WHEREAS, in order to provide for the authentication and delivery of the Notes (as hereinafter
defined), to establish and declare the terms and conditions upon which the Notes are to be issued
and secured and to secure the payment of the principal and purchase price thereof and interest
thereon, Borrower has authorized the execution and delivery of this Indenture; and



     WHEREAS, in order to further secure the payments of principal and purchase price of and
interest on the Notes, Borrower has obtained and caused to be delivered to Trustee an irrevocable
direct-pay letter of credit from General Electric Capital Corporation; and



     WHEREAS, all acts and proceedings required by law or necessary to make the Notes, when
executed by Borrower and authenticated and delivered by Note Registrar (as hereinafter defined),
the valid, binding and legal special obligations of Borrower, and to constitute this Indenture a
valid and binding agreement for the uses and purposes herein set forth in accordance with its
terms, have been done and taken, and the execution and delivery of this Indenture has been in all
respects duly authorized;



     NOW, THEREFORE, THIS INDENTURE WITNESSETH, that (a) in order to secure the payment of the
principal and purchase price of and premium, if any, and interest on all Notes at any time issued
and Outstanding (as hereinafter defined) under this Indenture, according to their tenor, and to
secure the performance and observance of all the covenants and conditions therein and herein set
forth, and to declare the terms and conditions upon and subject to which the Notes are to be issued
and received, and in consideration of the premises and of the mutual covenants herein contained and
of the purchase and acceptance of the Notes by the Registered Owners (as hereinafter defined)
thereof, (b) in order to secure on a subordinate basis Borrower’s obligations to Credit Issuer (as
hereinafter defined) under the Reimbursement Agreement (as hereinafter defined) and (c) for other
valuable consideration, the receipt whereof is hereby acknowledged, Borrower does hereby covenant
and agree with Trustee, for the benefit of the respective Registered Owners from time to time of
the Notes, as follows:



ARTICLE I




DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS




     Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in this
Article shall, for all purposes of this Indenture and for the purpose of any certificate, opinion













 




or other document herein mentioned, have the meanings herein specified. Such definitions are
equally applicable to both the singular and plural forms of any of the terms defined.




     “Accountant” means any firm of independent certified public accountants selected by Borrower
and reasonably acceptable to Trustee and Credit Issuer.



     “Account Funds” has the meaning ascribed to such term in Section 5.01 hereof.



     “Act of Bankruptcy” means the entry of an order or decree by a court having jurisdiction in
the matter for relief against Borrower or any Related Party in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of
Borrower or any Related Party or of any substantial part of the property of Borrower or any Related
Party, or ordering the winding up or liquidation of the affairs of Borrower or any Related Party;
or the institution or commencement by or against Borrower or any Related Party of a voluntary or
involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, provided, however, that in the event of an involuntary case such involuntary case or
proceeding shall remain undismissed for a period of 60 days, or the consent by it to the entry of
an order for relief against it in any involuntary case under any such law, or to the appointment of
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of
Borrower or any Related Party or of any substantial part of the property of Borrower or any Related
Party, or the making by Borrower or any Related Party of an assignment for the benefit of
creditors, or the failure of it generally to pay its debts as they become due, or the admission by
it in writing of such failure, or the taking of any action by Borrower or any Related Party in
furtherance of any such action, or if a receiver of the business or of the property or assets of
Borrower or any Related Party shall be appointed by any court, except a receiver appointed at the
instance or request of Borrower or any Related Party.



     “Additional Payments” means all payments (other than Note Payments) required to be made by
Borrower hereunder.



     “Alternate Credit Facility” means bond insurance or other similar credit enhancement facility
meeting the requirements of Section 5.07 hereof.



     “Alternate Letter of Credit” means an alternate irrevocable letter of credit or similar credit
facility issued by a commercial bank, savings institution or other financial institution or entity,
the terms of which, other than the expiration date, shall in all material respects be the same as
those of the initial Letter of Credit, delivered to Trustee pursuant to Section 5.04 hereof.



     “Authorized Denomination” means $100,000 or any multiple of $5,000 in excess of $100,000, or,
if the Notes are converted into Notes bearing a Fixed Interest Rate, $5,000 and integral multiples
thereof.



     “Authorized Representative” means with respect to Borrower, the person or persons at the time
designated to act on behalf of Borrower by a written certificate signed by Borrower, furnished to
Trustee and Credit Issuer containing the specimen signature of each such person.



2









 





     “Available Moneys” means moneys which are (a) continuously on deposit with Trustee in trust
for a period of 124 days (or for a period of 367 days in the case of a Related Party) for the
benefit of the Registered Owners in a separate and segregated account in which only Available
Moneys are held and during and prior to which period no Act of Bankruptcy of Borrower or a Related
Party occurs or (b) proceeds of (i) the Notes received contemporaneously with the issuance and sale
of the Notes, (ii) a drawing under the Letter of Credit, (iii) any other moneys for which Trustee
has received a written opinion of nationally recognized counsel experienced in bankruptcy matters
and acceptable to Trustee to the effect that payment of such moneys to the Registered Owners would
not constitute an avoidable preference under Section 547 of the United States Bankruptcy Code in
the event Borrower or any Related Party were to become a debtor under the United States Bankruptcy
Code, which opinion is acceptable to each rating agency then rating the Notes, or (iv) moneys
derived from the investment of funds qualifying as Available Moneys under the foregoing clauses.



     “Beneficial Owner” means generally any person which has or shares the power, directly or
indirectly, to make investment decisions concerning ownership of any Notes and with respect to
Notes held by DTC, those individuals, partnerships, corporations or other entities for whom the
Direct Participants have caused DTC to hold the Notes.



     “Borrower” means LTF Real Estate VRDN I, LLC, a Delaware limited liability company.



     “Borrower Notes” means Notes tendered pursuant to Section 4.06 hereof or subject to mandatory
tender pursuant to Section 4.07 hereof and purchased from funds described in Section 8.10(b)(ii)
hereof.



     “Business Day” means a day which is not a Saturday, Sunday or legal holiday on which banking
institutions in the State of New York or in any state in which the principal office of Credit
Issuer, or the office of Tender Agent or Trustee designated for payment of the Notes, or the office
of Credit Issuer designated for presentations under the Letter of Credit is located are closed or a
day on which the New York Stock Exchange is closed.



     “Certificate,” “Statement,” “Request,” “Requisition” and “Order” of Borrower means,
respectively, a written certificate, statement, request, requisition or order signed in the name of
Borrower by an Authorized Representative of Borrower. Any such instrument and supporting opinions
or representations, if any, may, but need not, be combined in a single instrument with any other
instrument, opinion or representation, and the two or more so combined shall be read and construed
as a single instrument. If and to the extent required by Section 1.02 hereof, each such instrument
shall include the statements provided for in Section 1.02 hereof.



     “Credit Issuer” means initially GECC, as the issuer of the Letter of Credit, and upon the
acceptance of any Alternate Credit Facility or Alternate Letter of Credit by Trustee as provided
herein, the issuer of such Alternate Credit Facility or Alternate Letter of Credit, as the case may
be.



     “Date of Delivery” means June 13, 2008.



3









 





     “Direct Participant” means any of those securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations for which DTC, from time to time,
holds the Notes as securities depository.



     “DTC” means The Depository Trust Company, New York, New York, or any successor securities
depository.



     “Eligible Account” means an account that is either (a) maintained with a federal or
state-chartered depository institution or trust company that has a S&P short-term debt rating of at
least ‘A-2’ (or, if no short-term debt rating, a long-term debt rating of ‘BBB+’); or (b)
maintained with the corporate trust department of a federal depository institution or
state-chartered depository institution subject to regulations regarding fiduciary funds on deposit,
which, in either case, has corporate trust powers and is acting in its fiduciary capacity. In the
event that an account required to be an “Eligible Account” no longer complies with the requirement,
Trustee should promptly (and, in any case, within not more than 30 calendar days) move such account
to another financial institution such that the Eligible Account requirement will again be
satisfied.



     “Event of Default” means any of the events specified in Section 7.01 hereof.



     “Expiration Date” means the stated date upon which the Letter of Credit or Alternate Letter of
Credit shall expire in accordance with its terms.



     “Fixed Interest Rate” means the interest rate borne by the Notes from and after the Fixed
Interest Rate Date and determined in accordance with Sections 2.03(b) and 2.04 hereof.



     “Fixed Interest Rate Date” means the date on which the Notes begin to bear interest at the
Fixed Interest Rate, which shall be an Interest Payment Date.



     “Fixed Rate Period” means the period from and including the Fixed Interest Rate Date
designated pursuant to Section 2.04 hereof to and including the date next preceding the date of
maturity on the Notes.



     “GECC” means General Electric Capital Corporation, a Delaware corporation, as the issuer of
the Letter of Credit.



     “Government Obligations” means and includes any of the following securities, if and to the
extent the same are non-callable and not subject to redemption at the option of Borrower, at the
time legal for investment: direct obligations of, or obligations the full and timely payment of
principal of and interest on which are unconditionally guaranteed by, the United States of America,
including obligations issued or held in book-entry form on the books of the Department of the
Treasury of the United States of America and including a receipt, certificate or any other evidence
of a direct ownership interest of future payments in an obligation of, or unconditionally
guaranteed by, the United States of America, or in specified portions thereof held by a custodian
in safekeeping for the holders of such receipt, certificate or any other evidence of ownership
(which may consist of specified portions of interest thereon) which is rated or assessed in the
highest rating category of Moody’s and S&P to the extent each such rating agency is then rating the
Notes, but excluding any share or interest in any unitary investment trust or mutual fund



4









 







unless such unitary investment trust or mutual fund is rated or assessed in the highest rating
category of Moody’s and S&P to the extent each such rating agency is then rating the Notes.



     “Indenture” means this Indenture, as originally executed or as it may from time to time be
supplemented, modified or amended by any Supplemental Indenture.



     “Information Services” means a national information service that disseminates notices of
redemptions of notes such as the Notes.



     “Interest Account” means the account of that name in the Revenue Fund established pursuant to
Section 5.02 hereof.



     “Interest Payment Date” means (i) with respect to interest accruing at the Weekly Interest
Rate, the first Business Day of each calendar month, commencing on July 1, 2008 and (ii) with
respect to interest accruing at the Fixed Interest Rate, each Semiannual Date, commencing with the
first such date that is at least two months after the Fixed Interest Rate Date.



     “Investment Letter” means the form of Investment Letter required by the Remarketing Agreement
to be executed by the purchaser of any Note.



     “Letter of Credit” means (a) that certain irrevocable direct pay letter of credit No. LF-001
issued by GECC pursuant to the terms and conditions of the Reimbursement Agreement, as the same may
be amended or modified in accordance with its terms, naming Trustee as beneficiary and delivered on
the date of issuance and delivery of the Notes; (b) in the event of delivery of an Alternate Letter
of Credit, such Alternate Letter of Credit; or (c) in the event of delivery of an Alternate Credit
Facility, such Alternate Credit Facility.



     “Letter of Credit Account” means the account of that name established in the Revenue Fund
pursuant to Section 5.03 hereof.



     “Letter of Credit Substitution Date” means the date an Alternate Credit Facility or Alternate
Letter of Credit is delivered to Trustee pursuant to the terms of this Indenture.



     “Liquidity Account” means the account of that name established in the Purchase Fund pursuant
to Section 8.10 hereof.



     “Mandatory Tender Date” means the (a) the Fixed Interest Rate Date in case of Notes which are
to be purchased upon conversion to the Fixed Interest Rate; and (b) any Letter of Credit
Substitution Date, pursuant to which the Notes are required to be tendered for purchase in
accordance with Section 4.07 hereof.



     “Moody’s” means Moody’s Investors Service, a corporation organized and existing under the laws
of the State of Delaware, its successors and their assigns, or, if such corporation shall be
dissolved, liquidated or replaced by Borrower as the rating agency for the Notes, or shall no
longer perform the functions of a securities rating agency, any other nationally recognized
securities rating agency designated by Borrower which is requested to provide a rating on the
Notes.



5









 





     “Net Proceeds” means the proceeds from insurance or from actual or threatened condemnation or
eminent domain action with respect to the Property, less any costs reasonably expended by Borrower
to collect such proceeds.



     “Non-Tendered Notes” has the meaning ascribed to such term in Section 4.07 hereof.



     “Note” or “Notes” means Borrower’s $34,235,000 Variable Rate Demand Notes, Series 2008 issued
under this Indenture in the form attached hereto as Exhibit A.



     “Note Fund” means the fund of that name established pursuant to Section 3.02 hereof.



     “Note Payment Date” means any date on which any principal of, premium, if any, or interest on,
any Outstanding Note shall be due and payable whether at maturity or on a scheduled Interest
Payment Date or upon redemption, in each case in accordance with the terms of the Notes and this
Indenture.



     “Note Payments” means the payments required to be made by Borrower pursuant to Section 5.02
hereof.



     “Note Registrar” means the Note registrar specified in Section 2.08 hereof.



     “Noteholder” means, as of any time, the Registered Owner of any Note as shown in the register
kept by Note Registrar.



     “Organization Documents” mean Borrower’s articles or certificate of incorporation and bylaws
if Borrower is a corporation, articles of organization and operating agreement if Borrower is a
limited liability company, certificate of limited partnership and partnership agreement if Borrower
is a partnership and trust agreement or declaration of trust if Borrower is a trust, as such
Organization Documents may be amended from time to time.



     “Outstanding” when used as of any particular time with reference to Notes, means (subject to
the provisions of Section 11.08 hereof) all Notes theretofore, or thereupon being, authenticated
and delivered by Note Registrar under this Indenture except (a) Notes theretofore cancelled by Note
Registrar or surrendered to Note Registrar for cancellation; (b) Notes with respect to which
liability of Borrower shall have been discharged in accordance with Section 10.02 hereof, including
Notes (or portions of Notes) referred to in Section 11.08 hereof; (c) Notes paid or for the
transfer or exchange of or in lieu of or in substitution for which other Notes shall have been
authenticated and delivered by Note Registrar pursuant to Section 2.10 hereof and any other
provision of this Indenture; and (d) Notes which have been deemed purchased pursuant to
Section 4.07 hereof.



     “Participating Underwriter” means any broker, dealer or municipal securities dealer acting as
an underwriter in a primary offering of municipal securities subject to Securities and Exchange
Commission Rule 15c2-12 under the Securities Exchange Act of 1934, as amended.



     “Paying Agent” means Trustee and any other paying agent for the Notes appointed pursuant to
the provisions of this Indenture.



6









 





     “Payment Request Form” means the form of Payment Request Form attached hereto as Exhibit B
executed by Borrower and Credit Issuer pursuant to the terms hereof.



     “Person” means an individual, corporation, firm, association, partnership, trust, or other
legal entity or group of entities, including a governmental entity or any agency or political
subdivision thereof.



     “Principal Account” means the account of that name in the Revenue Fund established pursuant to
Section 5.02 hereof.



     “Property” has the meaning ascribed to such term in the Reimbursement Agreement.



     “Purchase Date” means (a) the date specified in each notice given by a Registered Owner
pursuant to Section 4.06 hereof on which the Notes being tendered by such Registered Owner shall be
purchased by Tender Agent and (b) the Mandatory Tender Date.



     “Purchase Fund” means the fund of that name established pursuant to Section 8.10 hereof.



     “Qualified Investments” means (a) securities that are general obligations of or are guaranteed
as to the payment of principal and interest by the United States of America; (b) obligations,
debentures, notes or other evidence of indebtedness issued or guaranteed by any of the following:
Federal Home Loan Bank System, Government National Mortgage Association, Farmers Home
Administration, Federal Home Loan Mortgage Corporation or Federal Housing Administration;
(c) commercial paper issued by corporations organized under the laws of a state of the
United States which is rated in the highest rating category by S&P’s or Moody’s; (d) money market
funds registered under the Investment Company Act of 1940 whose shares are registered under the
Securities Act of 1933 and which have a rating of “AAAm-G” or “AAAm” of S&P, including money market
funds which Trustee or any of its affiliates operates or manages; or (e) certificates of deposit
issued by or other forms of deposit in any national or state bank, including Trustee, to the extent
that such deposits are fully insured by the Federal Deposit Insurance Corporation or any successor
agency which is backed by the full faith and credit of the United States. Derivative products are
not “Qualified Investments.”



     “Rate Mode” means the Weekly Mode or Fixed Interest Rate.



     “Record Date” means, prior to the Fixed Interest Rate Date, the Business Day preceding each
Interest Payment Date, and after the Fixed Interest Rate Date, the 15th day of the calendar month
preceding each Interest Payment Date, whether or not such day is a Business Day.



     “Redemption Account” means the account of that name established in the Revenue Fund pursuant
to Section 5.02 hereof.



     “Registered Owner” means the Person in whose name a Note is registered.



     “Reimbursement Agreement” means the Reimbursement Agreement dated as of the date hereof among
Borrower, Credit Issuer and GE Government Finance, Inc., as from time to time amended or
supplemented in accordance with the terms thereof, or any other similar agreement



7









 







entered into by Borrower and Credit Issuer in connection with the issuance of any Alternate
Letter of Credit or Alternate Credit Facility.



     “Related Party” means (a) any general partner or member of Borrower; (b) Tenant (as defined in
the Reimbursement Agreement) or (c) Lease Guarantor (as defined in the Reimbursement Agreement).



     “Remarketing Account” means the account of that name established in the Purchase Fund pursuant
to Section 8.10 hereof.



     “Remarketing Agent” means the remarketing agent or agents appointed in accordance with
Section 8.08 hereof. Remarketing Agent shall initially be Dougherty & Company LLC, a Delaware
limited liability company. “Principal Office” of Remarketing Agent means the office thereof
designated in writing to Trustee, Tender Agent, Credit Issuer and Borrower.



     “Remarketing Agreement” means the Remarketing Agreement dated as of the date hereof between
Borrower and Remarketing Agent, as such agreement may from time to time be amended and supplemented
in accordance with the terms thereof, to remarket the Notes delivered or deemed to be delivered for
purchase by the Registered Owners thereof, and any other similar agreement entered into with any
successor Remarketing Agent. No such amendment or supplement or similar agreement shall alter the
rights or obligations of the Registered Owners of Notes to deliver their Notes for purchase as
provided herein.



     “Revenue Fund” means the fund of that name established pursuant to Section 5.01 hereof.



     “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
a corporation organized and existing under the laws of the State of New York, its successors and
their assigns, or, if such corporation shall be dissolved, liquidated or replaced by Borrower as
the rating agency for the Notes, or shall no longer perform the functions of a securities rating
agency, any other nationally recognized securities rating agency designated by Borrower which is
requested to provide a rating on the Notes.



     “Semiannual Date” means each January 1 and July 1.



     “Semiannual Period” means a six-month period commencing on a Semiannual Date and ending on and
including the day immediately preceding the next Semiannual Date.



     “Special Record Date” means the date established by Trustee pursuant to Section 2.02(c) hereof
as a record date for the payment of defaulted interest on the Notes.



     “State” means the State of Minnesota.



     “Supplemental Indenture” means any indenture hereafter duly authorized and entered into
between Borrower and Trustee, supplementing, modifying or amending this Indenture, but only if and
to the extent that such Supplemental Indenture is specifically authorized hereunder.



8









 





     “Tender Agent” means Manufacturers and Traders Trust Company, a New York state banking
corporation having a designated corporate trust office at 213 Market Street, Harrisburg, PA 17101,
or any successor appointed pursuant to Section 8.14 hereof.



     “Trustee” means Manufacturers and Traders Trust Company, a New York state banking corporation
having a designated corporate trust office at 213 Market Street, Harrisburg, PA 17101, or its
successor as Trustee hereunder as provided in Section 8.01 hereof.



     “Weekly Interest Rate” means the interest rate on the Notes determined pursuant to
Section 2.03(a) hereof.



     “Weekly Mode” means the Rate Mode during which the Notes bear interest at a Weekly Interest
Rate.



     “Weekly Rate Calculation Date” means Wednesday in each calendar week or, if any Wednesday is
not a Business Day, the first Business Day preceding such Wednesday.



     “Weekly Rate Period” means the seven-day period commencing on the first Thursday following the
corresponding Weekly Rate Calculation Date and running through Wednesday of the following calendar
week, except that (i) the first Weekly Rate Period shall commence on the Delivery Date and end on
and include the first Wednesday occurring on or after the Delivery Date, and (ii) the last Weekly
Rate Period prior to the Fixed Interest Rate Date or final maturity date, whichever is earlier,
shall end on and include the last day immediately preceding the Fixed Interest Rate Date or final
maturity date, as applicable.



     Section 1.02. Content of Certificates and Opinions. Every certificate or opinion provided for
in this Indenture with respect to compliance with any provision hereof shall include (a) a
statement that the Person making or giving such certificate or opinion has read such provision and
the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the
examination or investigation upon which the certificate or opinion is based; (c) a statement that,
in the opinion of such Person, he or she has made or caused to be made such examination or
investigation as is necessary to enable him or her to express an informed opinion with respect to
the subject matter referred to in the instrument to which his or her signature is affixed; (d) a
statement of the assumptions upon which such certificate or opinion is based, and that such
assumptions are reasonable; and (e) a statement as to whether, in the opinion of such Person, such
provision has been complied with.



     Any such certificate or opinion made or given by an officer or an Authorized Representative of
Borrower may be based, insofar as it relates to legal, accounting or any business matter, upon a
certificate or opinion of or representation by counsel, an Accountant or a management consultant,
unless such officer knows, or in the exercise of reasonable care should have known, that the
certificate, opinion or representation with respect to the matters upon which such certificate or
statement may be based, as aforesaid, is erroneous. Any such certificate or opinion made or given
by counsel, an Accountant or a management consultant may be based, insofar as it relates to factual
matters (with respect to which information is in the possession of Borrower) upon a certificate or
opinion of or representation by an officer of Borrower, unless such counsel, Accountant or
management consultant knows, or in the exercise of reasonable care



9









 







should have known, that the certificate or opinion or representation with respect to the
matters upon which such Person’s certificate or opinion or representation may be based, as
aforesaid, is erroneous. The same officer of Borrower, or the same counsel or Accountant or
management consultant, as the case may be, need not certify to all of the matters required to be
certified under any provision of this Indenture, but different officers, counsel, Accountants or
management consultants may certify to different matters, respectively.



