Exhibit 10.1


 


JUNIOR
SUBORDINATED INDENTURE


 


between


 


GKK
CAPITAL LP


 


and


 


THE
BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL

ASSOCIATION,

as Trustee


 


 


Dated
as of January 30, 2009


 

















 


TABLE OF
CONTENTS


 


	
  ARTICLE I
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

  	
  1

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
  SECTION 1.2

  	
  Compliance Certificate and Opinions

  	
  8

  
	
  SECTION 1.3

  	
  Forms of Documents Delivered to Trustee

  	
  9

  
	
  SECTION 1.4

  	
  Acts of Holders

  	
  9

  
	
  SECTION 1.5

  	
  Notices, Etc. to Trustee and Company

  	
  11

  
	
  SECTION 1.6

  	
  Notice to Holders; Waiver

  	
  12

  
	
  SECTION 1.7

  	
  Effect of Headings and Table of Contents

  	
  13

  
	
  SECTION 1.8

  	
  Successors and Assigns

  	
  13

  
	
  SECTION 1.9

  	
  Separability Clause

  	
  13

  
	
  SECTION 1.10

  	
  Benefits of Indenture

  	
  13

  
	
  SECTION 1.11

  	
  Governing Law

  	
  13

  
	
  SECTION 1.12

  	
  Submission to Jurisdiction

  	
  13

  
	
  SECTION 1.13

  	
  Non-Business Days

  	
  14

  
	
  ARTICLE II
  SECURITY FORMS

  	
  14

  
	
  SECTION 2.1

  	
  Form of Security

  	
  14

  
	
  SECTION 2.2

  	
  Restricted Legend

  	
  19

  
	
  SECTION 2.3

  	
  Form of Trustee’s Certificate of Authentication

  	
  21

  
	
  SECTION 2.4

  	
  Temporary Securities

  	
  21

  
	
  SECTION 2.5

  	
  Definitive Securities

  	
  22

  
	
  ARTICLE III THE SECURITIES

  	
  22

  
	
  SECTION 3.1

  	
  Payment of Principal and Interest

  	
  22

  
	
  SECTION 3.2

  	
  Denominations

  	
  25

  
	
  SECTION 3.3

  	
  Execution, Authentication, Delivery and Dating

  	
  25

  
	
  SECTION 3.4

  	
  Global Securities

  	
  26

  
	
  SECTION 3.5

  	
  Registration, Transfer and Exchange Generally

  	
  27

  
	
  SECTION 3.6

  	
  Mutilated Destroyed, Lost and Stolen Securities

  	
  29

  
	
  SECTION 3.7

  	
  Persons Deemed Owners

  	
  30

  
	
  SECTION 3.8

  	
  Cancellation

  	
  30

  
	
  SECTION 3.9

  	
  Reserved.

  	
  30

  
	
  SECTION 3.10

  	
  Reserved.

  	
  30

  
	
  SECTION 3.11

  	
  Agreed Tax Treatment

  	
  30

  
	
  SECTION 3.12

  	
  CUSIP Numbers

  	
  30

  
	
  ARTICLE IV
  SATISFACTION AND DISCHARGE

  	
  31

  
	
  SECTION 4.1

  	
  Satisfaction and Discharge of Indenture

  	
  31

  
	
  SECTION 4.2

  	
  Application of Trust Money

  	
  32

  
	
  ARTICLE V
  REMEDIES

  	
  32

  
	
  SECTION 5.1

  	
  Events of Default

  	
  32

  
	
  SECTION 5.2

  	
  Acceleration of Maturity; Rescission and Annulment

  	
  33

  
	
  SECTION 5.3

  	
  Collection of Indebtedness and Suits for Enforcement by Trustee

  	
  34

  
	
  SECTION 5.4

  	
  Trustee May File Proofs of Claim

  	
  35

  
	
  SECTION 5.5

  	
  Trustee May Enforce Claim Without Possession of Securities

  	
  35

  
	
  SECTION 5.6

  	
  Application of Money Collected

  	
  35

  
	
  SECTION 5.7

  	
  Limitation on Suits

  	
  36

  



 


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  SECTION 5.8

  	
  Unconditional Right of Holders to Receive Principal, Premium, if any,
  and Interest

  	
  36

  
	
  SECTION 5.9

  	
  Restoration of Rights and Remedies

  	
  36

  
	
  SECTION 5.10

  	
  Rights and Remedies Cumulative

  	
  37

  
	
  SECTION 5.11

  	
  Delay or Omission Not Waiver

  	
  37

  
	
  SECTION 5.12

  	
  Control by Holders

  	
  37

  
	
  SECTION 5.13

  	
  Waiver of Past Defaults

  	
  37

  
	
  SECTION 5.14

  	
  Undertaking for Costs

  	
  38

  
	
  SECTION 5.15

  	
  Waiver of Usury, Stay or Extension Laws

  	
  38

  
	
  ARTICLE VI
  THE TRUSTEE

  	
  39

  
	
  SECTION 6.1

  	
  Corporate Trustee Required

  	
  39

  
	
  SECTION 6.2

  	
  Certain Duties and Responsibilities

  	
  39

  
	