     Section 1.03. Interpretation.




     (a) Unless the context otherwise indicates, defined terms shall include all variations
thereof and words expressed in the singular shall include the plural and vice versa and the
use of the neuter, masculine, or feminine gender is for convenience only and shall be deemed
to mean and include the neuter, masculine or feminine gender, as appropriate.




     (b) Headings of articles and sections herein and the table of contents hereof are
solely for convenience of reference, do not constitute a part hereof and shall not affect
the meaning, construction or effect hereof.




     (c) The date of this Indenture is intended as a date for the convenient identification
thereof and is not intended to indicate that this Indenture was executed and delivered on
such date. This Indenture was executed and delivered on the Date of Delivery.




     (d) Unless otherwise indicated, all references herein to “Articles,” “Sections” and
other subdivisions are to the corresponding Articles, Sections or subdivisions of this
Indenture; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or
subdivision hereof.



ARTICLE II




THE NOTES




     Section 2.01. Authorization of Notes. There shall be issued under and secured by this
Indenture a single series of Notes to be designated as “LTF Real Estate VRDN I, LLC Variable Rate
Demand Notes, Series 2008” in the original principal amount of $34,235,000, to be dated as of the
Date of Delivery and to mature fully (subject to prior redemption at the prices and dates and upon
the terms and conditions hereinafter set forth) on June 1, 2033.



     Section 2.02. Terms of the Notes.




     (a) The Notes shall be issued as fully registered Notes without coupons in the
Authorized Denominations. The Notes shall be in substantially the form set forth in
Exhibit A hereto.




     (b) The Notes shall bear interest until payment of the principal thereof and interest
thereon shall have been made or provided for in accordance with the provisions



10









 







hereof, whether at maturity, upon redemption or otherwise. So long as the Notes accrue
interest at a Weekly Interest Rate, interest shall be computed on the basis of a year of 360
days for the number of days actually elapsed. Interest accruing on the Notes at a Fixed
Interest Rate shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.




     (c) Any such interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Registered Owner as of the Record Date for such payment of interest,
and shall be paid to the Person in whose name the Note is registered at the close of
business on a Special Record Date for the payment of such defaulted interest, to be fixed by
Trustee, notice thereof being given to the Registered Owners not less than ten days prior to
such Special Record Date.




     (d) Interest shall be paid on each Interest Payment Date in lawful money of the
United States by check mailed to each Registered Owner at the address shown on the
registration books maintained by Note Registrar pursuant to the terms hereof; provided,
however, interest may also be paid by wire transfer to an address in the continental
United States in the case of a Registered Owner of at least $1,000,000 aggregate principal
amount of Notes upon written request of the Registered Owner thereof 15 days prior to the
applicable Record Date to Note Registrar in a form satisfactory to Note Registrar.




     (e) The principal of the Notes shall be payable in lawful money of the United States of
America on June 1, 2033 at the designated corporate trust office of Trustee at 213 Market
Street, Harrisburg, PA 17101 or at such other office as Trustee may designate. Except as
provided in Section 2.10 hereof, no payment of principal shall be made on any Note unless
and until such Note is tendered to Trustee for cancellation, as the case may be.




     (f) The Notes shall be subject to redemption and purchase as provided in Article IV
hereof.



     Section 2.03. Interest on Notes. The Notes shall bear interest for each day from and
including the Date of Delivery until the Fixed Interest Rate Date or final maturity date, whichever
is earlier, at the Weekly Interest Rate, provided that appropriate adjustments may be made for the
initial period following the Date of Delivery. The Notes shall bear interest from and including
the Fixed Interest Rate Date until the final maturity date of the Notes at the Fixed Interest Rate.




     (a) Weekly Interest Rate.




     (i) A Weekly Interest Rate shall be determined for each Weekly Rate Period as
described below. For each Weekly Rate Period, the interest rate on the Notes in the
Weekly Mode shall be the current market rate determined by Remarketing Agent on the
immediately preceding Weekly Rate Calculation Date, in accordance with this Section.
On each Weekly Rate Calculation Date, Remarketing Agent shall determine the Weekly
Interest Rate for the next succeeding Weekly Rate Period as the rate which, if borne
by the Notes in the



11









 







Weekly Mode, would, in the judgment of Remarketing Agent, be the lowest
interest rate necessary to enable Remarketing Agent to arrange for the sale of all
of the Outstanding Notes in the Weekly Mode at a price equal to the principal amount
thereof plus accrued interest thereon. Notice of such Weekly Interest Rate shall be
given in writing by Remarketing Agent to Borrower, Trustee and Credit Issuer by the
close of business on the Weekly Rate Calculation Date. Anything herein to the
contrary notwithstanding, in no event shall the Weekly Interest Rate borne by the
Notes in the Weekly Mode exceed the lesser of 15% per annum or the maximum rate
permitted by law.




     (ii) If for any reason Remarketing Agent does not determine a Weekly Interest
Rate for any Weekly Rate Period as aforesaid, the Weekly Interest Rate for that
Weekly Rate Period shall be equal to the Weekly Interest Rate in effect for the
immediately preceding Weekly Rate Period for the Notes.




     (iii) The determination of the Weekly Interest Rate by Remarketing Agent
pursuant to this Indenture shall be conclusive and binding upon Borrower, Trustee,
Remarketing Agent, Credit Issuer and the Registered Owners.




     (b) Fixed Interest Rate.




     (i) A Fixed Interest Rate shall be determined for the Fixed Rate Period as
described below. The Fixed Interest Rate for Notes subject to the Fixed Interest
Rate shall be determined by Remarketing Agent as the lowest rate of interest that,
in the judgment of Remarketing Agent, would be necessary to enable Remarketing Agent
to arrange for the sale of the Notes subject to the Fixed Interest Rate in a
secondary market sale at a price equal to the principal amount thereof, plus accrued
interest, on the first Business Day of the Fixed Rate Period. Notice of the Fixed
Interest Rate shall promptly be given by telephone (promptly confirmed in writing)
by Remarketing Agent to Trustee, Borrower and Credit Issuer, if any. Determination
of the Fixed Interest Rate pursuant to this Section shall be conclusive and binding
upon Trustee, Borrower, Credit Issuer, if any, Remarketing Agent and the Registered
Owners and shall not exceed the lesser of 15% per annum or the highest rate
permitted by law.



     Section 2.04. Conversion to Fixed Interest Rate. Borrower, with the prior written consent of
Credit Issuer, unless the Letter of Credit then in effect shall expire or terminate in accordance
with its terms upon any such conversion, shall have the option to convert the Notes from the Weekly
Mode to a Fixed Interest Rate as herein provided on any Fixed Interest Rate Date Borrower shall
select, provided that each Fixed Interest Rate Date shall be an Interest Payment Date and that the
Notes shall be converted in whole and not in part. Borrower may exercise its option to direct the
conversion of the Notes to a Fixed Interest Rate only one time. Borrower shall exercise such
option by giving written notice to Trustee, Remarketing Agent and Credit Issuer, stating its
election to convert the Rate Mode of the Notes to the Fixed Interest Rate, stating the Fixed
Interest Rate Date therefor, not less than 60 days prior to such Fixed Interest Rate Date, or such
shorter period of time as may be consented to by Trustee, Credit Issuer and Remarketing Agent, each
such consent not to be unreasonably withheld. Upon receipt



12









 







of such notice by Trustee, Trustee may conclusively assume that Remarketing Agent and Credit
Issuer also received a copy of such notice. Notice of the exercise of an option to convert shall
not be effective unless, within 10 days of the delivery of such notice, there shall have been
delivered to Trustee (i) written consent of Credit Issuer to such conversion unless the Letter of
Credit expires or terminates in accordance with its terms upon such conversion and (ii) if the
Letter of Credit will expire or terminate in accordance with its terms on the Fixed Interest Rate
Date and if an Alternate Credit Facility or Alternate Letter of Credit is to be delivered upon the
conversion, a commitment for the delivery of an Alternate Credit Facility or Alternate Letter of
Credit to secure the Notes to be effective on and as of the Fixed Interest Rate Date. In the case
of a conversion in accordance with this Section 2.04, Trustee shall, at the expense of Borrower,
give notice by first-class mail (postage prepaid) to the Registered Owners not less than 30 days
prior to the proposed Fixed Interest Rate Date stating (i) that the interest rate on such Notes is
scheduled to be converted to a Fixed Interest Rate through the maturity date, (ii) the proposed
Fixed Interest Rate Date, (iii) that Borrower, on or before the tenth day prior to the proposed
Fixed Interest Rate Date, may determine not to convert the Notes, in which case Trustee shall, at
the expense of Borrower, notify the Registered Owners in writing to such effect, (iv) whether a
Letter of Credit will secure the Notes after the conversion to the Fixed Interest Rate and, in the
event that an Alternate Credit Facility or Alternate Letter of Credit is to be delivered in
connection with the conversion, the name of the provider and its current ratings by each Rating
Agency then rating the Notes and (v) that all such Outstanding Notes will be subject to a mandatory
purchase on the Fixed Interest Rate Date at a price of par plus accrued and unpaid interest, if
any, and that such mandatory purchase will occur even if any condition to the conversion is not met
or the Notes to be converted are not remarketed in full. Trustee, Borrower, Credit Issuer and
Remarketing Agent shall not be liable to any Registered Owners for failure to give any notice
required above or for failure of any Registered Owners to receive any such notice. Upon conversion
under this Section, the Notes being converted shall be subject to mandatory purchase on the Fixed
Interest Rate Date. If any condition to which a conversion is subject is not satisfied in full or
any Alternate Credit Facility or Alternate Letter of Credit required to be delivered in connection
with such conversion is not delivered to Trustee or if the Notes being converted to a Fixed
Interest Rate on such Fixed Interest Rate Date have not been fully remarketed by Remarketing Agent
pursuant to Section 8.09 hereof, all by 2:00 p.m., New York time, on the Fixed Interest Rate Date,
then the proposed conversion shall be deemed to have failed, but the mandatory tender of the Notes
under Section 4.07 hereof still shall occur.



     Section 2.05. Execution of Notes. The Notes shall be executed in the name and on behalf of
Borrower. The Notes shall then be delivered to Note Registrar for authentication by it. In case
any of the officers who shall have signed or attested any of the Notes shall cease to be such
officer or officers of Borrower before the Notes so signed or attested shall have been
authenticated or delivered by Note Registrar or issued by Borrower, such Notes may nevertheless be
authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as
binding upon Borrower as though those who signed and attested the same had continued to be such
officers of Borrower, and also any Notes may be signed and attested on behalf of Borrower by such
persons as at the actual date of execution of such Notes shall be the proper officers of Borrower
although at the nominal date of such Notes any such person shall not have been such officer of
Borrower.



13









 





     Only such of the Notes as shall bear thereon a certificate of authentication substantially in
the form set forth in Exhibit A hereto, with the manual signature of Note Registrar, shall be valid
or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate
of Note Registrar shall be conclusive evidence that the Notes so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to the benefits of this Indenture.



     Section 2.06. Transfer of Notes.




     (a) Any Note may, in accordance with its terms, and subject to the transfer
restrictions set forth in subsection (b) of this Section, be transferred, upon the books
required to be kept pursuant to the provisions of Section 2.08 hereof, by the person in
whose name it is registered, in person or by his duly authorized attorney, upon surrender of
such registered Note for cancellation, accompanied by delivery of a written instrument of
transfer, duly executed in a form approved by Note Registrar. Transfer of a Note shall not
be permitted by Note Registrar: (a) if Note Registrar has received notice from the
Registered Owner of such Note that such Note will be delivered to Tender Agent for purchase
on or before the next succeeding Interest Payment Date, (b) if Note Registrar receives such
written instrument of transfer after the Record Date prior to the next succeeding Interest
Payment Date or (c) the provisions of subsection (b) of this Section have not been
satisfied.




     Whenever any Note or Notes shall be surrendered for transfer, Borrower shall execute
and Note Registrar shall authenticate and deliver a new Note or Notes for a like aggregate
principal amount in an Authorized Denomination. Note Registrar shall require the Registered
Owner requesting such transfer to pay any tax or other governmental charge required to be
paid with respect to such transfer, and may in addition require the payment of a reasonable
sum to cover expenses incurred by Borrower and Note Registrar in connection with such
transfer.




     Notwithstanding the foregoing, prior to the Fixed Interest Rate Date, no Notes held by
or for the account of Borrower shall be transferred upon the books required to be kept
pursuant to Section 2.08 hereof.




     (b) Every Note that bears or is required under this subsection to bear the legend set
forth in Exhibit A — Form of Note (the “Restricted Securities”) shall be subject to the
restrictions on transfer set forth in this subsection (including those set forth in the
legend set forth in Exhibit A — Form of Note (the “Transfer Restriction Legend”)) unless
such restrictions on transfer shall be waived by written consent of Borrower, and the holder
of each such Restricted Security, by such Noteholder’s acceptance thereof, agrees to be
bound by all such restrictions on transfer. As used in this subsection, the term “transfer”
encompasses any sale, pledge, loan, transfer or other disposition whatsoever of any
Restricted Security.




     Until the expiration of the holding period applicable to sales thereof under paragraph
(b)(1)(ii) of Rule 144 under the Securities Act of 1933, as amended (or any successor
provision) (the “Securities Act”), any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof) shall bear a legend in



14









 







substantially the form of the Transfer Restriction Legend and the holder of such
Restricted Security will deliver to such Person to whom such Note is transferred a notice
substantially to the effect of the Transfer Restriction Legend, unless such Note has been
sold pursuant to a registration statement that has been declared effective under the
Securities Act (and which continues to be effective at the time of such transfer), or unless
otherwise agreed by Borrower in writing, with written notice thereof to Trustee.




     No Person may transfer or exchange a Restricted Security or a beneficial interest in a
Restricted Security (including, without limitation, the removal of the Transfer Restriction
Legend thereon) unless such transfer or exchange is made (i) to Borrower or any subsidiary
thereof, (ii) pursuant to an effective registration statement under the Securities Act,
(iii) to a qualified institutional buyer in compliance with the applicable requirements of
Rule 144A or (iv) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act, if available, or another exemption from the registration requirements of the
Securities Act and, in the case of clauses (i), (iii) and (iv), if requested by the Note
Registrar (or Borrower in the case of a transfer or exchange pursuant to clause (iv) above),
certificates or an opinion of counsel in form reasonably acceptable to the Note Registrar
(and Borrower in the case of a transfer or exchange pursuant to clause (iv) above) stating
that (A) such transfer or exchange is in compliance with the Securities Act and applicable
state securities law and (B) if such transferee or exchangee seeks the removal of the
Transfer Restriction Legend, the restrictions on transfer contained herein and in the
Transfer Restriction Legend are no longer required in order to maintain compliance with the
Securities Act and applicable state securities law. Upon satisfaction of the requirements
of this subsection with respect to the removal of the Transfer Restriction Legend, as
appropriate, such Restricted Security or such beneficial interest in such Restricted
Security shall be exchanged for an unrestricted Note or such beneficial interest in an
unrestricted Note.




     Any Note may be endorsed with or have incorporated in the text thereof such legends or
recitals or changes not inconsistent with the provisions of this Indenture as may be
required by Trustee, DTC or by the National Association of Securities Dealers, Inc. in order
for the Notes to be tradeable on The Portal Market or as may be required for the Notes to be
tradeable on any other market developed for trading of securities pursuant to Rule 144A or
required to comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange or automated quotation system upon which the
Notes may be listed or traded or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular Notes are subject.



     Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Note other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof. Trustee shall have no



15









 







responsibility for the actions or omissions of any securities depositary, or for the accuracy
of the books or records of any securities depositary.



     Section 2.07. Exchange of Notes. Notes may be exchanged at the designated corporate trust
office of Trustee for a like aggregate principal amount of Notes of other Authorized Denominations.
Note Registrar shall require the Registered Owner requesting such exchange to deliver such Notes
to be exchanged and to pay any tax or other governmental charge required to be paid with respect to
such exchange, and may in addition require the payment of a reasonable sum to cover expenses
incurred by Borrower or Note Registrar in connection with such exchange. Thereupon, the Notes
delivered to Note Registrar for exchange shall be cancelled by Note Registrar.



     Section 2.08. Note Registrar. Trustee is hereby designated and appointed as Note Registrar
(the “Note Registrar”). Note Registrar will keep or cause to be kept at its designated corporate
trust office, or at such other office as Note Registrar may designate, sufficient books for the
registration and transfer of the Notes, which shall at all times be open to inspection during
regular business hours by Borrower; and, upon presentation for such purpose, Note Registrar shall,
under such reasonable regulations as it may prescribe, register or transfer or cause to be
registered or transferred, on such books, Notes as hereinbefore provided.



     Section 2.09. Temporary Notes. The Notes may be issued in temporary form exchangeable for
definitive Notes when ready for delivery. Any temporary Note may be printed, lithographed or
typewritten, shall be in an Authorized Denomination, shall be in fully registered form without
coupons and may contain such reference to any of the provisions of this Indenture as may be
appropriate and in a form acceptable to Paying Agent. Every temporary Note shall be executed by
Borrower and be authenticated by Note Registrar upon the same conditions and in substantially the
same manner as the definitive Notes. If Borrower issues temporary Notes it will execute and
deliver definitive Notes as promptly thereafter as practicable, and thereupon the temporary Notes
may be surrendered, for cancellation, in exchange therefor at the designated corporate trust office
of Note Registrar and Note Registrar shall authenticate and deliver in exchange for such temporary
Notes an equal aggregate principal amount of definitive Notes in Authorized Denominations. Until
so exchanged, the temporary Notes shall be entitled to the same benefits under this Indenture as
definitive Notes authenticated and delivered hereunder.



     Section 2.10. Notes Mutilated, Lost, Destroyed or Stolen. If any Note shall become mutilated,
Borrower, at the expense of the Registered Owner of said Note, shall execute, and Note Registrar
shall thereupon authenticate and deliver, a new Note of like tenor in exchange and substitution for
the Note so mutilated, but only upon surrender to Note Registrar of the Note so mutilated. Every
mutilated Note so surrendered to Note Registrar shall be cancelled by it and delivered to, or upon
the order of, Borrower. If any Note shall be lost, destroyed or stolen, evidence of such loss,
destruction or theft may be submitted to Note Registrar and, if such evidence be satisfactory to it
and indemnity satisfactory to Note Registrar and Borrower shall be given, Borrower, at the expense
of the Registered Owner, shall execute, and Note Registrar shall thereupon authenticate and
deliver, a new Note of like tenor in lieu of and in substitution for the Note so lost, destroyed or
stolen (or if any such Note shall have matured or shall be about to mature, instead of issuing a
substitute Note, Borrower may pay the same without surrender thereof upon such maturity date).
Note Registrar may require payment by the Registered Owner



16









 







of a sum not exceeding the actual cost of preparing each new Note issued under this Section
and the expenses which may be incurred by Borrower and Note Registrar in the premises. Any Note
issued under the provisions of this Section in lieu of any Note alleged to be lost, destroyed or
stolen shall constitute an original additional contractual obligation on the part of Borrower
whether or not the Note so alleged to be lost, destroyed or stolen be at any time enforceable by
anyone and shall be entitled to the benefits of this Indenture with all other Notes secured by this
Indenture.



     Section 2.11. Absolute and Unconditional Obligations. The obligations of Borrower to make the
Note Payments and other payments required by the terms hereof and to provide or cause to be
provided the Letter of Credit pursuant to the terms hereof, and to perform and observe the other
agreements on its part contained herein, shall be absolute and unconditional, irrespective of any
defense or any rights of set-off, recoupment or counterclaim it might otherwise have, and during
the term of this Indenture, Borrower shall pay absolutely all payments to be made pursuant to the
terms hereof, the obligation to provide or cause to be provided the Letter of Credit pursuant to
the terms hereof, and all other payments required hereunder, free of any deductions and without
abatement, diminution or set-off. Until such time as the principal of, premium, if any, and
interest on the Notes shall have been fully paid, or provision for the payment thereof shall have
been made as required by this Indenture, Borrower (a) will not suspend or discontinue any payments
required to be made by Borrower pursuant to this Indenture, including (without limitation) the
payments provided for in Section 5.02 hereof and the obligation to provide or cause to be provided
the Letter of Credit pursuant to Section 5.04 hereof; (b) will perform and observe all of its other
covenants contained in this Agreement; and (c) except as provided in Article IV hereof, will not
terminate this Indenture for any cause, including (without limitation) commercial frustration of
purpose, any change in the tax or other laws of the United States of America or of the State, or
any political subdivision of either of these, or any failure of Trustee to perform and observe any
covenant, whether express or implied, or any duty, liability or obligation arising out of or
connected with this Indenture.



     Section 2.12. Book-Entry Only System.




     (a) Except as otherwise provided in subsections (b) and (c) of this Section, the Notes
initially authenticated and delivered hereunder shall be registered in the name of Cede &
Co., as nominee of DTC or such other nominee as DTC shall request. Payments of interest on,
principal of and any premium on the Notes shall be made to the account of Cede & Co. on each
Note Payment Date at the address indicated for Cede & Co. in the registration books
maintained by Note Registrar by transfer of immediately available funds. DTC has
represented to Borrower that it will maintain a book-entry system in recording ownership
interests of its participants (the “Direct Participants”) and the ownership interests of a
purchaser of a beneficial interest in the Notes (a “Beneficial Owner”) will be recorded
through book entries on the records of the Direct Participants.




     (b) The Notes shall be initially issued in the form of a separate single authenticated
fully registered Note in the amount of $34,235,000. With respect to Notes so registered in
the name of Cede & Co., Borrower, Trustee and Tender Agent shall have no responsibility or
obligation to any Direct Participant or to any Beneficial Owner of such Notes. Without
limiting the immediately preceding sentence, Borrower, Trustee and



17









 







Tender Agent shall have no responsibility or obligation with respect to (i) the
accuracy of the records of DTC, Cede & Co. or any Direct Participant with respect to any
beneficial ownership interest in the Notes, (ii) the delivery to any Direct Participant,
Beneficial Owner or other person, other than DTC, of any notice with respect to the Notes,
including any notice of redemption, (iii) the payment to any Direct Participant, Beneficial
Owner or other person, other than DTC, of any amount with respect to the principal or
redemption price of, or interest on, the Notes or (iv) any consent given or other action
taken by DTC as Registered Owner of the Notes. Borrower, Trustee and Tender Agent may treat
DTC as, and deem DTC to be, the absolute Registered Owner of each Note for all purposes
whatsoever including (but not limited to) (A) payment of the principal or redemption price
of, and interest on, each such Note, (B) giving notices of conversion or redemption and
other matters with respect to such Notes and (C) registering transfers with respect to such
Notes. Trustee shall pay the principal or redemption price of, and interest on, all Notes
only to or upon the order of DTC, and all such payments shall be valid and effective to
fully satisfy and discharge Borrower’s obligations with respect to such principal or
redemption price, and interest, to the extent of the sum or sums so paid. No person other
than DTC shall receive a Note evidencing the obligation of Borrower to make payments of
principal or redemption price of, and interest on, the Notes pursuant to this Indenture.
Upon delivery by DTC to Trustee of written notice to the effect that DTC has determined to
substitute a new nominee in place of Cede & Co., and subject to the transfer provisions
hereof, the word “Cede & Co.” in this Indenture shall refer to such new nominee of DTC.




     (c) (i) DTC may determine to discontinue providing its services with respect to the
Notes at any time by giving reasonable written notice to Borrower, Trustee and Tender Agent
and discharging its responsibilities with respect thereto under applicable law.




     (ii) Borrower, in its sole discretion and without the consent of any other
person, may terminate, upon provision of notice to Trustee and Tender Agent, the
services of DTC with respect to the Notes if Borrower determines that the
continuation of the system of book-entry only transfers through DTC (or a successor
securities depository) is not in the best interests of the Beneficial Owners of the
Notes or is burdensome to Borrower, and shall terminate the services of DTC with
respect to the Notes upon receipt by Borrower, Trustee and Tender Agent of written
notice from DTC to the effect that DTC has received written notice from Direct
Participants having interests, as shown in the records of DTC, in an aggregate
principal amount of not less than fifty percent (50%) of the aggregate principal
amount of the then Outstanding Notes to the effect, that: (A) DTC is unable to
discharge its responsibilities with respect to such Notes, or (B) a continuation of
the requirement that all of the Outstanding Notes be registered in the registration
books kept by Trustee in the name of Cede & Co., as nominee of DTC, is not in the
best interest of the Beneficial Owners of such Notes.




     (d) Upon the termination of the services of DTC with respect to the Notes pursuant to
subsection (c)(ii)(B) hereof, or upon the discontinuance or termination of the



18









 







services of DTC with respect to the Notes pursuant to subsection (c)(i) or
subsection (c)(ii)(A) hereof after which no substitute securities depository willing to
undertake the functions of DTC hereunder can be found or which, in the opinion of Borrower,
is willing and able to undertake such functions upon reasonable and customary terms, the
Notes shall no longer be restricted to being registered in the registration books kept by
Note Registrar in the name of Cede & Co. as nominee of DTC. In such event, Borrower shall
issue and Trustee shall transfer and exchange Note certificates as requested by DTC or
Direct Participants of like principal amount, series and maturity, in Authorized
Denominations to the identifiable Beneficial Owners in replacement of such Beneficial
Owners’ beneficial interests in the Notes.




     (e) Notwithstanding any other provision of this Indenture to the contrary, so long as
any Note is registered in the name of Cede & Co., as nominee of DTC, all payments with
respect to the principal or redemption price of, and interest on, such Note and all notices
with respect to such Note shall be made and given, respectively, to DTC.




     (f) In connection with any notice or other communication to be provided to Registered
Owners pursuant to this Indenture by Borrower, Tender Agent or Trustee with respect to any
consent or other action to be taken by Registered Owners, Borrower, Tender Agent or Trustee,
as the case may be, shall establish a record date for such consent or other action and give
DTC notice of such record date not less than 15 calendar days in advance of such record date
to the extent possible.




     (g) Notwithstanding any provision herein to the contrary, Borrower and Trustee may
agree to allow DTC, or its nominee, Cede & Co., to make a notation on any Note redeemed in
part to reflect, for informational purposes only, the principal amount and date of any such
redemption.




     (h) Notwithstanding any provision herein to the contrary, so long as the Notes are
subject to a system of book-entry only transfers pursuant to this Section, any requirement
for the delivery of Notes to Tender Agent in connection with a mandatory tender pursuant to
Section 4.07 hereof shall be deemed satisfied upon the transfer, on the registration books
of DTC, of the beneficial ownership interests in such Notes tendered for purchase to the
account of Tender Agent, or a Direct Participant acting on behalf of Tender Agent.



     Section 2.13. CUSIP Numbers. Borrower in issuing the Notes may use “CUSIP” numbers (if then
generally in use), and, if so, Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Registered Owners; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. Borrower will promptly notify Trustee in writing of any change in the “CUSIP”
numbers.



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ARTICLE III




ISSUANCE OF NOTES; APPLICATION OF PROCEEDS




     Section 3.01. Issuance of the Notes. Upon satisfaction of the conditions precedent set forth
in Section 3.01 of the Reimbursement Agreement as evidenced by the issuance of the Letter of
Credit, Borrower shall execute and issue the Notes and Note Registrar shall authenticate and
deliver Notes in the aggregate principal amount set forth in Section 2.01 hereof. The proceeds
received from the sale of the Notes in the amount of $34,072,383.75 (which represents the principal
amount of the Notes, $34,235,000, less underwriter’s discount of $162,616.25) shall be deposited in
trust with Trustee, who shall deposit said proceeds in the Note Fund.



     Section 3.02. Establishment and Application of Note Fund.




     (a) Trustee shall establish, maintain and hold in trust a separate fund designated as
the “Note Fund.” The moneys in the Note Fund shall be used and withdrawn as provided
herein.




     (b) Before any payment from the Note Fund shall be made, Borrower shall file or cause
to be filed with Trustee a Payment Request Form, executed by Borrower and Credit Issuer,
fully completed and with all supporting documents described therein attached thereto;
provided, however, moneys in the Note Fund shall not be disbursed unless and until Borrower
satisfies the requirements set forth in Section 3.01 of the Reimbursement Agreement. Upon
receipt of a Payment Request Form (which may be sent by facsimile transmission) executed on
behalf of Credit Issuer and an Authorized Representative of Borrower, Trustee shall disburse
proceeds from the Note Fund in such amounts and to such parties as directed therein. Upon
receipt of a written request from Credit Issuer (which may be sent by facsimile
transmission), Trustee shall disburse proceeds from the Note Fund in order to reimburse
Credit Issuer for any real estate-related costs such as costs for the appraisal,
environmental audit and engineer’s inspections.




     (c) Upon (i) the occurrence of an Event of Default or notice from Credit Issuer that an
Event of Default has occurred, or (ii) any such time that there are no longer any
Outstanding Notes, Trustee, at the direction of Credit Issuer, shall transfer any remaining
balance in the Note Fund, to a separate account within the Redemption Account, which Trustee
shall establish and hold in trust, and which shall be entitled the “Surplus Account.” The
moneys in the Surplus Account shall be used and applied first to reimburse Credit Issuer for
any draws theretofore made by Trustee under the Letter of Credit but not yet reimbursed
(including, without limitation, any draws relating to the purchase of any Borrower Notes),
and then to pay principal only in connection with the call and redemption of Notes to the
maximum degree permissible in accordance with Section 4.01 hereof, and at the earliest
possible dates at which Notes can be redeemed without payment of premium pursuant to this
Indenture.



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ARTICLE IV




REDEMPTION AND PURCHASE OF NOTES




     Section 4.01. Terms of Redemption. The Notes are subject to redemption by Borrower if and to
the extent Borrower is entitled to make and makes, or is required to make, a payment or prepayment
pursuant to this Indenture. All such prepayments by Borrower shall be deposited in the Redemption
Account. Borrower shall not call the Notes for optional redemption, and Trustee shall not give
notice of any such optional redemption, unless Borrower has made or caused to be made all Note
Payments due hereunder and any required principal payments required under the Reimbursement
Agreement.



     The Notes shall be subject to redemption by Borrower upon the following terms in increments of
$5,000, provided that in the event of redemption of less than all of the Notes, the amount which
remains Outstanding shall be in Authorized Denominations:




     (a) Sinking Fund Redemption. The Notes are not subject to mandatory sinking fund
redemption.




     (b) Optional Redemption During Weekly Mode. While the Notes are in the Weekly Mode,
the Notes are subject to optional redemption, in whole on any Business Day or in part on any
Interest Payment Date, at the option of Borrower, with the written approval of Credit
Issuer, at a redemption price of 100% of the outstanding principal amount of the Notes to be
redeemed, plus interest accrued thereon to the redemption date. Borrower shall be deemed to
have exercised such option and Credit Issuer shall be deemed to have given such consent in
connection with any redemptions scheduled pursuant to the Reimbursement Agreement, and such
exercise and consent shall remain in effect unless and until Trustee receives contrary
written notification from Credit Issuer.




     (c) No Optional Redemption After the Fixed Interest Rate Date. After the Fixed
Interest Rate Date, the Notes are not subject to redemption at the option of Borrower.




     (d) Mandatory Redemption upon Expiration of Letter of Credit. The Notes shall be
redeemed in whole, at a redemption price equal to 100% of the outstanding principal amount
thereof, plus interest accrued thereon to the redemption date, on a redemption date not less
than 15 days preceding the Expiration Date of the Letter of Credit if no Alternate Credit
Facility or Alternate Letter of Credit has been delivered to Trustee in accordance with
Section 5.04 or 5.07 hereof.




     (e) Mandatory Redemption upon Occurrence of Extraordinary Events. To the extent of a
prepayment by Borrower as a result of the damage, destruction or condemnation of the
Property and as provided in the Reimbursement Agreement, the Notes are subject to
redemption, in whole on any Business Day or in part on the first Business Day of each
calendar month, upon the written direction of Borrower and with the written approval of
Credit Issuer, after payment of any amounts owed to Credit Issuer pursuant to the
Reimbursement Agreement, prior to their stated maturity, on any date, at



21









 







a redemption price equal to 100% of the outstanding principal amount of such Notes that
are redeemed, plus interest accrued thereon to the redemption date.




     (f) Mandatory Redemption for Reimbursement Agreement Default. The Notes shall be
redeemed in whole, at a redemption price equal to 100% of the outstanding principal amount
thereof, plus interest accrued thereon to the redemption date, within five calendar days
(and before the following Saturday if the fifth calendar day is a Saturday) from the date
Trustee receives written notice from Credit Issuer that an event of default has occurred
under the Reimbursement Agreement and directing Trustee to redeem the Notes.




     (g) Mandatory Redemption from Surplus Account. The Notes are subject to redemption in
part on any Interest Payment Date at a redemption price equal to 100% of the outstanding
principal amount thereof, plus accrued interest to the redemption date, on the next
succeeding Interest Payment Date to the extent of amounts are deposited in the Surplus
Account and directed to be used to redeem Notes as provided in Section 3.02(c) hereof.



     Section 4.02. Selection of Notes for Redemption. Whenever provision is made in this Indenture
for the redemption of less than all of the Notes, Trustee shall select the Notes to be redeemed
from all Notes or such given portion thereof not previously called for redemption by lot in any
manner which Trustee in its sole discretion shall deem appropriate and fair, to be credited against
the principal of the Notes to be redeemed; provided, however, that in connection with an optional
redemption of the Notes, redemption proceeds shall first be used to reimburse Credit Issuer for any
draw on the Letter of Credit; provided, further that Borrower Notes shall be the first Notes
selected for redemption and the redemption price for such Borrower Notes shall be paid to Credit
Issuer; and provided, finally, that the Notes Outstanding after giving effect to any redemption
shall be in Authorized Denominations. Upon selection of Notes for redemption on or prior to the
Fixed Interest Rate Date, Trustee will promptly notify Tender Agent of the Notes selected for
redemption.



     Section 4.03. Notice of Redemption.




     (a) Trustee shall mail notice of redemption (i) prior to the Fixed Interest Rate Date,
not less than 15 days before such redemption date (except in the case of redemptions
pursuant to Section 4.01(f) hereof, in which case notice shall be given as soon as
practicable), and (ii) after the Fixed Interest Rate Date, not less than 30 days before such
redemption date (except in the case of redemptions pursuant to Section 4.01(f) hereof, in
which case notice shall be given as soon as practicable) to the respective Registered Owners
of any Notes designated for redemption at their addresses on the registration books
maintained by Note Registrar. Each notice of redemption shall identify the Notes to be
redeemed (including CUSIP numbers), state the redemption date, the place or places of
redemption, if less than all of the Notes are to be redeemed, the distinctive numbers of the
Notes to be redeemed, and in the case of Notes to be redeemed in part only, the respective
portions of the principal amount thereof to be redeemed. Each such notice shall also state
that on said date there will become due and payable on each of said Notes the principal
thereof or of said specified portion of the principal thereof in the



22









 







case of a Note to be redeemed in part only, and that from and after such redemption
date interest thereon shall cease to accrue, and shall require that such Notes be then
surrendered.




     (b) Notice of redemption of Notes shall be given by Trustee, at the expense of
Borrower, for and on behalf of Borrower.




     (c) In the case of redemption pursuant to Section 4.01 hereof in connection with
refunding obligations to be issued for such purpose, notice of such redemption may be
cancelled if such refunding obligations are not issued on or prior to the date fixed for
such redemption.




     (d) Receipt of such notice shall not be a condition precedent to such redemption and
failure so to mail any such notice to a Registered Owner shall not affect the validity of
the proceedings for the redemption of Notes of any Registered Owner.




     (e) Trustee shall, at the same time the notice in subsection (a) above is mailed, also
send a copy of the notice by certified mail or by overnight delivery to Tender Agent,
Remarketing Agent, DTC and any Information Service. Failure to provide notice to Tender
Agent, Remarketing Agent, a Securities Depository or to an Information Service shall not
affect the validity of proceedings for the redemption of Notes.



     Section 4.04. Partial Redemption of Notes. Upon surrender of any Note redeemed in part only,
Borrower shall execute and Note Registrar shall authenticate and deliver to the Registered Owner
thereof, at the expense of Borrower, a new Note or Notes of Authorized Denominations equal in
aggregate principal amount to the unredeemed portion of the Note surrendered.



     Section 4.05. Effect of Redemption.




     (a) In the case of a prepayment in full of the Notes by Borrower pursuant to Section
4.01 hereof, the amount to be paid by Borrower shall be a sum sufficient, together with
other funds deposited with Trustee and available for such purpose, to pay (a) the redemption
price specified in this Indenture for all Outstanding Notes, plus all interest accrued and
to accrue to the redemption date, (b) all reasonable and necessary fees and expenses of
Trustee, Credit Issuer and any Paying Agent allowable pursuant to this Indenture or the
Reimbursement Agreement accrued and to accrue through final payment of the Notes and (c) all
other liabilities of Borrower accrued and to accrue under this Indenture. In the case of
partial prepayment of the Notes by Borrower pursuant to Section 4.01 hereof, the amount to
be paid by Borrower shall be a sum sufficient, together with other funds deposited with
Trustee and available for such purpose, to pay the redemption price specified in this
Indenture, for the Notes that are to be redeemed, plus all interest accrued and to accrue to
the redemption date, and to pay expenses of redemption of such Notes.




     (b) Only Available Moneys can be used for the redemption of the Notes. Borrower shall
cause Available Moneys for payment of the redemption price of the Notes, together with
interest accrued to the date fixed for redemption and other amounts



23









 







payable hereunder, to be delivered to Trustee. Provided that Trustee has received such
Available Moneys, the Notes (or portions thereof) so called for redemption shall become due
and payable on the redemption date designated in the notice of redemption, interest on the
Notes (or portions thereof) so called for redemption shall cease to accrue, said Notes (or
portions thereof) shall cease to be entitled to any benefit or security under this
Indenture, and the Registered Owners of said Notes shall have no rights in respect thereof
except to receive payment of said principal, premium, if any, and interest accrued to the
date fixed for redemption.



     Subject to Section 4.04 hereof, all Notes redeemed pursuant to the provisions of this Article
shall be cancelled upon surrender thereof by Trustee and delivered to or upon the order of
Borrower.



     Section 4.06. Purchase of Notes by Tender Agent. Prior to the Fixed Interest Rate Date, the
Notes may be delivered by the Registered Owners thereof to Tender Agent at its designated corporate
trust office, or such other place as Tender Agent may designate in writing to Registered Owners,
Trustee, Credit Issuer, Borrower and Remarketing Agent. Any Note so delivered shall be purchased
by Tender Agent on demand of the Registered Owner thereof on the close of any Business Day at a
purchase price equal to the principal amount thereof plus accrued interest to but not including the
date of purchase (unless such date is an Interest Payment Date, in which case the purchase price
will be the principal amount of such Note); provided that Tender Agent will be under no obligation
to use its own funds to purchase such Notes and provided further that sufficient funds in the
Purchase Fund are immediately available for purchase of the Notes and upon delivery to Tender Agent
of an irrevocable written notice by 3:00 p.m., New York time, (if not received by 3:00 p.m., New
York time, on a Business Day it shall be deemed received on the next succeeding Business Day),
which states (i) the name and address of the Registered Owner, (ii) the number or numbers of the
Note or Notes to be purchased, (iii) the aggregate principal amount of the Note or Notes to be
purchased, and (iv) the date on which the Note is or Notes are to be purchased, which date shall be
a Business Day not prior to the seventh calendar day next succeeding the date of delivery of such
written notice and delivery to Tender Agent at or prior to 9:00 a.m., New York time, on the
Purchase Date specified in the aforesaid notice, of the Note or Notes to be tendered; provided,
however, that any Note for which a notice of the exercise of the purchase option has been given as
provided in this subsection and which is not so delivered shall be deemed delivered on the date of
purchase and shall be purchased in accordance with this Indenture.



     All Notes, or portions thereof, purchased pursuant to this Section shall be purchased in an
amount equal to an Authorized Denomination. Trustee shall upon request of Tender Agent calculate
the purchase price of any Notes purchased pursuant to this Section and shall notify Tender Agent of
such amount prior to the Purchase Date.



     Section 4.07. Mandatory Tender of Notes. On each Mandatory Tender Date, the Notes shall be
subject to mandatory tender for purchase on such Mandatory Tender Date at a purchase price equal to
the principal amount thereof, plus accrued interest, if any. The Registered Owners of all of the
Outstanding Notes shall be required to tender their Notes for purchase by Tender Agent on the
Mandatory Tender Date. All Notes which on the Mandatory Tender Date have not been tendered for
purchase (the “Non-Tendered Notes”) shall be deemed



24









 







purchased by Tender Agent on the Mandatory Tender Date at a price of the principal amount
thereof plus unpaid interest accrued, if any, to such date. Replacement Notes for the Non-Tendered
Notes may be remarketed and delivered to new Registered Owners as instructed by Borrower or
Remarketing Agent. Tender Agent shall hold in trust for the Registered Owners of the Non-Tendered
Notes the purchase price thereof, and after the Mandatory Tender Date such Registered Owners will
no longer be entitled to any of the benefits of this Indenture except for the payment of such
purchase price.



ARTICLE V




REVENUES; FUNDS AND ACCOUNTS;

PAYMENT OF PRINCIPAL AND INTEREST




     Section 5.01. Pledge and Assignment; Revenue Fund.




     (a) Subject only to the provisions of this Indenture permitting the application thereof
for the purposes and on the terms and conditions set forth herein, all amounts (including
proceeds of the sale of Notes) held in any fund or account established pursuant to this
Indenture (the “Account Funds”), except to the extent provided in Sections 5.05, 7.03, 8.06
and 8.10(a) hereof) are hereby pledged by Borrower to secure the payment of the principal
and purchase price of and interest on the Notes in accordance with their terms and the
provisions of this Indenture and thereafter, on a basis subordinate thereto, to secure
Borrower’s obligations to Credit Issuer under the Reimbursement Agreement. Said pledge
shall constitute a lien on and security interest in such assets and shall attach, be
perfected and be valid and binding from and after delivery by Trustee of the Notes without
any physical delivery thereof or further act.




     (b) Trustee agrees that, so long as Trustee holds any Account Funds, Trustee shall hold
the same as the collateral agent and bailee of Credit Issuer (but only to the extent of
amounts paid by Credit Issuer under the Letter of Credit for which Credit Issuer has not
received reimbursement from Borrower) for purposes of perfecting the lien and security
interest of Credit Issuer therein. Upon receipt of written notice from Credit Issuer that
Borrower has failed to reimburse Credit Issuer for a draw under the Letter of Credit as
required by the Reimbursement Agreement, Trustee shall either cause all accounts and
investments (but only to the extent of amounts paid by Credit Issuer under the Letter of
Credit for which Credit Issuer has not received reimbursement from Borrower) which are the
subject of the preceding sentence to be titled in such a manner to reflect that Credit
Issuer has an interest therein as described in the preceding sentence or ensure that each
Person with whom Trustee places or through whom Trustee invests any moneys which are the
subject of the preceding sentence is advised of Credit Issuer’s interest therein as
described in the preceding sentence and instructed to mark its records to reflect such
interest. Trustee shall not pledge, hypothecate, transfer or release all or any portion of
the Account Funds to any persons (including, without limitation, Borrower) other than
Registered Owners of the Notes in payment thereof or in any manner not in accordance with
this Indenture or the Reimbursement Agreement without the written consent of Credit Issuer,
except as otherwise required by a court of law.