  SECTION 6.3

  	
  Notice of Defaults

  	
  40

  
	
  SECTION 6.4

  	
  Certain Rights of Trustee

  	
  40

  
	
  SECTION 6.5

  	
  May Hold Securities

  	
  42

  
	
  SECTION 6.6

  	
  Compensation; Reimbursement; Indemnity

  	
  42

  
	
  SECTION 6.7

  	
  Resignation and Removal; Appointment of Successor

  	
  43

  
	
  SECTION 6.8

  	
  Acceptance of Appointment by Successor

  	
  44

  
	
  SECTION 6.9

  	
  Merger, Conversion, Consolidation or Succession to Business

  	
  44

  
	
  SECTION 6.10

  	
  Not Responsible for Recitals or Issuance of Securities

  	
  45

  
	
  SECTION 6.11

  	
  Appointment of Authenticating Agent

  	
  45

  
	
  ARTICLE VII HOLDER’S LISTS AND REPORTS BY COMPANY

  	
  46

  
	
  SECTION 7.1

  	
  Company to Furnish Trustee Names and Addresses of Holders

  	
  46

  
	
  SECTION 7.2

  	
  Preservation of Information, Communications to Holders

  	
  47

  
	
  SECTION 7.3

  	
  Reports by Company

  	
  47

  
	
  ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE

  	
  48

  
	
  SECTION 8.1

  	
  Company May Consolidate, Etc., Only on Certain Terms

  	
  48

  
	
  SECTION 8.2

  	
  Successor Company Substituted

  	
  49

  
	
  ARTICLE IX
  SUPPLEMENTAL INDENTURES

  	
  49

  
	
  SECTION 9.1

  	
  Supplemental Indentures without Consent of Holders

  	
  49

  
	
  SECTION 9.2

  	
  Supplemental Indentures with Consent of Holders

  	
  50

  
	
  SECTION 9.3

  	
  Execution of Supplemental Indentures

  	
  51

  
	
  SECTION 9.4

  	
  Effect of Supplemental Indentures

  	
  51

  
	
  SECTION 9.5

  	
  Reference in Securities to Supplemental Indentures

  	
  51

  
	
  ARTICLE X
  COVENANTS

  	
  51

  
	
  SECTION 10.1

  	
  Payment of Principal, Premium, if any, and Interest

  	
  51

  
	
  SECTION 10.2

  	
  Money for Security Payments to be Held in Trust

  	
  51

  
	
  SECTION 10.3

  	
  Statement as to Compliance

  	
  52

  
	
  SECTION 10.4

  	
  Company Status

  	
  53

  
	
  SECTION 10.5

  	
  Inspection of Books and Records; Management and Board Observation Rights

  	
  53

  
	
  SECTION 10.6

  	
  Additional Covenants

  	
  53

  
	
  SECTION 10.7

  	
  Waiver of Covenants

  	
  54

  
	
  SECTION 10.8

  	
  Treatment of Securities

  	
  54

  
	
  ARTICLE XI
  REDEMPTION OF SECURITIES

  	
  54

  



 


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  SECTION 11.1

  	
  Optional Redemption

  	
  54

  
	
  SECTION 11.2

  	
  Reserved

  	
  55

  
	
  SECTION 11.3

  	
  Election to Redeem; Notice to Trustee

  	
  55

  
	
  SECTION 11.4

  	
  Selection of Securities to be Redeemed

  	
  55

  
	
  SECTION 11.5

  	
  Notice of Redemption

  	
  56

  
	
  SECTION 11.6

  	
  Deposit of Redemption Price

  	
  56

  
	
  SECTION 11.7

  	
  Payment of Securities Called for Redemption

  	
  57

  
	
  ARTICLE XII SUBORDINATION OF SECURITIES

  	
  57

  
	
  SECTION 12.1

  	
  Securities Subordinate to Senior Debt

  	
  57

  
	
  SECTION 12.2

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

  	
  57

  
	
  SECTION 12.3

  	
  Payment Permitted If No Default

  	
  59

  
	
  SECTION 12.4

  	
  Subrogation to Rights of Holders of Senior Debt

  	
  59

  
	
  SECTION 12.5

  	
  Provisions Solely to Define Relative Rights

  	
  59

  
	
  SECTION 12.6

  	
  Trustee to Effectuate Subordination

  	
  60

  
	
  SECTION 12.7

  	
  No Waiver of Subordination Provisions

  	
  60

  
	
  SECTION 12.8

  	
  Notice to Trustee

  	
  60

  
	
  SECTION 12.9

  	
  Reliance on Judicial Order or Certificate of Liquidating Agent

  	
  61

  
	
  SECTION 12.10

  	
  Trustee Not Fiduciary for Holders of Senior Debt

  	
  61

  
	
  SECTION 12.11

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

  	
  62

  
	
  SECTION 12.12

  	
  Article Applicable to Paying Agents

  	
  62

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A     
   -

  	
   Form of
  Officer’s Financial Certificate

  	
   

  



 


iii

















 


JUNIOR
SUBORDINATED INDENTURE, dated as of January 30, 2009, between GKK Capital
LP, a Delaware limited partnership (the “Company”), and THE BANK OF NEW YORK
MELLON TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, as
Trustee (in such capacity, the “Trustee”).