25









 






     (c) All Note Payments shall be promptly deposited by Trustee upon receipt thereof in a
special fund designated as the “Revenue Fund” which Trustee shall establish, maintain and
hold in trust; except as otherwise provided in Section 5.02 hereof, all moneys received by
Trustee and required to be deposited in the Note Fund shall be promptly deposited in the
Note Fund and all moneys received by Trustee and required to be deposited in the Redemption
Account shall be promptly deposited in the Redemption Account, which Trustee shall
establish, maintain and hold in trust. All Note Payments and other amounts deposited with
Trustee shall be held, disbursed, allocated and applied by Trustee only as provided in this
Indenture. All moneys held by Tender Agent for the payment of the principal or purchase
price of, premium, if any, and interest on the Notes, shall be held by Tender Agent in trust
for the payment of such Notes.



     Section 5.02. Note Payments and Allocation.




     (a) On or before each Note Payment Date, until the principal of, premium, if any, and
interest on the Notes shall have been fully paid or provision for such payment shall have
been made as provided in this Indenture, Borrower covenants and agrees to pay to Trustee as
a Note Payment, a sum equal to the amount payable on such Note Payment Date as principal of,
and premium, if any, and interest on the Notes as provided in this Indenture. The Note
Payments made pursuant to this subsection shall at all times be sufficient to pay the total
amount of interest and principal (whether at maturity or upon redemption or acceleration)
and premium, if any, becoming due and payable on the Notes on each Note Payment Date,
provided that any amount held by Trustee in the Revenue Fund on the due date for a Note
Payment pursuant to the immediately preceding sentence shall be credited against the Note
Payment due on such date to the extent available for such purpose under the terms of this
Indenture; and provided further that, subject to the provisions of this subsection, if at
any time the amounts held by Trustee in the Revenue Fund are sufficient to pay all of the
principal of and interest and premium, if any, on the Notes as such payments become due,
Borrower shall be relieved of any obligation to make any further Note Payments under the
provisions of this subsection. Notwithstanding the foregoing, if on any date the amount
held by Trustee in the Revenue Fund is insufficient to make any required payments of
principal of (whether at maturity or upon redemption or acceleration) and interest and
premium, if any, on the Notes as such payments become due, Borrower, immediately upon
receipt of notice of such deficiency from Trustee, shall forthwith pay such deficiency as a
Note Payment hereunder.




     (b) To the extent Trustee has on deposit a Note Payment from Borrower pursuant to
subsection (a) of this Section after any payment obligation hereunder has been satisfied by
a draw under the Letter of Credit, Trustee shall promptly use such Note Payment to reimburse
Credit Issuer for such drawing or, if Credit Issuer has been reimbursed directly by
Borrower, such funds shall be returned to Borrower. Upon Trustee’s receipt of written
notice from Credit Issuer that Borrower will begin to make payments directly to Credit
Issuer pursuant to the Reimbursement Agreement sufficient to reimburse Credit Issuer for
draws on the Letter of Credit, Borrower shall no longer be required to make such portion of
Note Payments directly to Trustee pursuant to the terms hereof.



26









 






     (c) Note Payments received by Trustee from Borrower shall be deposited by Trustee into
the following respective accounts (each of which Trustee shall establish and maintain within
the Revenue Fund), in the following amounts, in the following order of priority, and the
requirements of each such account (including the making up of any deficiencies in any such
account resulting from lack of funds sufficient to make any earlier required deposit) at the
time of deposit shall be satisfied before any transfer is made to any account subsequent in
priority, and provided, that no moneys representing drawings under the Letter of Credit
shall be transferred into the Interest Account, the Principal Account or the Redemption
Account of the Revenue Fund:




     FIRST, to the Interest Account, the amount paid by Borrower and designated as or
attributable to interest on the Notes in the most recent Note Payment, so that the aggregate
of such amounts will, on the next Interest Payment Date, equal the amount of interest due on
the Notes on such Interest Payment Date.




     SECOND, to the Principal Account, the amount paid by Borrower and designated as or
attributable to principal of the Notes in the most recent Note Payment, so that the
aggregate of such amounts will, on the next succeeding principal payment date, equal the
amount of principal due (whether at maturity or by acceleration) on such principal payment
date.




     THIRD, to the Redemption Account, the aggregate amount of principal and premium, if
any, next coming due by redemption permitted (as directed in writing by Borrower or as
provided in the last sentence of Section 4.01(b)) or required under Article IV hereof, or
any portion thereof paid by Borrower.



     Section 5.03. Priority of Moneys in Revenue Fund; Letter of Credit Account.




     (a) Funds for the payment of the principal or redemption price of and interest on the
Notes shall be derived from the following sources in the order of priority indicated below;
provided, however, that except as otherwise specifically provided herein amounts in the
respective accounts within the Revenue Fund shall be used to pay the principal or redemption
price of and interest on the Notes held by Registered Owners other than Borrower prior to
the payment of the principal and interest on the Notes held by Borrower; and provided,
further, that if principal or redemption price (or any portion thereof) of and interest on
the Notes is paid with moneys described in subparagraph (i) of this Section 5.03(a), any
other moneys on deposit in the respective accounts in the Revenue Fund shall be applied to
immediately reimburse Credit Issuer by wire transfer in the amount of any such drawings:




     (i) moneys paid into the Letter of Credit Account of the Revenue Fund
representing the proceeds of drawings by Trustee under the Letter of Credit;




     (ii) moneys paid into the Interest Account, if any, representing accrued
interest received at the initial sale of the Notes and proceeds from the investment
thereof which shall be applied to the payment of interest on the Notes;



27









 






     (iii) moneys paid into the Revenue Fund pursuant to Section 10.01(b) hereof and
proceeds from the investment thereof, which constitute Available Moneys;




     (iv) moneys deposited into the Redemption Account pursuant to Section 3.02(c)
hereof and proceeds from the investment thereof;




     (v) any other moneys (not derived from drawings under the Letter of Credit)
paid into the Revenue Fund and proceeds from the investment thereof, which
constitute Available Moneys; and




     (vi) any other moneys paid into the Revenue Fund and proceeds from the
investment thereof, which are not Available Moneys.




     (b) Trustee shall create within the Revenue Fund a separate account called the “Letter
of Credit Account,” which account shall be an Eligible Account, and all moneys drawn under
the Letter of Credit shall be deposited and disbursed either in the Letter of Credit Account
or the Liquidity Account established pursuant to Section 8.10 hereof. None of Borrower, any
Related Party or Trustee shall have any legal, equitable or beneficial right, title or
interest in the Letter of Credit Account or the Liquidity Account. The Letter of Credit
Account and the Liquidity Account shall be established and maintained by Trustee and Tender
Agent, respectively, and held in trust apart from all other moneys and securities held under
this Indenture or otherwise, and over which Trustee and Tender Agent, respectively, shall
have the exclusive and sole right of withdrawal for the exclusive benefit of the Registered
Owners of the Notes with respect to which each drawing is made.




     (c) Trustee shall draw moneys under the Letter of Credit in accordance with the terms
thereof in amounts necessary to make full and timely payments of principal of, premium, if
any, and interest on the Notes, other than Notes owned by or for the account of Borrower
(including Borrower Notes), which amounts on such Notes owned by or for the account of
Borrower shall not be paid from moneys drawn under the Letter of Credit but shall be deemed
to be paid by Borrower, when due, whether at maturity, redemption (including optional
redemptions scheduled pursuant to the Reimbursement Agreement), acceleration, an Interest
Payment Date or otherwise. In addition, Trustee shall draw moneys under the Letter of
Credit in accordance with the terms thereof to the extent necessary to make full and timely
payments required to be made pursuant to, and in accordance with, Article VIII hereof to pay
the purchase price of Borrower Notes. Trustee shall notify Borrower of any proposed drawing
on the Letter of Credit (other than with respect to scheduled payments of principal and
interest) as and when it notifies Credit Issuer.




     (d) If on the Fixed Interest Rate Date there shall have been delivered to Trustee an
Alternate Credit Facility or if at any time there shall have been delivered to Trustee an
Alternate Letter of Credit, then Trustee shall accept such Alternate Credit Facility or
Alternate Letter of Credit, as applicable, and promptly surrender the previously held Letter
of Credit to the issuing bank for cancellation, and shall promptly



28









 







take all actions requested by the issuing bank to convey to such bank or otherwise
relinquish all of its right, title and interest in any security held jointly by the issuing
bank and Trustee. If at any time there shall cease to be any Notes Outstanding hereunder,
Trustee shall promptly surrender the Letter of Credit to Credit Issuer for cancellation.
Trustee shall comply with the procedures set forth in the Letter of Credit relating to the
surrender thereof.



     Section 5.04. Letter of Credit. Borrower shall at all times throughout the term of this
Indenture (but subject to Sections 2.04 and 5.07 hereof) maintain or cause to be maintained the
Letter of Credit with respect to the Notes. The Letter of Credit shall be an obligation of Credit
Issuer to pay to Trustee, against presentation of sight drafts and certificates required by Credit
Issuer, up to (a) an amount equal to the aggregate principal amount of the Notes then Outstanding
as necessary to pay the principal of such Notes, whether at maturity, redemption, acceleration or
otherwise or upon the purchase of such Notes upon the optional tender of the Notes pursuant to
Section 4.06 hereof and on the Mandatory Tender Date, and (b) an amount equal to 60 days (or such
other number of days as may be required to obtain a rating on the Notes) of interest on the Notes
calculated at an interest rate of 15% per annum on the basis of a 360-day year for the number of
days actually elapsed while the Notes bear interest at a Weekly Interest Rate and an amount equal
to 180 days (or such other number of days as may be required to obtain a rating on the Notes if the
Notes are then rated) of interest on the Notes calculated at the actual interest rate or rates on
the Notes on the basis of a 360-day year of twelve 30-day months while the Notes bear interest at
the Fixed Interest Rate to pay interest on the Notes when due.




     (a) On any Business Day, Borrower may, at its option, provide or cause to be provided
to Trustee an Alternate Letter of Credit and Borrower shall, in any event, cause to be
delivered to Trustee an extension of the Expiration Date of the Letter of Credit or an
Alternate Letter of Credit at least (a) 45 days before the Expiration Date of the
then-existing Letter of Credit while the Notes bear interest at the Weekly Interest Rate or
(b) 45 days before the Expiration Date of the then existing Letter of Credit while the Notes
bear interest at the Fixed Interest Rate. At least 35 days prior to the Letter of Credit
Substitution Date, Borrower shall provide Trustee, Credit Issuer, Tender Agent and
Remarketing Agent with a written notice of its intention to provide an Alternate Letter of
Credit pursuant to this Section. Such notice shall include the proposed Letter of Credit
Substitution Date, which shall be an Interest Payment Date, and identify the provider of the
Alternate Letter of Credit. An Alternate Letter of Credit shall be an irrevocable
direct-pay letter of credit or other irrevocable credit facility delivered to Trustee on or
prior to 11:00 a.m., New York time, on the Letter of Credit Substitution Date, issued by a
savings institution, commercial bank or other financial institution or entity, the terms of
which shall in all material respects be the same as the Letter of Credit. On or prior to
the date of the delivery of an Alternate Letter of Credit to Trustee, Borrower shall cause
to be furnished to Trustee (i) such opinions regarding the validity of the Alternate Letter
of Credit as any rating agency then rating the Notes may reasonably require, and (ii)
written evidence from Moody’s, if the Notes are then rated by Moody’s, and S&P, if the Notes
are then rated by S&P, to the effect that such rating agency has reviewed the proposed
Alternate Letter of Credit and that the substitution of the proposed Alternate Letter of
Credit will not, by itself, result in a reduction of its long-term rating of



29









 







the Notes below “A” if the Notes are rated by S&P or below “A2” if the Notes are rated
by Moody’s.




     (b) It is understood and agreed that with proper notification to Trustee and Borrower,
Credit Issuer can declare that a default has occurred under the Reimbursement Agreement with
Borrower and such default will cause a mandatory redemption of the Notes pursuant to Section
4.01(f) hereof.




     (c) Subject to the provisions of Section 5.03(d) hereof, Trustee shall hold and
maintain the Letter of Credit for the benefit of the Registered Owners until the Letter of
Credit expires in accordance with its terms. Trustee shall diligently observe all terms,
covenants and conditions of the Letter of Credit, including payment when due of any draws on
the Letter of Credit, and the provisions relating to the payment of draws on, and
reinstatement of amounts that may be drawn under, the Letter of Credit, and will not consent
to, agree to or permit any amendment or modification of the Letter of Credit which would
adversely affect the rights or security of the Registered Owners of the Notes. If at any
time during the term of the Letter of Credit, any successor Trustee shall be appointed and
qualified under this Indenture, the resigning or removed Trustee shall request that Credit
Issuer transfer the Letter of Credit to the successor Trustee in accordance with the
procedures for transfer specified in the Letter of Credit. If the resigning or removed
Trustee fails to make this request, the successor Trustee shall do so before accepting
appointment. Trustee shall send notice to Credit Issuer and Borrower of the expiration of
the Letter of Credit at least two months prior to the date of such expiration.



     At least 30 days prior to the Letter of Credit Substitution Date, Trustee shall send a written
notice to the Registered Owners relating to Borrower’s election to deliver an Alternate Credit
Facility or Alternate Letter of Credit to Trustee. Such notice shall (a) specify the proposed
Letter of Credit Substitution Date, (b) require the Registered Owners of all of the Outstanding
Notes to tender their Notes for purchase on the Mandatory Tender Date pursuant to Section 4.07
hereof, and (c) state that all Outstanding Notes not purchased on or before the Mandatory Tender
Date will be deemed to be purchased on the Mandatory Tender Date at a price equal to the principal
amount thereof, plus unpaid interest, if any, accrued to such date.



     Section 5.05. Investment of Moneys. Subject to the following sentence, all moneys in any of
the funds or accounts established pursuant to this Indenture shall be invested by Trustee as
directed in writing (which may be in the form of a facsimile transmission), such writing to specify
the particular investment to be made, by an Authorized Representative of Borrower in Qualified
Investments maturing not later than the date on which it is estimated that such moneys will be
required for the purposes specified in this Indenture; provided, however, that: (a) moneys on
deposit in the Letter of Credit Account and the Purchase Fund and any moneys held pursuant to
Section 4.07 hereof shall be held uninvested; (b) any moneys held in trust for the payment or
redemption of Notes pursuant to Article X hereof shall be invested as provided in Section 10.03
hereof; and (c) moneys described in clause (ii), (iii), (iv) or (v) of Section 5.03(a) hereof shall
be invested in Qualified Investments described in clause (d) of the definition thereof which mature
not later than the date on which such moneys will be required to pay the Notes or the interest
thereon. All moneys in any of the funds or accounts established pursuant to this Indenture,



30









 







subject to the limitations set forth in (a) through (c) of the first sentence above, shall be
invested by Trustee in Qualified Investments maturing not later than the date on which it is
estimated that such moneys will be required for the purposes specified in this Indenture.



     Qualified Investments may be purchased at such prices as may be directed by Borrower or its
agent. All Qualified Investments shall be acquired as directed by Borrower subject to limitations
as to maturities set forth in this Section, and such additional limitations or requirements
consistent with the foregoing as may be established by Request of Borrower. Notwithstanding any
other provision herein, in the absence of written investment instructions from Borrower directing
Trustee by 11:30 a.m., New York time, of the Business Day preceding the day when investments are to
be made, Trustee is directed to invest available funds not described in clauses (a), (b) or (c) of
the first paragraph of this Section in the Federated Treasury Obligations Fund #398. Trustee shall
not be liable for any losses, fees, taxes or other charges resulting from any investments,
reinvestments or liquidations of investment made pursuant to the provisions of this Indenture
except for its own gross negligence or willful misconduct; provided, however, the exculpatory
provisions provided in this sentence shall apply to Trustee only in its trustee capacity and not in
its capacity as investment provider.



     All interest, profits and other income received from the investment of moneys in any fund
established pursuant to this Indenture shall be deposited in the Revenue Fund, except that any such
interest, profits and other income received from the investment of any moneys held in trust for the
payment or redemption of Notes pursuant to Article X shall be applied as provided in Article X
hereof. Notwithstanding anything to the contrary contained in this paragraph, an amount of
interest received with respect to any Qualified Investment equal to the amount of accrued interest,
if any, paid as part of the purchase price of such Qualified Investment shall be credited to the
fund from which such accrued interest was paid.



     For the purpose of determining the amount in any fund, all Qualified Investments credited to
such fund shall be valued at the market value of such Qualified Investments.



     Trustee may act as principal or agent in the making or disposing of any investment. Trustee
may sell at the best price obtainable by it in Trustee’s sole discretion, or present for
redemption, any Qualified Investment so purchased whenever it shall be necessary to provide moneys
to meet any required payment, transfer, withdrawal or disbursement from the fund to which such
Qualified Investment is credited, and Trustee shall not be liable or responsible for any loss
resulting from such investment except for its own gross negligence or willful misconduct. For
investment purposes only, Trustee may commingle moneys held in the Interest Account and Principal
Account of the Revenue Fund.



     Section 5.06. Additional Duties of Trustee. While the Notes bear interest at the Weekly
Interest Rate, Trustee shall send to Borrower an invoice for the interest accrued on the Notes for
the current Interest Period which is to be paid hereunder as soon as such amount is available.
While the Notes bear interest at the Fixed Interest Rate, 20 days prior to each Interest Payment
Date, Trustee shall send to Borrower an invoice for the interest due on the Notes on the next
succeeding Interest Payment Date which is to be paid hereunder. Trustee shall send to Credit
Issuer a copy of each invoice sent to Borrower. If full payment of any such invoice is not
received by the date Borrower is required to make such payment hereunder, Trustee shall



31









 







promptly notify in writing Credit Issuer and Borrower of such nonpayment or underpayment by
Borrower. Trustee shall promptly give Credit Issuer written notice upon the failure of Borrower to
make any principal payment hereunder.



     Section 5.07. Alternate Credit Facility. If Borrower exercises its option to convert the
interest rate borne by the Notes from the Weekly Interest Rate to the Fixed Interest Rate pursuant
to the terms and provisions of this Indenture, Borrower may cause to be delivered to Trustee an
Alternate Credit Facility, effective as of the Fixed Interest Rate Date, in lieu of keeping the
Letter of Credit in place as required by Section 5.04 hereof.



     Such Alternate Credit Facility must meet the following conditions:




     (a) the terms of the Alternate Credit Facility must provide an unconditional obligation
of the issuer of the Alternate Credit Facility to pay all amounts with respect to the
principal of, premium, if any, and interest on the Notes when the same shall become due; and




     (b) the term of the Alternate Credit Facility must extend to the final maturity of the
Notes.



     On or prior to the date of the delivery of an Alternate Credit Facility to Trustee, Borrower
shall cause to be furnished to Trustee (i) such opinions regarding the validity of the Alternate
Credit Facility as any rating agency then rating the Notes may reasonably require, and (ii) written
evidence from Moody’s, if the Notes are then rated by Moody’s, and S&P, if the Notes are then rated
by S&P, to the effect that such rating agency has reviewed the proposed Alternate Credit Facility
and that the substitution of the proposed Alternate Credit Facility for the Letter of Credit will
not, by itself, result in a reduction of its long term rating of the Notes below “A” if the Notes
are rated by S&P or below “A2” if the Notes are rated by Moody’s.



ARTICLE VI




PARTICULAR REPRESENTATIONS, WARRANTIES AND COVENANTS




     Section 6.01. Punctual Payment. Borrower shall punctually pay or cause to be paid the
principal, premium, if any, and interest to become due in respect of all the Notes, in strict
conformity with the terms of the Notes and of this Indenture, according to the true intent and
meaning thereof.



     Section 6.02. Extension of Payment of Notes. Borrower shall not directly or indirectly extend
or assent to the extension of the maturity of any of the Notes or the time of payment of any claims
for interest by the purchase or funding of such Notes or claims for interest or by any other
arrangement and in case the maturity of any of the Notes or the time of payment of any such claims
for interest shall be extended, such Notes or claims for interest shall not be entitled, in case of
any default hereunder, to the benefits of this Indenture, except subject to the prior payment in
full of the principal of all of the Notes then outstanding and of all claims for interest thereon
which shall not have been so extended. Nothing in this Section shall be deemed to limit the right
of Borrower to issue notes for the purpose of refunding any Outstanding Notes, and such issuance
shall not be deemed to constitute an extension of maturity of Notes.



32









 





     Section 6.03. Encumbrances. Borrower shall not create, or permit the creation of, any pledge,
lien, charge or other encumbrance upon the Account Funds while any of the Notes are Outstanding,
except the pledge created by this Indenture and the Reimbursement Agreement. Subject to this
limitation, Borrower expressly reserves the right to enter into one or more other indentures for
any of its company purposes, and reserves the right to issue other obligations for such purposes.



     Section 6.04. Accounting Records and Reports. Trustee shall keep or cause to be kept proper
books of record and account in which complete and correct entries shall be made of all transactions
relating to the receipt, investment, disbursement, allocation and application of the Note Payments,
the proceeds of the Notes received by Trustee and all funds and accounts held hereunder. Such
records shall specify the account or fund to which each investment (or portion thereof) held by
Trustee is to be allocated and shall set forth, in the case of each Qualified Investment, (a) its
purchase price, (b) identifying information, including par amount, coupon rate, and payment dates,
(c) the amount received at maturity or its sale price, as the case may be, (d) the amounts and
dates of any payments made with respect thereto, and (e) the dates of acquisition and disposition
or maturity.



     Such records shall be open to inspection by any Registered Owner, Borrower and Credit Issuer
at any reasonable time during regular business hours on reasonable notice.



     Section 6.05. Other Covenants. Trustee shall promptly collect all amounts due from Borrower
hereunder, shall perform all duties imposed upon it hereunder and shall diligently enforce, and
take all steps, actions and proceedings reasonably necessary for the enforcement of all of the
obligations of Borrower.



     Section 6.06. Further Assurances. Borrower shall make, execute and deliver any and all such
further indentures, instruments and assurances as may be reasonably necessary or proper to carry
out the intention or to facilitate the performance of this Indenture and for the better assuring
and confirming unto the Registered Owners of the Notes of the rights and benefits provided in this
Indenture.



ARTICLE VII




EVENTS OF DEFAULT AND REMEDIES OF REGISTERED OWNERS




     Section 7.01. Events of Default; Acceleration; Waiver of Default. Each of the following
events shall constitute an “Event of Default” hereunder:




     (a) default in the due and punctual payment of the principal of, or premium (if any)
on, any Note when and as the same shall become due and payable, whether at maturity as
therein expressed, by proceedings for redemption, by declaration or otherwise;




     (b) default in the due and punctual payment of any installment of interest on any Note,
when and as such interest installment shall become due and payable and the continuation of
such failure for a period of five days after the due date for such payment;



33









 






     (c) failure to pay the purchase price of any Note tendered in accordance with the
provisions of Sections 4.06 and 4.07 hereof and the continuation of such failure for a
period of five days after such purchase price has become due and payable;




     (d) failure by Borrower to fully and timely observe and perform its obligations under
Section 5.04 hereof;




     (e) failure by Borrower to perform or observe any of the other covenants, agreements or
conditions on its part in this Indenture or in the Notes contained, and the continuation of
such failure for a period of 30 days after written notice thereof, specifying such default
and requiring the same to be remedied, shall have been given (i) to Credit Issuer and
Borrower by Trustee, (ii) to Credit Issuer, Borrower and Trustee by the Registered Owners of
not less than 25% in aggregate principal amount of the Notes at the time Outstanding or
(iii) to Borrower and Trustee by Credit Issuer; provided, however, that if the failure
stated in such notice cannot be corrected within such 30-day period, an extension of such
time will not be unreasonably withheld if corrective action is instituted by Borrower within
the applicable period and diligently pursued until the default is corrected; or




     (f) the occurrence and continuance of an Event of Default under the Reimbursement
Agreement.



     During the continuance of an Event of Default, unless the principal of all the Notes shall
have already become due and payable, Trustee shall, at the direction of Credit Issuer, or upon the
occurrence of an Event of Default described in (a), (b), (c) or (d) above, Trustee shall by notice
in writing to Tender Agent, Remarketing Agent, Borrower, Credit Issuer and the Registered Owners,
declare the principal of all the Notes then Outstanding, and the interest accrued thereon, to be
due and payable immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. Upon any such declaration Trustee shall immediately draw upon any then existing
Letter of Credit in accordance with the terms thereof and apply the amount so drawn to pay the
principal of and interest on the Notes (other than Borrower Notes) so declared to be due and
payable. Interest on the Notes shall cease to accrue upon the declaration of acceleration.
Trustee shall notify the Registered Owners of the date of acceleration and the cessation of accrual
of interest on the Notes in the same manner as for a notice of redemption.



     The preceding paragraph, however, is subject to the condition that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as hereinafter
provided, and before the Letter of Credit has been drawn upon in accordance with its terms and
honored, there shall have been deposited with Trustee a sum sufficient to pay all the principal of
the Notes matured prior to such declaration and all matured installments of interest (if any) upon
all the Notes, with interest on such overdue installments of principal as provided in this
Indenture, and the reasonable expenses of Trustee, and any and all other defaults known to Trustee
(other than in the payment of principal of and interest on the Notes due and payable solely by
reason of such declaration) shall have been made good or cured to the satisfaction of Trustee or
provision deemed by Trustee to be adequate shall have been made therefor, then, and



34









 







in every such case, the Registered Owners of at least a majority in aggregate principal amount
of the Notes then Outstanding, by written notice to Borrower and to Trustee, may, on behalf of the
Registered Owners of all the Notes, rescind and annul such declaration and its consequences and
waive such default; but no such rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair or exhaust any right or power as a consequence thereof.



     Section 7.02. Institution of Legal Proceedings by Trustee. Upon the occurrence of an Event of
Default, subject to the satisfaction of the conditions of Section 7.11 hereof, Trustee in its
discretion may, and upon the written request of Credit Issuer or the Registered Owners of a
majority in principal amount of the Notes then Outstanding and upon being indemnified to its
satisfaction therefor shall, proceed to protect or enforce its rights or the rights of the
Registered Owners of Notes under this Indenture by a suit in equity or action at law, either for
the specific performance of any covenant or agreement contained herein or therein, or in aid of the
execution of any power herein or therein granted, or by mandamus or other appropriate proceeding
for the enforcement of any other legal or equitable remedy as Trustee shall deem most effectual in
support of any of its rights or duties hereunder.



     Section 7.03. Application of Account Funds and Other Funds After Default. If an Event of
Default shall occur and be continuing, all Account Funds and any other funds then held or
thereafter received by Trustee under any of the provisions of this Indenture (subject to
Sections 5.05 and 11.10 hereof) shall be applied by Trustee as follows and in the following order:




     (a) to the payment of any reasonable expenses necessary in the opinion of Trustee to
protect the interests of the Registered Owners of the Notes and payment of reasonable fees
and expenses of Trustee (including reasonable fees and disbursements of its counsel)
incurred in and about the performance of its powers and duties under this Indenture;
provided, however, that moneys in the Letter of Credit Account of the Revenue Fund and the
Purchase Fund shall not be used for the payment of any such expenses;




     (b) to the payment of the principal of and interest then due on the Notes (upon
presentation of the Notes to be paid, and stamping thereon of the payment if only partially
paid, or surrender thereof if fully paid) subject to the provisions of this Indenture
(including Section 6.02 hereof), as follows:




     (i) Unless the principal of all of the Notes shall have become or have been
declared due and payable,




     FIRST, to the payment to the persons entitled thereto of all
installments of interest then due in the order of the maturity of such
installments, and, if the amount available shall not be sufficient to pay in
full any installment or installments maturing on the same date, then to the
payment thereof ratably, according to the amounts due thereon, to the
persons entitled thereto, without any discrimination or preference; and



35









 






     SECOND, to the payment to the persons entitled thereto of the unpaid
principal of any Notes which shall have become due, whether at maturity or
by call for redemption, with interest on the overdue principal at the rate
borne by the respective Notes, and, if the amount available shall not be
sufficient to pay in full all the Notes, together with such interest, then
to the payment thereof ratably, according to the amounts of principal due on
such date to the persons entitled thereto, without any discrimination or
preference.




     (ii) If the principal of all of the Notes shall have become or have been
declared due and payable, to the payment of the principal and interest then due and
unpaid upon the Notes, with interest on the overdue principal at the rate borne by
the Notes, and, if the amount available shall not be sufficient to pay in full the
whole amount so due and unpaid, then to the payment thereof ratably, without
preference or priority of principal over interest, or of interest over principal, or
of any installment of interest over any other installment of interest, or of any
Note over any other Note, according to the amounts due respectively for principal
and interest, to the persons entitled thereto without any discrimination or
preference; provided, however, that neither moneys derived from drawings under the
Letter of Credit, Available Moneys, moneys being aged to become Available Moneys,
nor the proceeds from remarketing of the Notes shall be used to pay any of the items
listed in clause (a) of this Section; and provided, further, that moneys held in the
Purchase Fund shall only be used to pay the purchase price of the Notes.




     (c) To the payment of Credit Issuer of any amounts due and owing under the
Reimbursement Agreement and the payment of the remainder, if any, to Borrower.



     Section 7.04. Trustee to Represent Registered Owners. Trustee is hereby irrevocably appointed
(and the successive respective Registered Owners of the Notes, by taking and holding the same,
shall be conclusively deemed to have so appointed Trustee) as trustee and true and lawful
attorney-in-fact of the Registered Owners of the Notes for the purpose of exercising and
prosecuting on their behalf such rights and remedies as may be available to such Registered Owners
under the provisions of the Notes, this Indenture and applicable provisions of any other law. Upon
the occurrence and continuance of an Event of Default or other occasion giving rise to a right in
Trustee to represent the Registered Owners, Trustee in its discretion may, and upon the written
request of the Registered Owners of not less than 25% in aggregate principal amount of the Notes
then Outstanding, and upon being indemnified to its satisfaction therefor (except any actions
required to be taken by Section 7.03 hereof, in which event no indemnification shall be required),
shall, proceed to protect or enforce its rights or the rights of such Registered Owners by such
appropriate action, suit, mandamus or other proceedings as it shall deem most effectual to protect
and enforce any such right, at law or in equity, either for the specific performance of any
covenant or agreement contained herein, or in aid of the execution of any power herein granted, or
for the enforcement of any other appropriate legal or equitable right or remedy vested in Trustee
or in such Registered Owners under this Indenture or any other law; and upon instituting such
proceeding, Trustee shall be entitled, as a matter of right, to the appointment of a receiver of
the Account Funds and other assets pledged under this Indenture, pending such proceedings. All
rights of action under this Indenture or the Notes or otherwise



36









 







may be prosecuted and enforced by Trustee without the possession of any of the Notes or the
production thereof in any proceeding relating thereto, and any such suit, action or proceeding
instituted by Trustee shall be brought in the name of Trustee for the benefit and protection of all
the Registered Owners of such Notes, subject to the provisions of this Indenture (including
Section 6.02 hereof).



     Section 7.05. Registered Owners’ Direction of Proceedings. Anything in this Indenture to the
contrary notwithstanding, the Registered Owners of a majority in aggregate principal amount of the
Notes then Outstanding shall have the right, by an instrument or concurrent instruments in writing
executed and delivered to Trustee, to direct the method of conducting all remedial proceedings
taken by Trustee hereunder, provided that such direction shall not be otherwise than in accordance
with law and the provisions of this Indenture, and that Trustee shall have the right to decline to
follow any such direction which in the opinion of Trustee would be unjustly prejudicial to
Registered Owners not parties to such direction or for which it has not been provided adequate
indemnity to its satisfaction.



     Section 7.06. Limitation on Registered Owners’ Right to Sue. No Registered Owner of any Note
shall have the right to institute any suit, action or proceeding at law or in equity, for the
protection or enforcement of any right or remedy under this Indenture or any other applicable law
with respect to such Note, unless (a) such Registered Owner shall have given to Trustee written
notice of the occurrence of an Event of Default; (b) the Registered Owners of not less than 25% in
aggregate principal amount of the Notes then Outstanding shall have made written request upon
Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding
in its own name; (c) such Registered Owner or said Registered Owners shall have tendered to Trustee
indemnity reasonable to it against the costs, expenses and liabilities to be incurred in compliance
with such request; and (d) Trustee shall have refused or omitted to comply with such request for a
period of 60 days after such written request shall have been received by, and said tender of
indemnity shall have been made to, Trustee.



     Such notification, request, tender of indemnity and refusal or omission are hereby declared,
in every case, to be conditions precedent to the exercise by any Registered Owner of Notes of any
remedy hereunder or under law; it being understood and intended that no one or more Registered
Owners of Notes shall have any right in any manner whatever by his or their action to affect,
disturb or prejudice the security of this Indenture or the rights of any other Registered Owners of
Notes, or to enforce any right under this Indenture or other applicable law with respect to the
Notes, except in the manner herein provided, and that all proceedings at law or in equity to
enforce any such right shall be instituted, had and maintained in the manner herein provided and
for the benefit and protection of all Registered Owners of the Outstanding Notes, subject to the
provisions of this Indenture (including Section 6.02 hereof).



     Section 7.07. Absolute Obligation of Borrower. Nothing in Section 7.06 hereof or in any other
provision of this Indenture, or in the Notes, contained shall affect or impair the obligation of
Borrower, which is absolute and unconditional, to pay the principal of and interest on the Notes to
the respective Registered Owners of the Notes at their respective dates of maturity, or upon
acceleration or call for redemption, as herein provided, or affect or impair the right of such
Registered Owners, which is also absolute and unconditional, to enforce such payment by virtue of
the contract embodied in the Notes.



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     Section 7.08. Termination of Proceedings. In case any proceedings taken by Trustee or any one
or more Registered Owners on account of any Event of Default shall have been discontinued or
abandoned for any reason or shall have been determined adversely to Trustee or the Registered
Owners, then in every such case Borrower, Credit Issuer, Trustee and the Registered Owners, subject
to any determination in such proceedings, shall be restored to their former positions and rights
hereunder, severally and respectively, and all rights, remedies, powers and duties of Borrower,
Credit Issuer, Trustee and the Registered Owners shall continue as though no such proceedings had
been taken. Trustee shall deliver copies of all proceedings taken by Trustee under this Indenture
to Tender Agent.



     Section 7.09. Remedies Not Exclusive. No remedy herein conferred upon or reserved to Trustee,
Credit Issuer or to the Registered Owners of the Notes is intended to be exclusive of any other
remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be
cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law
or in equity or otherwise.



     Section 7.10. No Waiver of Default. In the event any agreement or covenant contained in this
Indenture should be breached by Borrower and thereafter waived by Trustee or the Registered Owners
of the Notes, such waiver shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. No delay or omission of Trustee or of any Registered
Owner of the Notes to exercise any right or power arising upon the occurrence of any default shall
impair any such right or power or shall be construed to be a waiver of any such default or an
acquiescence therein; and every power and remedy given by this Indenture to Trustee or to the
Registered Owners of the Notes may be exercised from time to time and as often as may be deemed
expedient.



     Section 7.11. Consent to Defaults. Notwithstanding any other provisions of this Indenture, so
long as the Letter of Credit is in full force and effect and Credit Issuer has not wrongfully
dishonored and is not continuing wrongfully to dishonor drawings under the Letter of Credit and all
payments of principal or purchase price of and interest on the Notes have been timely made, no
Event of Default shall be declared (except in a case resulting from the failure of Borrower to pay
fees or indemnification amounts to Trustee), nor any remedies exercised with respect to any such
Events of Default by Trustee or by the Registered Owners and no Event of Default shall be waived by
Trustee or the Registered Owners to the extent they may otherwise be permitted hereunder, except at
the prior written direction of Credit Issuer. Unless an Alternate Credit Facility has been
provided, no Event of Default can be waived, in any circumstance, unless the Letter of Credit has
been fully reinstated and is in full force and effect as evidenced in writing by Credit Issuer to
Trustee.



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ARTICLE VIII




TRUSTEE, THE REMARKETING

AGENT AND TENDER AGENT




     Section 8.01. Duties, Immunities and Liabilities of Trustee.




     (a) Trustee shall, prior to an Event of Default, and after the curing of all Events of
Default which may have occurred, perform such duties and only such duties as are
specifically set forth in this Indenture. Trustee shall, during the existence of any Event
of Default (which has not been cured), 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 its own affairs.




     (b) Trustee may at any time and for any reason be removed by an instrument or
concurrent instruments in writing appointing a successor Trustee filed with Trustee so
removed and Borrower and executed by the Registered Owners of a majority in aggregate
principal amount of the Notes Outstanding. Trustee may also be removed at any time for
acting or proceeding in violation of, or for failing to act or proceed in accordance with,
any provisions of this Indenture with respect to the duties and obligations of Trustee, by
Borrower (so long as no Event of Default has occurred and is continuing) or by any court of
competent jurisdiction upon the application of Credit Issuer or by the Registered Owners of
a majority in aggregate principal amount of the Notes Outstanding. Notwithstanding the
foregoing, Trustee may not be removed until a successor Trustee acceptable to Credit Issuer
has been appointed and has assumed the duties and responsibilities of successor Trustee
under this Indenture.




     (c) Trustee may at any time resign by giving written notice of such resignation to
Borrower and Credit Issuer and by giving the Registered Owners notice of such resignation by
mail at the addresses shown on the registration books maintained by Note Registrar. Upon
receiving such notice of resignation, Borrower shall promptly appoint, with the consent of
Credit Issuer, a successor Trustee by an instrument in writing. Trustee shall not be
relieved of its duties until such successor Trustee has accepted its appointment.




     (d) Any removal or resignation of Trustee and appointment of a successor Trustee
acceptable to Credit Issuer shall become effective only upon acceptance of appointment by
the successor Trustee. If no successor Trustee shall have been appointed and have accepted
appointment within 45 days of giving notice of removal or notice of resignation as
aforesaid, the resigning Trustee or any Registered Owner (on behalf of himself and all other
Registered Owners) may petition at the expense of Borrower any court of competent
jurisdiction for the appointment of a successor Trustee, and such court may thereupon, after
such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor
Trustee appointed under this Indenture, shall signify its acceptance of such appointment by
executing and delivering to Borrower, Credit Issuer and to its predecessor Trustee a written
acceptance thereof and a written instrument by



39









 







the successor Trustee indemnifying the predecessor Trustee for all costs or claims
arising after the acceptance of appointment hereunder relating to such successor Trustee’s
performance of its duties under this Indenture, and thereupon and after the payment by
Borrower of all unpaid fees and expenses (including legal fees and expenses) of the
predecessor Trustee such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties
and obligations of such predecessor Trustee, with like effect as if originally named Trustee
herein; but, nevertheless at the Request of Borrower or the request of the successor
Trustee, such predecessor Trustee shall execute and deliver any and all instruments of
conveyance or further assurance and do such other things as may reasonably be required for
more fully and certainly vesting in and confirming to such successor Trustee all the right,
title and interest of such predecessor Trustee in and to any property held by it under this
Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any
money or other property subject to the trusts and conditions herein set forth. Upon request
of the successor Trustee, Borrower shall execute and deliver any and all instruments as may
be reasonably required for more fully and certainly vesting in and confirming to such
successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and
obligations. Upon acceptance of appointment by a successor Trustee as provided in this
subsection, Borrower shall mail a notice of the succession of such Trustee to the trusts
hereunder to each rating agency which is then rating the Notes, to the Registered Owners at
the addresses shown on the registration books maintained by Note Registrar and to Credit
Issuer. If Borrower fails to mail such notice within 15 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such notice to be
mailed at the expense of Borrower.




     (e) Any Trustee appointed under the provisions of this Section in succession to Trustee
shall be a trust company or bank having the powers of a trust company, having a combined
capital and surplus of at least $50,000,000, and subject to supervision or examination by
federal or state authority. If such bank or trust company publishes a report of condition
at least annually, pursuant to law or to the requirements of any supervising or examining
authority above referred to, then for the purpose of this subsection the combined capital
and surplus of such bank or trust company shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In case at any
time Trustee shall cease to be eligible in accordance with the provisions of this
subsection, Trustee shall resign immediately in the manner and with the effect specified in
this Section.



     Section 8.02. Merger or Consolidation. Any company into which Trustee may be merged or
converted or with which it may be consolidated or any company resulting from any merger, conversion
or consolidation to which it shall be a party or any company to which Trustee may sell or transfer
all or substantially all of its corporate trust business, provided such company shall be eligible
under Section 8.01(e) hereof, shall be the successor to such Trustee without the execution or
filing of any paper or any further act, anything herein to the contrary notwithstanding.



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     Section 8.03. Liability of Trustee.




     (a) The recitals of facts herein and in the Notes contained shall be taken as
statements of Borrower, and Trustee shall assume no responsibility for the correctness of
the same, or make any representations as to the validity or sufficiency of this Indenture or
of the Notes. In addition, Trustee shall assume no responsibility with respect to this
Indenture or Notes other than in connection with the duties or obligations assigned to or
imposed upon Trustee herein or in the Notes. Trustee shall, however, be responsible for its
representations contained in its certificate of authentication on the Notes. Trustee shall
not be liable in connection with the performance of its duties hereunder, except for its own
gross negligence or willful misconduct. Trustee may become the Registered Owner of Notes
with the same rights it would have if it were not Trustee and, to the extent permitted by
law, may act as depositary for and permit any of its officers or directors to act as a
member of, or in any other capacity with respect to, any committee formed to protect the
rights of Registered Owners, whether or not such committee shall represent the Registered
Owners of a majority in principal amount of the Notes then Outstanding.




     Trustee may execute any of the trusts or powers set forth herein and perform the duties
required of it hereunder by or through attorneys, agents, or receivers, and shall be
entitled to the advice of counsel of its selection concerning all matters of trusts and its
duties herein.




     (b) Trustee shall not be liable for any error of judgment made in good faith by a
responsible officer, unless it shall be proved that the actions taken or omitted by Trustee
constitute willful misconduct or that Trustee was grossly negligent in ascertaining the
pertinent facts.




     (c) 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 Registered Owners of not less
than a majority in aggregate principal amount of the Notes at the time Outstanding relating
to the time, method and place of conducting any proceeding for any remedy available to
Trustee or exercising any trust or power conferred upon Trustee under this Indenture.




     (d) Trustee shall be under no obligation to exercise any of the rights or powers vested
in it by this Indenture at the request, order or direction of any of the Registered Owners
pursuant to the provisions of this Indenture unless such Registered Owners shall have
offered to Trustee satisfactory security or indemnity reasonably satisfactory to it against
the costs, expenses and liabilities which may be incurred therein or thereby; provided,
however, that Trustee shall not be entitled to any security or indemnity with respect to its
obligation to draw under the Letter of Credit to pay the principal or purchase price of or
interest on the Notes.




     (e) Trustee shall not be liable for any action taken by it in good faith and believed
by it to be authorized or within the discretion or rights or powers conferred upon it by
this Indenture except for its own gross negligence or willful misconduct.



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     (f) Trustee shall not be deemed to have knowledge of any default or Event of Default
hereunder unless and until it shall have actual knowledge thereof, or shall have received
written notice thereof at its designated corporate trust office. Except as otherwise
expressly provided herein, Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, conditions, covenants or agreements herein or
of any of the documents executed in connection with the Notes or as to the existence of a
default or Event of Default thereunder. Trustee shall not be responsible for the validity
or effectiveness of any collateral given to or held by it.




     (g) No provision of this Indenture shall require 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 its rights or powers. Trustee shall, however, in any case
make drawings under the Letter of Credit, pay principal or purchase price of or interest on
the Notes as it becomes due and accelerate the Notes as required by this Indenture,
notwithstanding anything to the contrary herein.