 


RECITALS
OF THE COMPANY


 


WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of its unsecured junior subordinated notes (the “Securities”),
and to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered; and


 


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


 


NOW,
THEREFORE, this Indenture Witnesseth:


 


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


 


ARTICLE
I



DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.1         Definitions.


 


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


 


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


 


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


 


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


 


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


 


(e)           the words “hereby,” “herein,” “hereof” and “hereunder”
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision;


 


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


 

















 


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


 


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


 


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


 


“Affiliate” of any specified Person means any other Person
directly or indirectly Controlling or Controlled by or under direct or indirect
common Control with such specified Person.


 


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


 


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


 


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


 


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


 


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


 


“Class B
Units” has the meaning specified in Section 10.6(b).


 


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


 


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


 


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


 


2

















 


Order for the purposes of authentication and delivery
of the Securities pursuant to Section 3.3(a) shall require the
signature of only one of the above referenced officers of the Company.


 


“Control” when used with respect to any specified Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Corporate Trust Office” means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of this Indenture is located at 601
Travis Street, 16th Floor, Houston, Texas 77019, Attn: Global
Corporate Trust—GKK Capital LP. 
Initially, all notices and correspondence shall be addressed to Mudassir
Mohamed, telephone (713) 483-6029.


 


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


 


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


 


“Deferral Period” means any Interest Period commencing during
calendar year 2009.


 


“Deferred Rate”  means a fixed
rate per annum equal to one quarter of one percent (0.25%).


 


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


 


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


 


3

















 


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


 


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


 


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


 


“Equity Interests” means with respect to any person (a) if
such Person is a partnership, the partnership interests (general or limited) in
a partnership, (b) if such person is a limited liability company, the
membership interests in a limited liability company and (c) if such person
is a corporation, the shares or stock interests (both common stock and
preferred stock) in a corporation.


 


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


 


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


 


“Exchange Agreement” means that certain Exchange Agreement
executed and delivered contemporaneously with this Indenture by and among the
Company and the parties named therein.


 


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


 


“Extension Period” has the meaning specified in Section 3.1(h).


 


“Fixed Rate” means a fixed rate equal to (a) for the
Interest Period commencing on January 30, 2009, and for each Interest
Period thereafter through and including the Interest Period ending on January 29,
2012, a fixed rate equal to one half of one percent (0.5%) per annum, (b) for
the Interest Period commencing on January 30, 2012 and for each
consecutive Interest Period thereafter through and including the Stated
Maturity Date, a fixed rate equal to seven and one-half of one percent (7.50%)
per annum.


 


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


 


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


 


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


 


4

















 


held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of principal
of or interest on any Government Obligation that is so specified and held, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.


 


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


 


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


 


“Interest Payment Date” means January 30, April 30,
July 30 and October 30 of each year, commencing on January 30,
2009, during the term of this Indenture.


 


“Interest Period” means the period commencing on an Interest
Payment Date and continuing through and including the day prior to the next
succeeding Interest Payment Date.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


5

















 


(ii)           Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent in trust for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and


 


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


 


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


 


“Parent” means Gramercy Capital Corp., a Maryland
Corporation, as the general partner of the Company, and any successor thereto
as general partner.


 


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


 


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


 


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


 


“Predecessor Security” of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security. 
For the purposes of this definition, any security authenticated and
delivered under Section 3.6 in lieu of a mutilated, destroyed, lost
or stolen Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.


 


“Proceeding” has the meaning specified in Section 12.2.


 


6
















 


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


 


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


 


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


 


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


 


“Rights Plan” means a plan of the Company providing for the
issuance by the Company to all holders of its limited partnership interests of
rights entitling the holders thereof to subscribe for or purchase shares of any
class or series of limited partnership interests in the Company which rights (i) are
deemed to be transferred with such limited partnership interests and (ii) are
also issued in respect of future issuances of such limited partnership
interests, in each case until the occurrence of a specified event or events.


 


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


 


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


 


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


 


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


 


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


 


“Stated Maturity” means June 30, 2035.


 


7

















 


“Subordinated
Debt” means any Debt that is subordinated in right of payment
and security to the Securities.


 


“Subsidiary” of a Person means (a) any corporation more
than fifty percent (50%) of the outstanding voting stock or other voting
interests having ordinary voting power of which shall at the time be owned or
Controlled, directly or indirectly, by such Person and/or by one or more of
other Subsidiaries or (b) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the voting stock having ordinary voting power of which shall
at the time be owned or Controlled, directly or indirectly, by such Person
and/or by one or more other Subsidiaries. 
For purposes of this definition, “voting stock” means stock that
ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of
any contingency.  Unless otherwise expressly
provided, all references herein to a “Subsidiary” shall mean a direct or
indirect Subsidiary of a Person.


 


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


 


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


 


SECTION 1.2         Compliance
Certificate and Opinions.