     (h) The rights, privileges, protections, immunities and benefits given to Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.




     (i) Trustee may request that Borrower deliver an officer’s certificate of Borrower
executed on its behalf by an Authorized Representative of Borrower setting forth the names
of individuals and/or titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which officer’s certificate may be signed by any person
authorized to sign an officer’s certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.



     Section 8.04. Right of Trustee to Rely on Documents. Trustee shall be protected in acting
upon any notice, resolution, request, consent, order, certificate, report, opinion, 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. Trustee may consult with counsel of its selection, who may be counsel of or to
Borrower, with regard to legal questions, and the opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken or suffered by it hereunder in
good faith and in accordance therewith.



     Trustee shall not be bound to recognize any person as the Registered Owner of a Note unless
and until such Note is submitted for inspection, if required, and its title thereto is
satisfactorily established if disputed.



     Whenever in the administration of the trusts imposed upon it by this Indenture Trustee shall
deem it necessary or desirable that a factual matter be proved or established prior to taking or
suffering any action hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established by a Certificate
of Borrower, and such Certificate shall be full warrant to Trustee for any action taken or suffered
in good faith under the provisions of this Indenture in reliance upon such Certificate,



42









 







but in its discretion Trustee may, in lieu thereof, accept other evidence of such matter or
may require such additional evidence as it may deem reasonable.



     Section 8.05. Preservation and Inspection of Documents. All documents received by Trustee
under the provisions of this Indenture shall be retained in its possession and shall be subject at
all reasonable times to the inspection of Borrower, Credit Issuer and any Registered Owner and
their agents and representatives duly authorized in writing, at reasonable hours and under
reasonable conditions.



     Section 8.06. Compensation and Indemnification.




     (a) Borrower shall pay to Trustee and Tender Agent from time to time such compensation
as shall be agreed in writing between Borrower and Trustee for all services rendered under
this Indenture, and also all reasonable expenses, charges, legal and consulting fees and
other disbursements and those of its attorneys, agents and employees, incurred in and about
the performance of its powers and duties under this Indenture, and Trustee and Tender Agent
each shall have a lien therefor on any and all funds (except moneys on deposit in the
Purchase Fund and the Letter of Credit Account, Available Moneys, moneys being aged to
become Available Moneys and funds held for the payment of Notes or the interest thereon
which is past due or for which notice of redemption has been mailed) at any time held by it
under this Indenture which lien shall be prior and superior to the lien of the Registered
Owners of the Notes.




     (b) Borrower releases Trustee from, and covenants and agrees that Trustee shall not be
liable for, and covenants and agrees to indemnify and hold harmless Trustee and its
officers, employees and agents from and against any and all losses, claims, damages,
liabilities or expenses, of every conceivable kind, character and nature whatsoever arising
out of, resulting from, or in any way connected with (a) the Property, or the conditions,
occupancy, use, possession, conduct or management of, or work done in or about, or from the
planning, design, acquisition, installation or construction of, the Property or any part
thereof; (b) the issuance of any Notes or any certifications or representations made in
connection therewith by Borrower and the carrying out of any of the transactions
contemplated by the Notes or this Indenture; (c) Trustee’s acceptance or administration of
the trusts under this Indenture, or the exercise or performance of any of its powers or
duties under this Indenture; or (d) any untrue statement or alleged untrue statement of any
material fact or omission or alleged omission to state a material fact necessary to make the
statements made, in light of the circumstances under which they were made, not misleading,
in the official statement utilized by any underwriter in connection with the sale or
offering of any Notes; provided that in each case such release and indemnity shall not be
required for damages that result from the willful misconduct or gross negligence on the part
of the party seeking such indemnity. The indemnity required by this Section shall be only
to the extent that any loss sustained by Trustee exceeds the net proceeds Trustee receives
from any insurance carried by Borrower with respect to the loss sustained. Borrower further
covenants and agrees to pay or to reimburse Trustee and Tender Agent and their officers,
employees and agents for any and all costs, reasonable attorneys fees and expenses,
liabilities or expenses incurred in connection with investigating, defending against or
otherwise in connection with any



43









 







such losses, claims, damages, liabilities, expenses or actions, except to the extent
that the same arise out of the willful misconduct or gross negligence of the party claiming
such payment or reimbursement. The provisions of this Section shall survive the payment and
retirement of the Notes and the termination of this Indenture.



     Section 8.07. Notice to Rating Agency. Borrower and Trustee shall give written notice to each
rating agency then rating the Notes of each of the following: (a) a successor Trustee or Tender
Agent is appointed hereunder; (b) this Indenture, the Remarketing Agreement or the Letter of Credit
is amended or supplemented in any manner; (c) the Notes are converted to a Fixed Interest Rate
pursuant to Section 2.04 hereof or defeased pursuant to Section 10.01 hereof or accelerated
pursuant to Section 7.01 hereof or redeemed in whole pursuant to Section 4.01 hereof; or (d) the
expiration, substitution, termination or extension of the Letter of Credit. Trustee makes this
covenant as a matter of courtesy and accommodation only and shall not be liable to any Person for
any failure to comply therewith.



     Section 8.08. Qualifications of Remarketing Agent. Remarketing Agent shall be a member of the
National Association of Securities Dealers, Inc. or be a banking corporation or trust company,
having a capitalization of at least $10,000,000 and shall be authorized by law to perform all the
duties imposed upon it by this Indenture. Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture by giving at least 30 days’
notice to Borrower, Credit Issuer, Tender Agent, Trustee, S&P and Moody’s, to the extent each
rating agency is then rating the Notes. With the prior written consent of Credit Issuer, Borrower
may remove Remarketing Agent at any time by an instrument signed by Borrower and filed with
Remarketing Agent, Credit Issuer, Tender Agent and Trustee. Borrower, with the written consent and
approval of Credit Issuer, shall appoint a successor Remarketing Agent.



     Remarketing Agent shall designate to Trustee its principal office and signify its acceptance
of the duties and obligations imposed on it hereunder by a written instrument of acceptance
delivered to Borrower and Trustee and Tender Agent under which Remarketing Agent will agree to
perform the obligations of Remarketing Agent set forth in Section 8.09 hereof.



     The initial Remarketing Agent is Dougherty & Company LLC.



     Section 8.09. Remarketing of Notes.




     (a) Tender Agent shall immediately provide Remarketing Agent, Credit Issuer and Trustee
with telephonic notice, promptly confirmed by written notice by 11:00 a.m., New York time,
on the next succeeding Business Day of the receipt by Tender Agent of a tender notice from
any Registered Owner pursuant to Section 4.06 hereof or the receipt by Tender Agent of a
notice from Borrower of its election to substitute an Alternate Letter of Credit for the
then existing Letter of Credit and providing Remarketing Agent, Credit Issuer and Trustee
with the information contained in such notices. Upon receipt of such telephonic notice,
Remarketing Agent shall use its best efforts to remarket the Notes described in such notice,
any such remarketing to be made at a price equal to the principal amount thereof plus
accrued interest.



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     (b) Remarketing Agent shall (i) by 3:00 p.m., New York time, on the Business Day prior
to the Purchase Date, give facsimile or telephonic notice, promptly confirmed by a written
notice, to Trustee, Tender Agent, Borrower and Credit Issuer (A) directing Tender Agent to,
subject to Section 2.12 hereof, make available for pick up by 10:00 a.m., New York time, on
the Purchase Date, at the designated corporate trust office of Tender Agent any Notes for
which Remarketing Agent has arranged sales pursuant to this Section and (B) stating the
principal amount of Notes sold pursuant to subsection (a) of this Section, and (ii) deliver
or cause to be delivered to Tender Agent at or prior to 10:00 a.m., New York time, on the
Purchase Date the principal of and interest accrued to such Purchase Date on the Note or
Notes to be so purchased that have been remarketed by Remarketing Agent, in immediately
available funds. Upon receipt of amounts for the purchase of Notes from Remarketing Agent,
Tender Agent shall immediately give telephonic notice to Trustee, Borrower and Credit
Issuer, promptly confirmed in writing, of (A) the proceeds received from Remarketing Agent
to be applied to the purchase of the Notes tendered for purchase, and (B) the amount that
must be drawn under the Letter of Credit for Notes that have been tendered as to which
Tender Agent has not received the principal of and interest accrued thereon to the Purchase
Date from Remarketing Agent. None of the moneys so provided to Tender Agent for purchase of
Notes may be derived directly or indirectly from Borrower or any Related Party and therefore
the Notes may not be remarketed to any such entity or person. The notice by Remarketing
Agent shall specify the names, addresses and taxpayer identification numbers of the
purchasers of, and the principal amount and denominations of, any such Notes for which it
has found purchasers as of such date and the principal amount of any such Notes for which it
has not found purchasers as of such date. Subject to Section 2.12 hereof, Tender Agent
shall make available for pick up new Notes properly executed, registered in the name(s) and
issued in Authorized Denominations as may be specified in the notice by Remarketing Agent to
Tender Agent by 10:00 a.m., New York time, on the Purchase Date. Remarketing Agent and
Tender Agent shall hold all moneys available for the purchase of Notes in trust solely for
the benefit of the purchaser of the Notes until Notes purchased with such moneys shall have
been delivered to or for the account of such purchaser, and such moneys shall not be
commingled with any other moneys. Under no circumstances shall Tender Agent be obligated to
expend any of its own funds in connection with this Indenture.




     (c) On the date Notes are to be purchased pursuant to Section 8.10 hereof, Trustee
shall, prior to 12:00 noon, New York time, draw on the Letter of Credit in accordance with
the provisions thereof to the extent of the purchase price of the Notes for which Tender
Agent has not received proceeds from the remarketing of such Notes as evidenced by the
notice from Tender Agent to Trustee and shall immediately transfer or direct the proceeds of
such draw to Tender Agent to pay the purchase price of such Notes on the Purchase Date.
Borrower Notes shall be registered in the name of Borrower and held by Tender Agent in trust
until the Notes are remarketed.



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     Section 8.10. Creation of Purchase Fund; Purchase of Notes Delivered to Tender Agent.




     (a) There is hereby created and established with Tender Agent in a trust capacity a
separate fund to be designated as the “Purchase Fund” and there shall be created within the
Purchase Fund (i) a separate account called the “Remarketing Account”, which shall be an
Eligible Account, into which all moneys representing the proceeds of remarketing pursuant to
Section 8.09 hereof (which moneys shall be in a form immediately available on the Purchase
Date) shall be deposited and (ii) a separate account called the “Liquidity Account”, which
shall be an Eligible Account, into which the proceeds of drawings by Trustee under the
Letter of Credit shall be deposited. None of Borrower, any Related Party nor Trustee shall
have any legal, equitable or beneficial right, title or interest in the moneys held by
Remarketing Agent or by Tender Agent in the Purchase Fund or the Remarketing Account or
Liquidity Account therein. The Purchase Fund and each such Account shall be established and
maintained by Tender Agent and held in trust apart from all other moneys and securities held
under this Indenture or otherwise, and Tender Agent shall have the exclusive and sole right
of withdrawal for the exclusive benefit of the Persons tendering or purchasing Notes with
respect to which amounts were deposited into the Purchase Fund and the Accounts created
therein.




     On each day on which Notes have been tendered for purchase or are deemed to have been
tendered for purchase pursuant to this Indenture after paying or making provision for the
payment of the purchase price of such Notes as provided in this Indenture, Tender Agent
shall promptly remit to Credit Issuer any moneys, but not exceeding the amount drawn on the
Letter of Credit for such purchase, on deposit in the Liquidity Account not used to purchase
Notes.




     (b) Funds for the purchase of Notes at the principal amount thereof plus any unpaid
interest accrued to the Purchase Date shall be paid out of the Purchase Fund in the order of
priority indicated:




     (i) from the Remarketing Account, proceeds from the remarketing of Notes
pursuant to Section 8.09 hereof; and




     (ii) from the Liquidity Account, moneys representing proceeds of a drawing by
Trustee under the Letter of Credit.




     (c) In the event that Notes are not purchased pursuant to this Section, Trustee shall
pay the principal amount of Notes tendered pursuant to Section 4.06 hereof or Notes subject
to mandatory tender pursuant to Section 4.07 hereof with moneys on deposit in the Revenue
Fund pursuant to Section 5.02 hereof and cancel such Notes.




     (d) Tender Agent shall:




     (i) hold all Notes delivered to it pursuant to Sections 4.06, 4.07 or 8.11
hereof in trust solely for the benefit of the respective Registered Owners which
shall have so delivered such Notes until moneys representing the purchase



46









 






price for such Notes shall have been delivered to or for the account of or to
the order of such Registered Owners;




     (ii) hold all moneys delivered to it under this Section for the purchase of
Notes in trust solely for the benefit of the Person which shall have so delivered
such moneys until the Notes purchased with such moneys shall have been delivered to
or for the account of such Person;




     (iii) only make such payments called for under this Indenture from immediately
available funds transferred to Tender Agent for payment pursuant to this Indenture
which funds are on deposit in an appropriate account maintained by Tender Agent;




     (iv) under no circumstances be obligated to expend any of its own funds in
connection with this Indenture;




     (v) in acting with regard to the purchase of Notes under this Indenture be
acting as a conduit and shall not be purchasing Notes for its own account, and in
the absence of written notice from Borrower or Trustee, shall be entitled to assume
that any Note tendered to it, or deemed tendered to it for purchase, is entitled
under this Indenture to be so purchased; and




     (vi) notify Remarketing Agent by telephone, telegram or other form of
electronic communication of the contents of, and promptly deliver to Borrower,
Trustee, Remarketing Agent and Credit Issuer a copy of, each notice delivered to it
in accordance with Section 4.06 hereof and, immediately upon the delivery to it of
Notes in accordance with Section 4.06 hereof, give facsimile or telephonic notice to
Borrower, Trustee and Credit Issuer specifying the principal amount of the Notes so
delivered.



     Section 8.11. Delivery of Notes.




     (a) Notes purchased by Tender Agent with the moneys described in subsection (b)(i) of
Section 8.10 hereof shall be made available by Tender Agent to the new purchasers.




     (b) (i) Notes purchased with the moneys described in subsection (c) of Section 8.10
hereof shall be cancelled.




     (ii) Notes purchased by Tender Agent with moneys described in
subsection (b)(ii) of Section 8.10 hereof shall be held by Tender Agent in trust for
the benefit of Credit Issuer as Borrower Notes in the name of Borrower on the
registration books of DTC with respect to book-entry Notes.




     (c) Notes which have been delivered to Tender Agent and which thereafter have been sold
shall be delivered to such new owners as Remarketing Agent or Credit Issuer may designate to
Tender Agent, but only upon (i) written confirmation to Trustee by Credit Issuer that the
stated amount of the Letter of Credit has been reinstated with



47









 







respect to the principal of the Notes being so re-registered and delivered, together
with the portion of the Letter of Credit used to pay accrued interest for the purchase of
such Notes, (ii) written confirmation to Tender Agent by Trustee that the stated amount of
the Letter of Credit has been reinstated with respect to the principal of the Notes being so
re-registered and delivered together with the portion of the Letter of Credit used to pay
accrued interest for the purchase of such Notes and (iii) written notice to Tender Agent by
Trustee to release the Borrower Notes to such new owners.



     Borrower shall cooperate with Trustee and Tender Agent to cause the necessary arrangements to
be made and to be thereafter continued whereby funds from the sources specified herein will be made
available for the purchase of Notes presented at the designated corporate trust office of Tender
Agent and whereby Notes executed by Borrower and authenticated by Tender Agent shall be made
available to the extent necessary for delivery pursuant to this Section.



     Section 8.12. Delivery of Proceeds of Remarketing. The proceeds of the remarketing by
Remarketing Agent of any Notes delivered to Tender Agent, any Borrower Notes or any Notes delivered
to Remarketing Agent by any other Registered Owner, shall be turned over to Credit Issuer or such
other Registered Owner, as the case may be.



     Section 8.13. No Purchases or Sales After Default. Anything in this Indenture to the contrary
notwithstanding, there shall be no purchases or sales of Notes pursuant to this Article if there
shall have occurred and be continuing an Event of Default described in clauses (a) through (c) of
Section 7.01 hereof.



     Section 8.14. Qualifications of Tender Agent. Tender Agent shall be a bank or trust company
or another institution having the powers of a trust company, authorized to perform all duties
imposed upon it by this Indenture and the Remarketing Agreement, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by federal or state
authority. If such bank or trust company or other institution publishes a report of condition at
least annually, pursuant to law or to the requirements of any supervising or examining authority
above referred to, then for the purpose of this subsection the combined capital and surplus of such
bank or trust company or other institution shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. Tender Agent may at any time
resign and be discharged of the duties and obligations created by this Indenture by giving at least
60 days’ notice to Borrower, Remarketing Agent and Trustee. With the written consent of Credit
Issuer, Tender Agent may be removed at any time by Borrower, by filing an instrument, signed by
Borrower, filed with Tender Agent, Remarketing Agent and Trustee.



     The initial Tender Agent appointed under this Indenture is Manufacturers and Traders Trust
Company. Borrower, with the written consent and approval of Credit Issuer, shall appoint a
successor Tender Agent and such successor Tender Agent shall evidence its acceptance of such
appointment by executing and delivering to Credit Issuer and Borrower a written acceptance thereof.
In the event Borrower fails to appoint a successor Tender Agent prior to the effective date of the
removal or resignation of the current Tender Agent, the existing Tender Agent shall



48









 







remain in place until a successor Tender Agent is appointed. If a successor Tender Agent is
not appointed within 30 days as provided herein, Trustee shall be appointed as the successor Tender
Agent.



     Section 8.15. Paying Agent. Borrower, with the written approval of Credit Issuer, may appoint
and at all times have a Paying Agent in such cities as Borrower deems desirable, for the payment of
the principal of, and the interest (and premium, if any) on, the Notes. Borrower hereby appoints
Trustee as paying agent. Trustee shall not be responsible for the failure of Credit Issuer or any
other party to make funds available to Trustee.



     Section 8.16. Several Capacities. Anything in this Indenture to the contrary notwithstanding,
the same entity may serve hereunder as Trustee, Tender Agent, Note Registrar and Paying Agent and
in any other combination of such capacities, to the extent permitted by law.



ARTICLE IX




MODIFICATION OR AMENDMENT OF THIS INDENTURE




     Section 9.01. Amendments Permitted.




     (a) This Indenture and the rights and obligations of Borrower and of the Registered
Owners of the Notes and of Trustee may be modified or amended from time to time and at any
time by an indenture or indentures supplemental thereto, which Borrower and Trustee may
enter into with the written consent of Credit Issuer and the Registered Owners of a majority
in aggregate principal amount of all Notes then Outstanding, which consent Borrower and
Credit Issuer shall file with Trustee. No such modification or amendment shall (i) extend
the fixed maturity of any Note, reduce the amount of principal thereof, extend the time of
payment or change the method of computing the rate of interest thereon or extend the time of
payment of interest thereon, without the consent of the Registered Owner of each Note so
affected; (ii) reduce the aforesaid percentage of Notes the consent of the Registered Owners
of which is required to effect any such modification or amendment; or (iii) permit the
creation of any lien on the Account Funds and other assets pledged under this Indenture
prior to or on a parity with the lien created by this Indenture or deprive the Registered
Owners of the Notes of the lien created by this Indenture on such Account Funds and other
assets (except as expressly provided in this Indenture), without the consent of the
Registered Owners of all of the Notes then Outstanding, or (iv) adversely affect the
interests of Tender Agent without its prior written consent. It shall not be necessary for
the consent of the Registered Owners to approve the particular form of any Supplemental
Indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by Borrower and Trustee of any Supplemental Indenture pursuant
to this subsection (a), Trustee shall mail a copy of the Supplemental Indenture to Tender
Agent and mail a notice to be prepared by Borrower, setting forth in general terms the
substance of such Supplemental Indenture, to each rating agency then rating the Notes and
the Registered Owners of the Notes at the address shown on the registration books of Note



49









 







Registrar. However, any failure to give such notice, or any defect therein, shall not
in any way impair or affect the validity of any such Supplemental Indenture.




     (b) This Indenture and the rights and obligations of Borrower, Trustee and the
Registered Owners of the Notes may also be modified or amended from time to time and at any
time by an indenture or indentures supplemental hereto, which Borrower and Trustee may enter
into without the consent of any Registered Owners but with the written consent of Credit
Issuer, but only to the extent permitted by law including (without limitation) for any one
or more of the following purposes:




     (i) to add to the covenants and agreements of Borrower contained in this
Indenture other covenants and agreements thereafter to be observed, to pledge or
assign additional security for the Notes or to surrender any right or power herein
reserved to or conferred upon Borrower;




     (ii) to make such provisions for the purpose of curing any ambiguity,
inconsistency or omission, or of curing or correcting any defective provision,
contained in this Indenture, or in regard to matters or questions arising under this
Indenture, as Borrower may deem necessary or desirable which do not adversely affect
the rights of the Registered Owners hereunder;




     (iii) to modify, amend or supplement this Indenture in such manner as to permit
the qualification hereof under the Trust Indenture Act of 1939, as amended, or any
similar federal statute hereafter in effect, and to add such other terms, conditions
and provisions as may be permitted by said act or similar federal statute;




     (iv) to make such provisions for the purpose of conforming to the terms and
provisions of any Alternate Letter of Credit or Alternate Credit Facility or to
obtain a rating on the Notes which do not adversely affect the rights of the
Registered Owners hereunder; and




     (v) to modify, amend or supplement this Indenture in any other respect which
does not adversely affect the rights of the Registered Owners hereunder. Trustee
shall give notice of any such modification or amendment to each rating agency then
rating the Notes.




     (c) Trustee may in its discretion, but shall not be obligated to, enter into any such
Supplemental Indenture authorized by subsections (a) or (b) of this Section which materially
adversely affects Trustee’s own rights, duties or immunities under this Indenture or
otherwise. In executing, or accepting the additional trusts created by, any Supplemental
Indenture permitted by this Article or the modification thereby of the trusts created by
this Indenture, Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an opinion of counsel stating that the execution of such Supplemental
Indenture is authorized or permitted by this Indenture.