 


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


 


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


 


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


 


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


 


(iii)          a statement that, in the opinion of
such individual or firm, as applicable, he, she or it has made such examination
or investigation as is necessary to enable him or 


 


8

















 


her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


 


(iv)          a statement as to whether, in the
opinion of such individual or firm (with the firm giving such opinion, relying
on a certificate of the Company as to questions of fact with regard to the
Company), as applicable, such condition or covenant has been complied with.


 


SECTION 1.3         Forms of
Documents Delivered to Trustee.


 


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


 


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


 


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


 


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


 


SECTION 1.4         Acts of
Holders.


 


(a)           Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in 


 


9

















 


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


 


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


 


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


 


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


 


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


 


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


 


10

















 


action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities in the manner set forth in Section 1.6.


 


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


 


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


 


SECTION 1.5         Notices,
Etc.  to Trustee and Company.


 


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


 


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


 


(ii)           the Company by the Trustee, or any
Holder shall be sufficient for every purpose hereunder if in writing and
mailed, first class, postage prepaid, to the Company addressed to it at 420
Lexington Avenue, New York, New York 10170, Attention: Michael G. Kavourias,
with a copy to Clifford Chance US LLP, 31 West 52nd Street, 


 


11

















 


New York, New York 10019,
Attention: Larry P. Medvinsky, or at any other address previously furnished in
writing to the Trustee by the Company.


 


(b)           The Trustee may, but is not required to, rely upon
and comply with instructions and directions sent by email or facsimile, (or any
other reasonable means of communication) by persons believed by the Trustee in
good faith to be authorized to provide such instructions or direction;
provided, however, that the Trustee may require such additional evidence,
confirmation or certification from any such party or parties as the Trustee, in
its reasonable discretion, deems necessary or advisable before acting or
refraining from acting upon any such instruction or direction.


 


(c)           The Trustee agrees to accept and act upon
instructions or directions pursuant to this Agreement sent by unsecured email,
facsimile transmission or other similar unsecured electronic methods; provided, however, that any Person providing such
instructions or directions shall provide to the Trustee an incumbency
certificate listing such designated persons, which incumbency certificate shall
be amended whenever a person is to be added or deleted from the listing.  If such Person elects to give the Trustee
email or facsimile instructions (or instructions by a similar electronic
method) and the Trustee in its discretion elects to act upon such instructions,
the Trustee’s understanding of such instructions shall be deemed
controlling.  The Trustee shall not be
liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such instructions
notwithstanding such instructions conflict or are inconsistent with a
subsequent written instruction.  Each
Person providing instructions or directions to the Trustee hereunder agrees to
assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting, in good faith, on unauthorized instructions, and
the risk of interception and misuse by third parties.


 


SECTION 1.6         Notice to
Holders; Waiver.


 


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


 


12

















 


SECTION 1.7         Effect of
Headings and Table of Contents.


 


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


 


SECTION 1.8         Successors
and Assigns.


 


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


 


SECTION 1.9         Separability
Clause.


 


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


 


SECTION 1.10       Benefits of
Indenture.


 


Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors and assigns, the
holders of Senior Debt, the Holders of the Securities any benefit or any legal
or equitable right, remedy or claim under this Indenture.


 


SECTION 1.11       Governing
Law.


 


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


 


SECTION 1.12       Submission
to Jurisdiction.


 


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


 


13

















 


SECTION 1.13       Non-Business
Days.


 


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


 


ARTICLE
II


 


SECURITY FORMS


 


SECTION 2.1         Form of
Security.


 


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


 


14

















 


GKK
CAPITAL LP


 


Fixed
Rate Junior Subordinated Note due 2035


 


	
  No.

  	
   

  	
  $

  	
   

  



 


GKK
Capital LP, a limited partnership organized and existing under the laws of
Delaware (hereinafter called the “Company,” which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
[                                                          ]
or registered assigns, the principal sum of
[                        ]
[if the Security is a Global Security, then insert
— or such other principal amount represented hereby as may be set forth in the
records of the Securities Registrar hereinafter referred to in accordance with
the Indenture]on June 30, 2035.   The Company further promises to pay interest
on said principal sum from January 30, 2009 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on January 30, April 30, July 30 and October 30
of each year, commencing April 30, 2009 (subject to deferral and/or
partial deferral as set forth herein), or if any such day is not a Business
Day, on the next succeeding Business Day (and no interest shall accrue in
respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at a fixed rate equal to the applicable Fixed Rate until the principal hereof
is paid or duly provided for or made available for payment; provided, further, that
any overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at a fixed rate equal to the applicable Fixed
Rate in effect during the period in which such amount accrues interest (to the
extent that the payment of such interest shall be legally enforceable),
compounded quarterly, from the dates such amounts are due until they are paid
or made available for payment, and such interest shall be payable on demand.


 


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


 


So
long as no Event of Default has occurred and is continuing, the Company shall
have the right, at any time and from time to time during the term of this
Security, to defer the payment 


 


15

















 


of interest on this Security for up to four (4) consecutive
Interest Periods (each such period, an “Extension Period”),
during which Extension Period(s), no interest shall be due and payable.  No Extension Period shall end on a date other
than an Interest Payment Date, and no Extension Period shall extend beyond the
Stated Maturity of the principal of this Security.  No interest shall be due and payable during
an Extension Period, except at the end thereof. 
At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid on this Security.  Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest; provided that (i) all such previous and further
extensions comprising such Extension Period do not exceed four (4) Interest
Periods, (ii) no Extension Period shall end on a date other than an
Interest Payment Date and (iii) no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security.  Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension Period; provided that (i) such Extension Period, together with
any previously exercised Extension Periods, does not exceed four (4) Interest
Periods, (ii) no Extension Period shall end on a date other than an
Interest Payment Date and (iii) no Extension Period shall extend beyond
the Stated Maturity of the principal of this Security.  The Company shall notify in writing the
Trustee and the Holders of the Securities, at the applicable notice addresses
set forth in the Indenture, in writing, that it elects to defer the payment of
interest and begin any such Extension Period as provided herein, at least
thirty (30) days’ prior to the commencement of the applicable Extension Period.


 


In
addition to the foregoing, for any Interest Period commencing during the 2009
calendar year (the “Deferral Period”),
the Company shall have a one-time right, for a single Interest Period during
such Deferral Period to elect to pay interest on the principal amount hereof at
a fixed rate equal to the Deferred Rate and to defer payment of interest equal
to the difference between the then applicable Fixed Rate and the Deferred Rate
until the immediately succeeding Interest Payment Date, provided that (a) no
default has occurred and is continuing at the time of such election or at any
time during such Deferral Period and (b) one or more holders of any Senior
Debt of the Company shall have delivered written notice to the Company that it
requires deferral of a portion of the interest payable on the Securities,
notice of which has been delivered by the Company to the Trustee and the
Holders of the Securities. The Company shall notify the Trustee and the Holders
of the Securities, at the applicable notice addresses set forth in the
Indenture, in writing, at least thirty (30) days prior to the applicable
Interest Payment Date that it elects to pay the Deferred Rate.


 


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


 


16
















 


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


 


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


 


[FORM OF
REVERSE OF SECURITY]


 


This
Security is one of a duly authorized issue of securities of the Company (the “Securities”) issued under the Junior Subordinated Indenture,
dated as of January 30, 2009 (the “Indenture”),
between the Company and The Bank of New York Mellon Trust Company, National
Association, as Trustee (in such capacity, the “Trustee,”
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt
and the Holders of the Securities and of the terms upon which the Securities
are, and are to be, authenticated and delivered.


 


All
terms used in this Security that are not defined herein shall have the meanings
assigned to them in the Indenture.


 


The
Company may, on any Interest Payment Date, at its option, upon not less than
thirty (30) days’ nor more than sixty (60) days’ written notice to the Holders
of the Securities (unless a shorter notice period shall be satisfactory to the
Trustee) and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time
to time at a Redemption Price equal to one hundred percent (100%) of the
principal amount hereof, together, in the case of any such redemption, with
accrued interest, including any Additional Interest, through but excluding the
date fixed as the Redemption Date.


 


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


 


17

















 


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


 


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


 


As provided
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is restricted to transfers to “Qualified Purchasers”
(as such term is defined in the Investment Company Act of 1940, as amended),
and is registrable in the Securities Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company maintained
for such purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar and
duly executed by, the Holder hereof or such Holder’s attorney duly authorized
in writing, and thereupon one or more new Securities, of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.


 


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


 


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


 


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


 


The
Company and, by its acceptance of this Security or a beneficial interest
herein, the Holder of, and any Person that acquires a beneficial interest in,
this Security agree that, for 


 


18

















 


United States federal, state and local tax purposes,
it is intended that this Security constitute indebtedness.


 


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


 


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


 


	
   

  	
   

  	
  GKK Capital LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


SECTION 2.2         Restricted Legend.


 


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


 


“[IF THIS
SECURITY IS A GLOBAL SECURITY INSERT: THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF
DTC.  THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.


 


UNLESS THIS SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN


 


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


 


THE SECURITIES
REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE 


 


19

















 


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


 


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


 


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


 


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


 


20

















 


TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE.”


 


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


 


SECTION 2.3         Form of Trustee’s Certificate of Authentication.


 


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


 


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


 


	
  Dated:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE BANK OF NEW
  YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in
  its individual capacity, but solely as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  Signatory

  



 


SECTION 2.4         Temporary Securities.


 


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


 


(b)           If temporary Securities are issued, the Company
will cause definitive Securities to be prepared without unreasonable
delay.  After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for that purpose without charge to the
Holder.  Upon surrender for cancellation
of any one or more temporary Securities, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of any authorized denominations having the same Original 


 


21

















 


Issue Date and Stated Maturity and having the same terms as such
temporary Securities.  Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.


 


SECTION 2.5         Definitive Securities.


 


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


 


ARTICLE
III

THE SECURITIES


 


SECTION 3.1         Payment of Principal and Interest.


 


(a)           The unpaid principal amount of the Securities shall
bear interest at the applicable Fixed Rate through the Stated Maturity; provided, however, that for any Interest Period commencing
during the Deferral Period, the Company shall have a one-time right, for a
single Interest Period to elect to pay interest on the principal amount hereof
at a fixed rate equal to the Deferred Rate and to defer payment of interest
equal to the difference between the then applicable Fixed Rate and the Deferred
Rate until the immediately succeeding Interest Payment Date, provided, that (a) no default has occurred and is
continuing at the time of such election or at any time during such Deferral
Period and (b) one or more holders of any Senior Debt of the Company shall
have delivered written notice to the Company that it requires deferral of a
portion of the interest payable on the Securities, notice of which has been
delivered by the company to the Trustee and the Holders of the Securities as
provided herein.  Any overdue principal,
premium, if any, and any overdue installment of interest shall bear Additional
Interest at a fixed rate equal to the applicable Fixed Rate in effect during
the period in which such amount accrues interest, compounded quarterly from the
dates such amounts are due until they are paid or funds for the payment thereof
are made available for payment.


 


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


 


(c)           Any
interest on any Security that is due and payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities (herein called “Defaulted Interest”) shall forthwith cease to be payable to
the registered Holder on the relevant Regular Record Date 


 


22

















 


by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in paragraph (i) or (ii) below:


 


(i)            The Company may elect to make
payment of any Defaulted Interest to the Persons in whose names the Securities
(or their respective Predecessor Securities) are registered at the close of
business on a special record date for the payment of such Defaulted Interest (a
“Special Record Date”), which shall be
fixed in the following manner.  At least
thirty (30) days prior to the date of the proposed payment, the Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest.  Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest, which shall be not more
than fifteen (15) days and not less than ten (10) days prior to the date
of the proposed payment and not less than ten (10) days after the receipt
by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class, postage prepaid, to
each Holder of a Security at the address of such Holder as it appears in the
Securities Register not less than ten (10) days prior to such Special
Record Date.  Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities (or their respective Predecessor Securities) are
registered on such Special Record Date; or


 


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


 


(d)           Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. 
The amount of  interest payable
shall be computed and paid on the basis of a 360-day year of twelve 30-day
months and the amount payable for any partial period shall be computed on the
basis of the number of days elapsed in the relevant interest period.


 


(e)           Payment
of principal of, premium, if any, and interest on the Securities shall be made
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.  Payments of principal, premium, if any, and
interest due at the Maturity of such Securities shall be made at the Place of Payment
upon surrender of such Securities to the Paying Agent and payments of interest
shall be made subject 


 


23

















 


to such surrender where applicable, by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing to the Paying Agent at least ten (10) Business
Days prior to the date for payment by the Person entitled thereto unless proper
written transfer instructions have not been received by the relevant record
date, in which case such payments shall be made by check mailed to the address
of such Person as such address shall appear in the Security Register.


 


(f)            The
parties hereto acknowledge and agree that the Holders of the Securities have
certain rights to direct the Company to modify the Interest Payment Dates and
corresponding Redemption Date and Stated Maturity of the Securities or a
portion of the Securities pursuant to the Exchange Agreement.  In the event any such modifications are made to
the Securities or a portion of the Securities, appropriate changes to the form
of Security set forth in Article II hereof shall be made prior to the
issuance and authentication of new or replacement Securities.  Any such modification of the Interest Payment
Date and corresponding Redemption Date and Stated Maturity with respect to any
Securities or tranche of Securities shall not require or be subject to the
consent of the Trustee.


 


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


 


(h)           Notwithstanding the foregoing, so long as no Event
of Default has occurred and is continuing, the Company shall have the right, at
any time and from time to time during the term of this Security, to defer the
payment of interest on the Securities for a period of up to four (4) consecutive
Interest Periods (each such period, an “Extension Period”),
during which Extension Period(s), the Company shall have the right to make no
payments or partial payments of interest on any Interest Payment Date.  No Extension Period shall end on a date other
than an Interest Payment Date and no Extension Period shall extend beyond the
Stated Maturity of the principal of the Securities.  No interest shall be due and payable during
an Extension Period, except at the end thereof. 
At the end of any such Extension Period, the Company shall pay all
interest then accrued and unpaid on the Securities.  Prior to the termination of any such
Extension Period, the Company may extend such Extension Period and further
defer the payment of interest; provided that (i) all
such previous and further extensions comprising such Extension Period do not
exceed a total of four (4) Interest Periods, (ii) no Extension Period
shall end on a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities.  Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest then due on any Interest Payment Date, the Company may elect to begin
a new Extension Period; provided that (i) such
Extension Period, together with any previously exercised Extension Periods,
does not exceed four (4) Interest Periods, (ii) no Extension Period
shall end on a date other than an Interest Payment Date and (iii) no
Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities.  The Company shall notify
in writing the Trustee and the Holders of the Securities, at the applicable
notice addresses set forth in the Indenture, that it elects to defer the
payment of interest as provided herein and begin any such Extension Period, at
least thirty (30) days’ prior to the commencement of the applicable Extension
Period.


 


24
















 


SECTION 3.2         Denominations.


 


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


 


SECTION 3.3         Execution, Authentication, Delivery and Dating.


 


(a)           At any time and from time to time after the
execution and delivery of this Indenture, the Company may deliver Securities in
an aggregate principal amount (including all then Outstanding Securities) not
in excess of One Hundred Fifty Million (150,000,000) executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.  In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon:


 


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


 


(ii)           an Opinion of Counsel stating that: (1) such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute, and the Indenture constitutes, valid and legally
binding obligations of the Company, each enforceable in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; (2) the Securities
have been duly authorized and executed by the Company and have been delivered
to the Trustee for authentication in accordance with this Indenture; (3) the
Securities are not required to be registered under the Securities Act; and (4) the
Indenture is not required to be qualified under the Trust Indenture Act.


 


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


 


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


 


25

















 


Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.


 


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


 


SECTION 3.4         Global Securities.


 


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


 


(b)           Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part for
registered Securities, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary advises
the Trustee and the Company in writing that such Depositary is no longer
willing or able to properly discharge its responsibilities as Depositary with
respect to such Global Security, and no qualified successor is appointed by the
Company within ninety (90) days of receipt by the Company of such notice, (ii) such
Depositary ceases to be a clearing agency registered under the Exchange Act and
no successor is appointed by the Company within ninety (90) days after
obtaining knowledge of such event, (iii) the Company executes and delivers
to the Trustee a Company Order stating that the Company elects to terminate the
book-entry system through the Depositary or (iv) an Event of Default shall
have occurred and be continuing.  Upon
the occurrence of any event specified in clause (i), (ii), (iii) or (iv) above,
the Trustee shall notify the Depositary and instruct the Depositary to notify
all owners of beneficial interests in such Global Security of the occurrence of
such event and of the availability of Securities to such owners of beneficial
interests requesting the same.  The
Trustee may conclusively rely, and be protected in relying, upon the written
identification of the owners of beneficial interests furnished by the
Depositary, and shall not be liable for any delay resulting from a delay by the
Depositary.  Upon the issuance of such
Securities and the registration in the Securities Register of such Securities
in the names of the Holders of the beneficial interests therein, the Trustees
shall recognize such holders of beneficial interests as Holders.


 


(c)           If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security, then either (i) such
Global Security shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to (x) the
portion thereof to be so exchanged or canceled, or (y) the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records.  Upon any such surrender or
adjustment of a Global Security by the Depositary, 


 


26

















 


accompanied by registration instructions, the Company shall execute and
the Trustee shall authenticate and deliver any Securities issuable in exchange
for such Global Security (or any portion thereof) in accordance with the
instructions of the Depositary.  The
Trustee shall not be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be fully protected in relying on, such
instructions.


 


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


 


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


 


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


 


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


 


SECTION 3.5         Registration, Transfer and Exchange Generally.


 


(a)           The Trustee shall cause to be kept at the Corporate
Trust Office a register (the “Securities Register”)
in which the registrar and transfer agent with respect to the Securities (the “Securities Registrar”), subject to such reasonable
regulations as it may prescribe, shall provide 


 


27

















 


for the registration of Securities and of transfers and exchanges of
Securities.  The Trustee shall at all
times also be the Securities Registrar. 
The provisions of Article VI shall apply to the Trustee in
its role as Securities Registrar.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 3.6         Mutilated Destroyed, Lost and Stolen Securities.


 


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


 


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


 


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


 


(d)           Upon the issuance of any new Security under this Section 3.6,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.


 


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


 


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


 


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SECTION 3.7         Persons Deemed Owners.


 


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


 


SECTION 3.8         Cancellation.


 


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


 


SECTION 3.9         Reserved.


 


SECTION 3.10       Reserved.


 


SECTION 3.11       Agreed Tax Treatment.


 


                Each Security issued hereunder
shall provide that the Company and, by its acceptance or acquisition of a
Security or a beneficial interest therein, the Holder of, and any Person that
acquires a direct or indirect beneficial interest in, such Security, intend and
agree to treat such Security as indebtedness of the Company for United States
Federal, state and local tax purposes. 
The provisions of this Indenture shall be interpreted to further this
intention and agreement of the parties.


 


SECTION 3.12       CUSIP Numbers.


 


The Company
in issuing the Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption and
other similar or related materials as a convenience to Holders; provided that any such notice or other materials may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.


 


30

















 


ARTICLE
IV



SATISFACTION AND DISCHARGE


 


SECTION 4.1         Satisfaction and Discharge of Indenture.


 


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


 


(a)           either


 


(i)            all Securities theretofore
authenticated and delivered (other than (A) Securities that have been
mutilated, destroyed, lost or stolen and that have been replaced or paid as
provided in Section 3.6 and (B) Securities for whose payment
money has theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from such
trust as provided in Section 11.2) have been delivered to the
Trustee for cancellation; or


 


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


 


(A)          have become due and payable, or


 


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


 


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


 


and the Company, in the
case of subclause (ii)(A), (B) or (C) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose (x) an
amount in the currency or currencies in which the Securities are payable, (y) Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount or (z) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest (including any Additional Interest) to
the date of such deposit (in the case of Securities that have become due and payable)
or to the Stated Maturity (or any date of principal repayment upon early
maturity) or Redemption Date, as the case may be;


 


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


 


31

















 


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


 


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


 


SECTION 4.2         Application of Trust Money.


 


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


 


ARTICLE
V



REMEDIES


 


SECTION 5.1         Events of Default.


 


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


 


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


 


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


 


(c)           except as otherwise provided in this Section 5.1,
default in the performance, or breach, of any covenant or warranty in any
material respect of the Company in this Indenture or the Exchange Agreement and
continuance of such default or breach for a period of thirty (30) days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Outstanding Securities
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;


 


32

















 


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


 


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


 


(f)            default in the performance or breach of any
covenant or warranty of the Company set forth in Sections 10.5 and 10.6
and continuance of such default or breach for a period of fifteen (15) days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Outstanding Securities
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder.


 


SECTION 5.2         Acceleration of Maturity; Rescission and Annulment.


 


(a)           If
an Event of Default occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than twenty five percent (25%) in aggregate
principal amount of the Outstanding Securities may declare the principal amount
of all the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such
declaration the principal amount of and the accrued interest (including any
Additional Interest) on all the Securities shall become immediately due and
payable.


 


(b)           At any time after such a declaration of
acceleration with respect to Securities has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article V, the Holders of a majority
in aggregate of principal amount of the Outstanding Securities, by written
notice to the Trustee, may rescind and annul such declaration and its
consequences if


 


(i)            the Company has paid or deposited
with the Trustee a sum sufficient to pay:


 


33
















 


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


 


(B)           any accrued Additional Interest on
all Securities,


 


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


 


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


 


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


 


No such rescission shall
affect any subsequent default or impair any right consequent thereon.


 


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


 


(a)           The Company covenants that if:


 


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


 


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


 


the Company will, upon
demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount then due and payable on such Securities for
principal and any premium and interest (including any Additional Interest) and,
in addition thereto, all amounts owing the Trustee under Section 6.6.


 


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


 


(c)           If an Event of Default with respect to Securities
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any 


 


34

















 


covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy.


 


SECTION 5.4         Trustee May File Proofs of Claim.


 


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


 


SECTION 5.5         Trustee May Enforce Claim Without Possession of Securities.


 


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


 


SECTION 5.6         Application of Money Collected.


 


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


 


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


 


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


 


THIRD:
Subject to Article XII, to the payment of the amounts then due and
unpaid upon the Securities for principal and any premium and interest
(including any Additional Interest) in respect of which or for the benefit of
which such money has been collected, ratably, without 


 


35

















 


preference or priority of any kind, according to the
amounts due and payable on the Securities for principal and any premium and
interest (including any Additional Interest), respectively; and


 


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


 


SECTION 5.7         Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.8         Unconditional Right of Holders to Receive Principal, Premium, if any,
and Interest.


 


Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of and any premium on such Security at its Maturity and payment of
interest (including any Additional Interest) on such Security when due and
payable and to institute suit for the enforcement of any such payment, and such
right shall not be impaired without the consent of such Holder.


 


SECTION 5.9         Restoration of Rights and Remedies.


 


If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or 


 


36

















 


has been determined adversely to the Trustee or such
Holder, then and in every such case the Company, the Trustee, and such Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and such Holder shall continue as though no such
proceeding had been instituted.


 


SECTION 5.10       Rights and Remedies Cumulative.


 


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


 


SECTION 5.11       Delay or Omission Not Waiver.


 


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


 


SECTION 5.12       Control by Holders.


 


The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided
that:


 


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


 


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


 


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


 


SECTION 5.13       Waiver of Past Defaults.


 


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


 


37

















 


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


 


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


 


(b)           Any such waiver shall be deemed to be on behalf of
the Holders of all the Outstanding Securities.


 


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


 


SECTION 5.14       Undertaking for Costs.


 


All
parties to this Indenture agree, and each Holder of any Security by his or her
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.14 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent (10%) in aggregate
principal amount of the Outstanding Securities, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or any
premium on the Security after the Stated Maturity or any interest (including
any Additional Interest) on any Security after it is due and payable.


 


SECTION 5.15       Waiver of Usury, Stay or Extension Laws.


 


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


 


38

















 


ARTICLE
VI



THE TRUSTEE


 


SECTION 6.1         Corporate Trustee Required.


 


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


 


SECTION 6.2         Certain Duties and Responsibilities.


 


(a)           Except during the continuance of an Event of
Default:


 


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


 


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


 


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


 


(c)           Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.  Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.2. 
To the 


 


39

















 


extent that, at law or in equity, the Trustee has duties and
liabilities relating to the Holders, the Trustee shall not be liable to any
Holder for the Trustee’s good faith reliance on the provisions of this
Indenture.  The provisions of this
Indenture, to the extent that they restrict the duties and liabilities of the
Trustee otherwise existing at law or in equity, are agreed by the Company and
the Holders to replace such other duties and liabilities of the Trustee.


 


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


 


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


 


(ii)           the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of at least a majority in
aggregate principal amount of the Outstanding Securities; and


 


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


 


SECTION 6.3         Notice of Defaults.


 


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


 


SECTION 6.4         Certain Rights of Trustee.


 


Subject
to the provisions of Section 6.2:


 


(a)           the Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith and in
accordance with the terms hereof upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;


 


40

















 


(