     Section 9.02. Effect of Supplemental Indenture. Upon the execution of any Supplemental
Indenture pursuant to this Article, this Indenture shall be deemed to be modified



50









 







and amended in accordance therewith, and the respective rights, duties and obligations under
this Indenture of Borrower, Trustee, Credit Issuer and all Registered Owners of Notes Outstanding
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such
modification and amendment, and all the terms and conditions of any such Supplemental Indenture
shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes.



     Section 9.03. Endorsement of Notes; Preparation of New Notes. Notes delivered after the
execution of any Supplemental Indenture pursuant to this Article may, and if Borrower so determines
shall, bear a notation by endorsement or otherwise in form approved by Borrower as to any
modification or amendment provided for in such Supplemental Indenture, and, in that case, upon
demand of the Registered Owner of any Note Outstanding at the time of such execution and
presentation of his Note for the purpose at the office of Note Registrar or at such additional
offices as Note Registrar may select and designate for that purpose, a suitable notation shall be
made on such Note. If the Supplemental Indenture shall so provide, new Notes so modified as to
conform, in the opinion of Borrower, to any modification or amendment contained in such
Supplemental Indenture, shall be prepared and executed by Borrower and authenticated by Note
Registrar, and upon demand of the Registered Owners of any Notes then Outstanding shall be
exchanged at the principal office of Note Registrar, without cost to any Registered Owner, for
Notes then Outstanding upon surrender for cancellation of such Notes in equal aggregate principal
amounts of the same maturity.



     Section 9.04. Amendment of Particular Notes. The provisions of this Article shall not prevent
any Registered Owner from accepting any amendment as to the particular Notes held by such
Registered Owner, provided that due notation thereof is made on such Notes.



ARTICLE X




DEFEASANCE




     Section 10.01. Discharge of Indenture. The Notes may be paid by Borrower in any of the
following ways, provided that Borrower also pays or causes to be paid any other sums payable
hereunder by Borrower:




     (a) by paying or causing to be paid with Available Moneys the principal of, interest
and premium, if any, on the Notes, as and when the same become due and payable;




     (b) by depositing with Trustee, in trust, at or before maturity, money or securities in
the necessary amount (as provided in Section 10.03 hereof) to pay or redeem with Available
Moneys all Notes then Outstanding; or




     (c) by delivering to Trustee, for cancellation by it, the Notes then Outstanding.



     If the Notes are paid by Borrower pursuant to Section 10.01(b) hereof prior to the Fixed
Interest Rate Date, Borrower shall provide to Trustee written evidence from Moody’s, if the Notes
are then rated by Moody’s, and S&P, if the Notes are then rated by S&P, to the effect that



51









 







such payment will not result in a withdrawal of its rating on the Notes or a reduction from
the rating which then exists as to the Notes. If Borrower shall also pay or cause to be paid all
other sums payable hereunder by Borrower, then and in that case, at the election of Borrower
(evidenced by a Certificate of Borrower, filed with Trustee, signifying the intention of Borrower
to discharge all such indebtedness and this Indenture), and notwithstanding that any Notes shall
not have been surrendered for payment, this Indenture and the pledge of the Account Funds and other
assets made under this Indenture and all covenants, agreements and other obligations of Borrower
under this Indenture shall cease, terminate, become void and be completely discharged and satisfied
except only as provided in Sections 8.06(b) and 10.02 hereof. In such event, upon Request of
Borrower, Trustee shall cause an accounting for such period or periods as may be requested by
Borrower to be prepared and filed with Borrower and shall execute and deliver to Borrower all such
instruments as may be necessary or desirable to evidence such discharge and satisfaction, and
Trustee shall pay over, transfer, assign or deliver all moneys or securities or other property held
by it pursuant to this Indenture which are not required for the payment of obligations to be paid
from Additional Payments or for the payment or redemption of Notes not theretofore surrendered for
such payment or redemption in the following order (i) first, to Credit Issuer to the extent of any
amounts due to Credit Issuer pursuant to the Reimbursement Agreement, and (ii) otherwise, to
Borrower, provided that moneys in the Letter of Credit Account, the Liquidity Account and the
Remarketing Account shall be returned to Credit Issuer to the extent that Borrower’s obligations
under the Reimbursement Agreement have not otherwise been satisfied.



     Section 10.02. Discharge of Liability on Notes. Upon the deposit with Trustee, in trust, at
or before maturity, of money or securities in the necessary amount (as provided in Section 10.03
hereof) to pay or redeem all Outstanding Notes (whether upon or prior to the maturity or the
redemption date of such Notes), provided that, if any of such Notes are to be redeemed prior to
maturity, notice of such redemption shall have been given as provided in Article IV or provision
satisfactory to Trustee shall have been made for the giving of such notice, then all liability of
Borrower in respect of such Notes shall cease, terminate and be completely discharged, except only
that the Registered Owners thereof shall thereafter be entitled to payment of the principal or
redemption price, as applicable, of and interest on such Notes by Borrower, and Borrower shall
remain liable for such payment, but only out of such money or securities deposited with Trustee as
aforesaid for their payment; provided, further, however, that the provisions of Section 10.04
hereof shall apply in all events. In the event any of said Notes are not to be redeemed within the
next succeeding 60 days, Borrower shall have given Trustee in form satisfactory to it irrevocable
instructions for it to mail, as soon as practicable in the same manner as a notice of redemption is
mailed pursuant to Article IV hereof, a notice to the Registered Owners of such Notes that the
deposit required above has been made with Trustee and that said Notes are deemed to have been paid
in accordance with this Section and stating such maturity or redemption dates upon which moneys are
to be available for the payment of the principal or redemption price, as applicable, of said Notes.



     Section 10.03. Deposit of Money or Securities with Trustee. Whenever in this Indenture it is
provided or permitted that there be deposited with or held in trust by Trustee money or securities
in the necessary amount to pay or redeem any Notes, the money or securities so to be deposited or
held may include money or securities held by Trustee in the funds and



52









 







accounts established pursuant to this Indenture (exclusive of the Note Fund, the Purchase Fund
and the Letter of Credit Account) and shall be:




     (a) Available Moneys in an amount equal to the principal amount of such Notes, all
unpaid interest thereon to maturity, and the purchase price of such Notes except that, in
the case of Notes which are to be redeemed prior to maturity and in respect of which notice
of such redemption shall have been given as in Article IV hereof provided or provision
satisfactory to Trustee shall have been made for the giving of such notice, the amount to be
deposited or held shall be the redemption price of such Notes and all unpaid interest
thereon to the redemption date; or




     (b) Government Obligations purchased with Available Moneys which when due will provide
money sufficient in the opinion of an Accountant delivered to Trustee and Credit Issuer, at
Borrower’s expense, to pay the principal or redemption price, as applicable, of, all unpaid
interest to maturity, or to the redemption date, as the case may be, on the Notes to be paid
or redeemed, as such principal and interest become due, and the purchase price of such
Notes; provided that, in the case of Notes which are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as provided in Article IV hereof or
provision satisfactory to Trustee shall have been made for the giving of such notice; and
provided further that Government Obligations purchased pursuant to this paragraph shall not
be subject to redemption prior to their maturity other than at the option of the holder
thereof unless the moneys to be available from the redemption of such securities on the
earliest date on which such securities are subject to redemption, other than at the option
of the holder thereof, shall be at least equal to the amount of money expected to be derived
in connection with such securities in determining that the provisions of this paragraph have
been satisfied;


provided, in each case, that Trustee shall have been irrevocably instructed (by the terms of this
Indenture or by Request of Borrower) to apply such money to the payment of such principal or
redemption price, as applicable, and interest with respect to such Notes.




     Section 10.04. Payments After Discharge of Indenture. When there are no longer any Notes
Outstanding, and all fees, charges and expenses of Trustee, Tender Agent and any Paying Agents have
been paid or provided for, and all expenses of Borrower relating to this Indenture have been paid
or provided for, and all other amounts payable hereunder have been paid, and this Indenture has
been discharged and satisfied, and subject to the escheat laws of the State, Trustee shall pay any
moneys remaining in any fund established and held hereunder in the following order (a) first, to
Credit Issuer to the extent of any amounts due to Credit Issuer pursuant to the Reimbursement
Agreement, and (b) otherwise to Borrower, provided that moneys in the Letter of Credit Account, the
Liquidity Account and the Remarketing Account shall be returned to Credit Issuer to the extent that
Borrower’s obligations under the Reimbursement Agreement have not otherwise been satisfied.



53









 





ARTICLE XI




MISCELLANEOUS




     Section 11.01. Successor Is Deemed Included in All References to Predecessor. Whenever in
this Indenture either Borrower or Trustee is named or referred to, such reference shall be deemed
to include the successors or assigns thereof, and all the covenants and agreements in this
Indenture contained by or on behalf of Borrower or Trustee shall bind and inure to the benefit of
the respective successors and assigns thereof whether so expressed or not.



     Section 11.02. Limitation of Rights to Parties and Registered Owners. Nothing in this
Indenture or in the Notes expressed or implied is intended or shall be construed to give to any
Person other than Trustee, Tender Agent, Credit Issuer, Borrower and the Registered Owners of the
Notes, any legal or equitable right, remedy or claim under or in respect of this Indenture or any
covenant, condition or provision therein or herein contained; and all such covenants, conditions
and provisions are and shall be held to be for the sole and exclusive benefit of Trustee, Credit
Issuer, Borrower and the Registered Owners of the Notes. Credit Issuer is expressly made a third
party beneficiary to this Indenture.



     Section 11.03. Waiver of Notice. Whenever in this Indenture the giving of notice by mail or
otherwise is required, the giving of such notice may be waived in writing by the Person entitled to
receive such notice and in any such case the giving or receipt of such notice shall not be a
condition precedent to the validity of any action taken in reliance upon such waiver.



     Section 11.04. Severability of Invalid Provisions. If any one or more of the provisions
contained in this Indenture or in the Notes shall for any reason be held to be invalid, illegal or
unenforceable in any respect, then such provision or provisions shall be deemed severable from the
remaining provisions contained in this Indenture and such invalidity, illegality or
unenforceability shall not affect any other provision of this Indenture, and this Indenture shall
be construed as if such invalid or illegal or unenforceable provision had never been contained
herein. Borrower hereby declares that it would have entered into this Indenture and each and every
other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance of the
Notes pursuant thereto irrespective of the fact that any one or more Sections, paragraphs,
sentences, clauses or phrases of this Indenture may be held illegal, invalid or unenforceable.



     Section 11.05. Governing Law. This Indenture shall be governed exclusively by and construed
in accordance with the applicable laws of the State for contracts executed and delivered, and to be
completely performed, in the State without giving effect to conflicts of law provisions.



     Section 11.06. Notices. If a Registered Owner delivers a written request to Trustee setting
forth the appropriate telecopier number and other necessary information to enable Trustee to
deliver notices by telecopier or other telecommunication device notices shall be delivered to such
Registered Owner in the manner requested unless otherwise provided herein and confirmed in writing
as soon as practicable. In all other events, notices shall be delivered to each Registered Owner
by first-class mail, postage prepaid, at the address set forth for such Registered



54









 







Owner on the registration books required to be maintained by Note Registrar pursuant to
Section 2.08 hereof.



     All other notices, certificates, requests, demands and communications provided for hereunder
shall be in writing and shall be (a) personally delivered, (b) sent by first class United States
mail, (c) sent by overnight courier of national reputation, or (d) transmitted by telecopy, in each
case addressed to the party to whom notice is being given at its address as set forth below and, if
telecopied, transmitted to that party at its telecopier number set forth below or, as to each
party, at such other address or telecopier number as may hereafter be designated by such party in a
written notice to the other party complying as to delivery with the terms of this Section. All
such notices, requests, demands and other communications shall be deemed to have been given on (a)
the date received if personally delivered, (b) when deposited in the mail if delivered by mail, (c)
the date sent if sent by overnight courier, or (d) the date of transmission if delivered by
telecopy.



	 	 		 
	 	If to Borrower:

		LTF Real Estate VRDN I, LLC
	 	 

		2092 Corporate Place
	 	 

		Chanhassen, MN 55317
	 	 

		Attn: Treasurer
	 	 
		 
	 	With a copy to:

		Faegre & Benson LLP
	 	 

		2200 Wells Fargo Center
	 	 

		90 South Seventh Street
	 	 

		Minneapolis, MN 55402
	 	 

		Attn: Scott Anderegg, Esq.
	 	 
		 
	 	If to Trustee:

		Manufacturers and Traders Trust Company
	 	 

		Mail Code: PA1-HM22
	 	 

		213 Market Street
	 	 

		Harrisburg, PA 17101
	 	 

		Attn: Corporate Trust Administration
	 	 
		 
	 	If to Tender Agent:

		Manufacturers and Traders Trust Company
	 	 

		Mail Code: PA1-HM22
	 	 

		213 Market Street
	 	 

		Harrisburg, PA 17101
	 	 

		Attn: Corporate Trust Administration
	 	 
		 
	 	If to Credit Issuer:

		General Electric Capital Corporation
	 	 

		40 Old Ridgebury Road
	 	 

		Danbury, CT 06810
	 	 

		Attn: Syndications—VRDB
	 	 
		 
	 	With a copy to:

		GE Government Finance, Inc.
	 	 

		8400 Normandale Lake Boulevard, Suite 470
	 	 

		Minneapolis, MN 55437
	 	 

		Attn: Vice President—Risk Management






55









 






	 	 		 
	 	If to Remarketing Agent:

		Dougherty & Company LLC
	 	 

		90 South Seventh Street
	 	 

		Suite 4400
	 	 

		Minneapolis, MN 55402
	 	 

		Attn: David B. Juran
	 	 
		 
	 	If to Rating Agency:

		Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.
	 	 

		55 Water Street, 42nd Floor
	 	 

		New York, NY 10041
	 	 

		Attn: LOC Surveillance
	 	 

		E-mail: nyloc@standardandpoors.com
	 
	 	If to DTC:

		Notices required to be given under this Indenture to DTC by facsimile
transmission shall be sent to DTC’s Call Notification Department at (212) 855-7246.
Notices to DTC by mail or any other means shall be sent to:
	 	 
		 
	 	 

		The Depository Trust Company
	 	 

		55 Water Street
	 	 

		New York, NY 10004






     Section 11.07. Evidence of Rights of Registered Owners. Any request, consent or other
instrument required or permitted by this Indenture to be signed and executed by Registered Owners
may be in any number of concurrent instruments of substantially similar tenor and shall be signed
or executed by such Registered Owners in person or by an agent or agents duly appointed in writing.
Proof of the execution of any such request, consent or other instrument or of a writing appointing
any such agent, or of the holding by any person of Notes transferable by delivery, shall be
sufficient for any purpose of this Indenture and shall be conclusive in favor of Trustee and of
Borrower if made in the manner provided in this Section.



     The fact and date of the execution by any person of any such request, consent or other
instrument or writing may be proved by the certificate of any notary public or other officer of any
jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the
person signing such request, consent or other instrument acknowledged to such notary public or
other officer the execution thereof or by an affidavit of a witness of such execution duly sworn to
before such notary public or other officer.



     The ownership of registered Notes shall be proved by the Note registration books held by Note
Registrar.



     Any request, consent or other instrument or writing of the Registered Owner of any Note shall
bind every future Registered Owner of the same Note and the Registered Owner of every Note issued
in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by
Trustee or Borrower in accordance therewith or reliance thereon.



56









 





     Section 11.08. Disqualified Notes. In determining whether the Registered Owners of the
requisite aggregate principal amount of Notes have concurred in any demand, request, direction,
consent or waiver under this Indenture, Notes which are owned or held by or for the account of
Borrower (including Borrower Notes), or by any other obligor on the Notes, or by any person
directly or indirectly controlling or controlled by, or under direct or indirect common control
with, Borrower or any other obligor on the Notes, shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination. Notes so owned which have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of Trustee the pledgee’s right to vote such Notes and that the
pledgee is not a person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, Borrower or any other obligor on the Notes. In case of a dispute as
to such right, any decision by Trustee taken upon the advice of counsel shall be full protection to
Trustee.



     Section 11.09. Money Held for Particular Notes.




     (a) The money held by Trustee for the payment of the interest, principal, or premium
due on any date with respect to particular Notes (or portions of Notes in the case of Notes
redeemed in part only) shall, on and after such date and pending such payment, be set aside
on its books and held in trust by it for the Registered Owners of the Notes entitled thereto
(subject, however, to the provisions of Section 10.04 hereof) for a period of two years but
without any liability for interest thereon.




     (b) Upon the expiration of the period specified in subsection (a) above, except as
provided in subsection (c) below, funds held by Trustee pursuant to this Indenture shall be
paid, subject to any prior payments pursuant to the provisions of Section 10.04 hereof, to
Borrower, and funds held by Tender Agent shall be paid to Trustee and thereafter paid,
subject to the provisions of Section 10.04 hereof, to Borrower, upon direction of an
Authorized Representative of Borrower, and, subject to the escheat laws of the State,
thereafter Registered Owners shall be entitled to look only to Borrower for payment, and
then only to the extent of the amount so deposited with Borrower, and all liability of
Borrower or Trustee with respect to such money shall thereupon cease, and Borrower shall not
be liable for any interest thereon and shall not be regarded as a trustee of such money.




     (c) Any moneys held by Trustee or Tender Agent, as the case may be, in the Letter of
Credit Account or the Liquidity Account for the payment of the principal, premium, or
purchase price of any Notes not so applied to the payment of the Notes within two years
after the date on which the same shall have become due shall be transferred to Credit
Issuer. Upon the expiration of the period specified in subsection (a) above, any moneys
held by Tender Agent representing the proceeds of the remarketing of the Notes but which
were not so applied to the payment of Notes shall be transferred to Credit Issuer. All such
moneys shall be subject to escheat to the State in accordance with the laws thereof.
Registered Owners shall be entitled to look only to Credit Issuer for payment from such
moneys, and all liability of Borrower, Trustee or Tender Agent with respect to such money
shall thereupon cease, and Trustee, Tender Agent, Credit Issuer or



57









 







Borrower shall not be liable for any interest thereon and such parties shall not be
regarded as a trustee of such money.



     Section 11.10. Funds and Accounts. Any fund or account required by this Indenture to be
established and maintained by Trustee may be established and maintained in the accounting records
of Trustee, either as a fund or an account, and may, for the purposes of such records, any audits
thereof and any reports or statements with respect thereto, be treated either as a fund or as an
account, but all such records with respect to all such funds and accounts shall at all times be
maintained in accordance with generally accepted corporate trust industry standards, to the extent
practicable, and with due regard for the requirements of Section 6.05 hereof and for the protection
of the security of the Notes and the rights of every Registered Owner thereof and Credit Issuer’s
interest created herein.



     Section 11.11. Execution in Several Counterparts. This Indenture may be executed in any
number of counterparts and each of such counterparts shall for all purposes be deemed to be an
original; and all such counterparts, or as many of them as Borrower and Trustee shall preserve
undestroyed, shall together constitute but one and the same instrument.



     Section 11.12. Actions Due on Saturdays, Sundays and Holidays. Except as otherwise provided
in this Indenture, if any date on which a payment, notice or other action required by this
Indenture falls on other than a Business Day, then that action or payment need not be taken or made
on such date, but may be taken or made on the next succeeding Business Day with the same force and
effect as if made on such date.



     Section 11.13. References to Credit Issuer. Notwithstanding any provisions contained herein
to the contrary, Credit Issuer shall be entitled to take all actions and exercise all rights
hereunder for its own account so long as Credit Issuer has not wrongfully dishonored any drawings
under the Letter of Credit and Credit Issuer is not in liquidation, bankruptcy or receivership
proceedings. After the expiration or termination of the Letter of Credit and after all obligations
owed to Credit Issuer pursuant to the Reimbursement Agreement have been paid in full or discharged,
all references to Credit Issuer contained herein (other than in Section 10.04 hereof) shall be null
and void and of no further force and effect.



     Section 11.14. Usury. Notwithstanding anything to the contrary contained herein or in the
Notes, the obligations of Borrower to Noteholders hereunder and under the Notes are subject to the
limitation that payments of interest, amounts deemed by applicable law to be interest, and late
charges to Noteholders shall not be required to the extent that receipt of any such payment by
Noteholders would be contrary to provisions of applicable law limiting the maximum rate of interest
that may be charged or collected by Noteholders. The portion of any such payment received by
Noteholders that is in excess of the maximum interest permitted by such provisions of law shall be
credited to the principal balance of the Notes or if such excess portion exceeds the outstanding
principal balance of the Notes, then such excess portion shall be refunded to Borrower. All
interest paid or agreed to be paid to Noteholders shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and/or spread throughout the full term of the Notes (including,
without limitation, the period of any renewal or extension thereof) so that interest for such full
term shall not exceed the maximum amount permitted by applicable law.



58









 





     Section 11.15. Waiver of Jury Trial. TRUSTEE AND BORROWER HEREBY WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR
INDIRECTLY, THIS INDENTURE. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS INDENTURE, ANY
RELATED DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED BY THIS INDENTURE OR ANY RELATED TRANSACTIONS. IN THE EVENT OF LITIGATION, THIS
INDENTURE MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.



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EXECUTION PAGE FOLLOWS]




59









 





     IN WITNESS WHEREOF, Borrower has caused this Indenture to be signed in its name by one of the
duly authorized officers of Borrower, and Trustee, in token of its acceptance of the trusts created
hereunder, has caused this Indenture to be signed in its corporate name by one of its duly
authorized signatories, all as of the day and year first above written.



	 	 	 	 	 	 	 
	Borrower:	 	LTF REAL ESTATE VRDN I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Print:
	 	 

Eric J. Buss
	 	 
	 

	 	Its:
	 	Secretary	 	 
	 
	 	 	 	 	 	 
	Trustee:	 	MANUFACTURERS AND TRADERS TRUST

COMPANY, as trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Print:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






[EXECUTION PAGE OF INDENTURE OF TRUST]















 








Exhibit A to Indenture




FORM OF NOTE



THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THIS NOTE UNDER PARAGRAPH (b)(1)(ii) OF RULE 144 UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO BORROWER (AS DEFINED
BELOW) OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE),
IT WILL FURNISH TO MANUFACTURERS AND TRADERS TRUST COMPANY, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE) (AND TO BORROWER AS PROVIDED BELOW), SUCH CERTIFICATIONS OR LEGAL OPINIONS AS TRUSTEE
(OR BORROWER IN THE CASE OF A TRANSFER PURSUANT TO CLAUSE 2(C) ABOVE) MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE LAW; AND (4)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS
NOTE PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER PARAGRAPH (b)(1)(ii)
OF RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
PROVISION REQUIRING TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE
FOREGOING RESTRICTION.




			
	 
	No.
R-1 
	 	$34,235,000






LTF REAL ESTATE VRDN I, LLC

VARIABLE RATE DEMAND NOTES,

SERIES 2008














 





	 	 	 	 	 
	Maturity Date
	 	Original Issue Date
	 	CUSIP
	 
	June 1, 2033
	 	June 13, 2008
	 	50217N AA1







			
	Registered Owner:	 	CEDE & CO.






			
	Principal Sum:	 	THIRTY-FOUR MILLION TWO HUNDRED THIRTY-FIVE THOUSAND DOLLARS





     LTF Real Estate VRDN I, LLC, a Delaware limited liability company (“Borrower”), for value
received, hereby promises to pay to the Registered Owner specified above, or registered assigns, on
the maturity date set forth above (subject to any right of prior redemption hereinafter mentioned),
the principal sum set forth above, in lawful money of the United States of America, and to pay
interest thereon in like lawful money from and including the Interest Payment Date (as defined
herein) next preceding the date of registration of this Note (this “Note”) (unless this Note is
registered after a Record Date (as defined herein) and on or before the next succeeding Interest
Payment Date or on an Interest Payment Date, in which event it shall bear interest from and
including such Interest Payment Date, or unless this Note is registered on or prior to July 1,
2008, in which event it shall bear interest from and including the date of initial issuance and
delivery (the “Date of Delivery”)), until payment of such principal sum shall be discharged as
provided in the Indenture (as defined herein), at the rates per annum determined as set forth
below. The interest on this Note will be payable on July 1, 2008 and thereafter on each Interest
Payment Date. The term “Interest Payment Date” means (a) with respect to interest accruing at the
Weekly Interest Rate (as defined herein), the first Business Day (as defined herein) of each
calendar month, commencing on July 1, 2008 and (b) with respect to interest accruing at the Fixed
Interest Rate (as defined herein), each Semiannual Date (as defined herein), commencing with the
first such date that is at least two months after the Fixed Interest Rate Date. The principal (or
redemption price) hereof is payable upon presentation hereof at the designated corporate trust
office of Manufacturers and Traders Trust Company (together with any successor as trustee under the
Indenture, the “Trustee”), at 213 Market Street, Harrisburg, PA 17101 or at such other office as
Trustee may designate. Interest hereon is payable by check mailed, except as provided in the
Indenture, to the person whose name appears on the Note registration books of Trustee as the
Registered Owner hereof as of the close of business on the Record Date, in each case, at such
person’s address as it appears on such registration books. The term “Record Date” means, prior to
the Fixed Interest Rate Date, the Business Day preceding any Interest Payment Date, and after the
Fixed Interest Rate Date, the 15th day of the calendar month preceding any Interest Payment Date,
whether or not such day is a Business Day.



     In addition to the terms and words defined elsewhere in this Note, the following terms and
words shall, for purposes of this Note, have the following meanings:



     “Business Day” means a day which is not a Saturday, Sunday or legal holiday on which banking
institutions in the State of New York or in any state in which the principal office of Credit
Issuer, or the office of Tender Agent or Trustee designated for payment of Notes, or the office of
Credit Issuer designated for presentations under the Letter of Credit is located are closed or a
day on which the New York Stock Exchange is closed.




A-2











 





     “Fixed Interest Rate” means the interest rate borne by the Notes from and after the Fixed
Interest Rate Date and determined in accordance with Sections 2.03 and 2.04 of the Indenture.



     “Fixed Interest Rate Date” means the date on which the Notes begin to bear interest at the
Fixed Interest Rate, which shall be an Interest Payment Date.



     “Fixed Rate Period” means the period from and including the Fixed Interest Rate Date
designated pursuant to Section 2.04 of the Indenture to and including the date next preceding the
date of maturity on the Notes.



     “Rate Mode” means the Weekly Mode or Fixed Interest Rate.



     “Semiannual Date” means each January 1 and July 1.



     “Semiannual Period” means a six-month period commencing on a Semiannual Date and ending on and
including the day immediately preceding the next Semiannual Date.



     “Weekly Interest Rate” means the interest rate on the Notes determined pursuant to
Section 2.03(a) of the Indenture.



     “Weekly Mode” means the Rate Mode during which the Notes bear interest at a Weekly Interest
Rate.



     “Weekly Rate Calculation Date” means Wednesday in each calendar week or, if any Wednesday is
not a Business Day, the first Business Day preceding such Wednesday.



     “Weekly Rate Period” means the seven-day period commencing on the first Thursday following the
corresponding Weekly Rate Calculation Date and running through Wednesday of the following calendar
week, except that (i) the first Weekly Rate Period shall commence on the Delivery Date and end on
and include the first Wednesday occurring on or after the Delivery Date and (ii) the last Weekly
Rate Period prior to the Fixed Interest Rate Date or final maturity date, whichever is earlier,
shall end on and include the last day immediately preceding the Fixed Interest Rate Date or final
maturity date, as applicable.



     Borrower, Manufacturers and Traders Trust Company, as tender agent (“Tender Agent”), Trustee,
any paying agent, and any agent of Borrower, Tender Agent or Trustee may treat the person in whose
name this Note is registered as the absolute owner hereof for the purpose of receiving payment as
herein provided and for all other purposes, and Borrower, Tender Agent, Trustee, any paying agent
or any such agent shall not be affected by notice to the contrary.



     This Note is one of a duly authorized issue of notes of Borrower designated as captioned above
(the “Notes”) pursuant to an Indenture of Trust dated as of June 1, 2008 (the “Indenture”) between
Borrower and Trustee. The payment of principal of and interest on the Notes is secured by an
irrevocable direct pay Letter of Credit No. LF-001 (the “Letter of Credit”) issued by General
Electric Capital Corporation (“Credit Issuer”). Such Letter of Credit may be renewed or
substituted by an alternate letter of credit of another financial institution or an alternate
credit facility as provided in the Indenture.



A-3









 





     Reference is hereby made to the Indenture (a copy of which is on file at said office of
Trustee) and all indentures supplemental thereto for a description of the rights thereunder of the
registered owners of the Notes, of the nature and extent of the security, of the rights, duties and
immunities of Trustee and Tender Agent and of the rights and obligations of Borrower thereunder, to
all the provisions of which Indenture the Registered Owner of this Note, by acceptance hereof,
assents and agrees.



     The Notes and the interest thereon are payable solely from Note Payments (as defined in the
Indenture) and Account Funds (as defined in the Indenture) and are secured by a pledge of said
Account Funds (except as provided in the Indenture), including proceeds of the sale of the Notes,
subject only to the provisions of the Indenture permitting the application thereof for the purposes
and on the terms and conditions set forth in the Indenture. The Notes are further secured by the
Letter of Credit.



     The Notes shall bear interest from and including the Date of Delivery of the Notes to and
including a date specified in the Indenture at the rate specified in the Indenture. Thereafter, so
long as the Notes accrue interest at a Weekly Interest Rate, the Notes shall bear interest,
calculated on the basis of a year of 360 days and the actual number of days elapsed at a rate per
annum equal to the Weekly Interest Rate. Interest accruing on the Notes at a Fixed Interest Rate
shall be computed on the basis of a 360-day year consisting of twelve 30-day months.



     A Weekly Interest Rate shall be determined for each Weekly Rate Period as described below.
For each Weekly Rate Period, the interest rate on the Notes in the Weekly Mode shall be the current
market rate determined by Remarketing Agent on the immediately preceding Weekly Rate Calculation
Date, in accordance with Section 2.03(a) of the Indenture. On each Weekly Rate Calculation Date,
Remarketing Agent shall determine the Weekly Interest Rate for the next succeeding Weekly Rate
Period as the rate which, if borne by the Notes in the Weekly Mode, would, in the judgment of
Remarketing Agent, be the lowest interest rate necessary to enable Remarketing Agent to arrange for
the sale of all of the Outstanding Notes in the Weekly Mode at a price equal to the principal
amount thereof plus accrued interest thereon. Notice of such Weekly Interest Rate shall be given
in writing by Remarketing Agent to Borrower, Trustee and Credit Issuer by the close of business on
the Weekly Rate Calculation Date. Notwithstanding anything herein to the contrary, in no event
shall the Weekly Interest Rate borne by the Notes in the Weekly Mode exceed the lesser of 15% per
annum or the maximum rate permitted by applicable law.



     If for any reason Remarketing Agent does not determine a Weekly Interest Rate for any Weekly
Rate Period as aforesaid, the Weekly Interest Rate for that Weekly Rate Period shall be equal to
the Weekly Interest Rate in effect for the immediately preceding Weekly Rate Period for the Notes.



     The determination of the Weekly Interest Rate by Remarketing Agent pursuant to the Indenture
shall be conclusive and binding upon Borrower, Trustee, Remarketing Agent, Credit Issuer, the
Registered Owners and the other registered owners.



     The Fixed Interest Rate for Notes subject to the Fixed Interest Rate shall be determined by
Remarketing Agent as the lowest rate of interest that, in the judgment of Remarketing Agent,



A-4









 







would be necessary to enable Remarketing Agent to arrange for the sale of the Notes subject to
the Fixed Interest Rate in a secondary market sale at a price equal to the principal amount
thereof, plus accrued interest, on the first Business Day of the Fixed Rate Period. Notice of the
Fixed Interest Rate shall promptly be given by telephone (promptly confirmed in writing) by
Remarketing Agent to Trustee, Borrower and Credit Issuer, if any. Determination of the Fixed
Interest Rate pursuant to this Section shall be conclusive and binding upon Trustee, Borrower,
Credit Issuer, if any, Remarketing Agent, and the Registered Owners and shall not exceed the lesser
of 15% per annum or the maximum rate permitted by applicable law.



     The Rate Mode applicable to Notes shall be subject to conversion as provided in Section 2.04
of the Indenture. Trustee, Borrower, Credit Issuer and Remarketing Agent shall not be liable to
any Registered Owners for failure to give any notice required in connection with any such
conversion or for failure of any Registered Owners to receive any such notice.



     The Notes are subject to mandatory tender for purchase on the date an alternate letter of
credit is substituted for the Letter of Credit (the “Letter of Credit Substitution Date”). The
Fixed Interest Rate Date and the Letter of Credit Substitution Date are also referred to as the
“Mandatory Tender Date.”



     All Notes which on the Mandatory Tender Date have not been tendered for purchase (the
“Non-Tendered Notes”) shall be deemed purchased by Tender Agent on the Mandatory Tender Date at a
price of the principal amount thereof plus unpaid interest, if any, accrued to such date.
Replacement Notes for the Non-Tendered Notes may be remarketed and delivered to new owners as
instructed by Borrower or Remarketing Agent. Tender Agent shall hold in escrow for the owners of
the Non-Tendered Notes the purchase price thereof, and after the Mandatory Tender Date such owners
will no longer be entitled to any of the benefits of the Indenture except for the payment of such
purchase price.



     The Indenture provides that prior to the Fixed Interest Rate Date, the Notes may be delivered
by the registered owners thereof to Tender Agent at its designated corporate trust office or at
such other place as Tender Agent may designate in writing to the registered owners of the Notes.
Any Note so delivered or notice with respect to which is received shall be purchased by Tender
Agent on demand of the registered owner thereof on the close of any Business Day at a purchase
price equal to the principal amount thereof plus accrued interest to but not including the date of
purchase (unless such date is an Interest Payment Date, in which case the purchase price will be
the principal amount of such Note) upon delivery to Tender Agent of an irrevocable written notice
by 3:00 p.m., New York time, (if not received by 3:00 p.m., New York time, on a Business Day it
shall be deemed received on the next succeeding Business Day), which states (i) the name and
address of the Registered Owner, (ii) the number or numbers of the Note or Notes to be purchased,
(iii) the aggregate principal amount of the Note or Notes to be purchased, and (iv) the date on
which the Note is or Notes are to be purchased, which date shall be a Business Day not prior to the
seventh calendar day next succeeding the date of delivery of such written notice and delivery to
Tender Agent at or prior to 9:00 a.m., New York time, on the Purchase Date specified in the
aforesaid notice, of the Note or Notes to be tendered; provided, however, that any Note for which a
notice of the exercise of the purchase option has been given as provided in this paragraph and
which is not so delivered shall be deemed delivered on the date of purchase and shall be purchased
in accordance with this Indenture.



A-5









 





     The Notes are subject to redemption by Borrower upon the following terms in increments of
$5,000.00, provided that in the event of redemption of less than all of the Notes, the amount which
remains Outstanding shall be in Authorized Denominations (as defined in the Indenture):




     (a) The Notes are not subject to sinking fund redemption.




     (b) While the Notes are in the Weekly Mode, the Notes are subject to redemption, in
whole on any Business Day or in part on any Interest Payment Date, at the option of
Borrower, with the written approval of Credit Issuer, at a redemption price of 100% of the
outstanding principal amount of the Notes redeemed, plus interest accrued thereon to the
redemption date.




     (c) After the Fixed Interest Rate Date, the Notes are not subject to redemption at the
option of Borrower.




     (d) The Notes shall be redeemed in whole, at a redemption price equal to 100% of the
outstanding principal amount thereof plus interest accrued thereon to the redemption date,
on a redemption date not less than 15 days preceding the expiration date of the Letter of
Credit selected by Trustee if no Alternate Credit Facility or Alternate Letter of Credit has
been delivered to Trustee in accordance with the Indenture.




     (e) To the extent of a prepayment by Borrower as a result of the damage, destruction or
condemnation of the Property and as provided in the Reimbursement Agreement, the Notes are
subject to redemption, in whole on any Business Day or in part on the first Business Day of
each calendar month, after payment of any amounts owed to Credit Issuer pursuant to the
Reimbursement Agreement, prior to their stated maturity, on any date, at a redemption price
equal to 100% of the outstanding principal amount of such Notes that are redeemed, plus
interest accrued thereon to the redemption date.




     (f) The Notes shall be redeemed in whole at a redemption price equal to 100% of the
outstanding principal amount thereof, plus interest accrued thereon to the redemption date,
within five calendar days (and before the following Saturday if the fifth calendar day is a
Saturday) from the date Trustee receives written notice from Credit Issuer that an event of
default has taken place under the Reimbursement Agreement and directing Trustee to redeem
the Notes.



     If an Event of Default (as defined in the Indenture) shall occur, the principal of all Notes
may be declared due and payable upon the conditions, in the manner and with the effect provided in
the Indenture. The Indenture provides that in certain events such declaration and its consequences
may be rescinded.



     The Notes are issuable as fully registered Notes without coupons in denominations of $100,000
or any multiple of $5,000 in excess of $100,000. This Note is transferable by the Registered Owner
hereof, in person or by his attorney duly authorized in writing, but only in the manner, subject to
the limitations and upon payment of the charges, if any, provided in the Indenture, and upon
surrender and cancellation of this Note. Upon such transfer a new registered



A-6









 







Note or Notes, of authorized denomination or denominations, for the same aggregate principal
amount, will be issued to the transferee in exchange therefor.



     The Indenture and the rights and obligations of Borrower and of the registered owners of the
Notes and of Trustee or Tender Agent may be modified or amended from time to time and at any time
(and in certain cases without the consent of the registered owners of the Notes) in the manner, to
the extent, and upon the terms provided in the Indenture; provided that no such modification or
amendment shall (a) extend the fixed maturity of this Note, or reduce the amount of principal
hereof, or extend the time of payment or change the method of computing the rate of interest
hereon, or extend the time of payment of interest hereon, without the consent of the Registered
Owner hereof, (b) reduce the percentage of Notes the consent of the registered owners of which is
required to effect any such modification or amendment, (c) permit the creation of any lien on the
Account Funds and other assets pledged as security for the Notes prior to or on a parity with the
lien created by the Indenture, or deprive the registered owners of the Notes of the lien created by
the Indenture on such Account Funds and other assets (except as expressly provided in the
Indenture), without the consent of the registered owners of all Notes then outstanding, or
(d) adversely affect the interests of Tender Agent without its prior written consent. Trustee
shall not be required to consent to any such amendment which materially adversely affects its
rights, duties and immunities under the Indenture or otherwise, all as more fully set forth in the
Indenture.



     If moneys or securities shall have been set aside and held for the payment or redemption of
Notes and the interest installments therefor to the maturity or redemption date thereof in
accordance with the Indenture, such Notes shall be deemed to be paid within the meaning provided in
the Indenture and the pledge of the Account Funds and other assets made under the Indenture and all
covenants, agreements and other obligations of Borrower under the Indenture shall cease, terminate,
become void and be completely discharged and satisfied.



     This Note shall not be entitled to any benefit under the Indenture, or become valid or
obligatory for any purpose, until the certificate of authentication and registration hereon
endorsed shall have been signed by Trustee.



     Notwithstanding anything to the contrary contained in this Note or the Indenture, the
obligations of Borrower to Registered Owner hereunder and under the Indenture are subject to the
limitation that payments of interest, amounts deemed by applicable law to be interest, and late
charges to Registered Owner shall not be required to the extent that receipt of any such payment by
Registered Owner would be contrary to provisions of applicable law limiting the maximum rate of
interest that may be charged or collected by Registered Owner. The portion of any such payment
received by Registered Owner that is in excess of the maximum interest permitted by such provisions
of law shall be credited to the principal balance of this Note or if such excess portion exceeds
the outstanding principal balance of this Note, then such excess portion shall be refunded to
Borrower. All interest paid or agreed to be paid to Registered Owner shall, to the extent
permitted by applicable law, be amortized, prorated, allocated and/or spread throughout the full
term of this Note (including, without limitation, the period of any renewal or extension thereof)
so that interest for such full term shall not exceed the maximum amount permitted by applicable
law.



A-7









 





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A-8









 








     IN WITNESS WHEREOF, LTF Real Estate VRDN I, LLC has caused this Note to be executed in its
name and on its behalf by the manual signature of an authorized representative of Borrower as of
the date set forth above.



	 	 	 	 	 	 	 
	Borrower:	 	LTF REAL ESTATE VRDN I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Print: Eric J. Buss	 	 
	 	 	Its: Secretary	 	 






[EXECUTION PAGE OF NOTE]




A-9









 








CERTIFICATE OF AUTHENTICATION AND REGISTRATION



This is one of the Notes described in the within-mentioned Indenture, which has been registered on
                     ___, 20___.




	 	 	 	 	 	 	 
	 	 	MANUFACTURERS AND TRADERS TRUST	 	 
	 	 	COMPANY, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Signatory	 	 






A-10









 





ASSIGNMENT




     For value received the undersigned do(es) hereby sell, assign and transfer unto
              
                                                                  
                                                            

              
                                                                  
  (Insert name,
address, zip code and Social Security, taxpayer or other identification numbers of Assignee) the
within-mentioned registered Note and hereby irrevocably constitute(s) and appoint(s)
                                                                         
        attorney, to transfer the same on the books of Note Registrar with full
power of substitution in the premises.



	 	 	 
	Dated:                                                               


	 	       
                                                                    
                                



Notice: The signature on this Assignment must
correspond with the name of the Registered Owner as
it appears upon the face of the within Note in every
particular without alteration or enlargement or any
change whatsoever.
	 
	 	 
	 

	 	Signature guaranteed:
	 
	 	 
	 

	 	       
                                                                    
                                
(NOTE: Signature must be guaranteed by an Eligible Guarantor 

Institution)
	 

	 	






A-11









 





Exhibit B to Indenture




FORM OF PAYMENT REQUEST FORM




Payment Request Form No. ___




     LTF Real Estate VRDN I, LLC (“Borrower”) hereby requests Manufacturers and Traders Trust
Company, as trustee (“Trustee”) under the Indenture of Trust dated as of June 1, 2008 (the
“Indenture”) between Borrower and Trustee, to make payment from the Note Fund (as defined in the
Indenture), to the following party or parties, at the addresses set forth below:



     In connection therewith, the undersigned officer of Borrower hereby certifies as follows:



     1. All of the provisions of the Indenture and the Reimbursement Agreement dated as of June 1,
2008 (the “Reimbursement Agreement”) among General Electric Capital Corporation (“Credit Issuer”),
GE Government Finance, Inc. and Borrower are incorporated herein by reference and capitalized terms
used herein and not defined shall have the meanings assigned to them in the Indenture.



     2. All of Borrower’s representations, covenants and warranties contained in the Reimbursement
Agreement were true and accurate in all material respects as of the date made, and remain true and
accurate in all material respects as of the date of this Payment Request Form, and Borrower has
fully and satisfactorily performed all of its covenants and obligations to date required under the
Reimbursement Agreement. No Default or Event of Default has occurred under the Reimbursement
Agreement. Borrower has satisfied all of the conditions contained in Section 3.01 of the
Reimbursement Agreement.



     3. Borrower understands that Credit Issuer and Trustee are relying on the certifications
herein with regard to and in connection with approving the disbursement requested hereby.



	 	 	 	 	 	 	 
	 	 	BORROWER:	 	 
	 
	 	 	 	 	 	 
	 	 	LTF REAL ESTATE VRDN I, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	Print: Eric J. Buss	 	 
	 	 	Its: Secretary	 	 
	 
	 	 	 	 	 	 
	 	 	APPROVED BY CREDIT ISSUER:	 	 
	 
	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	Date: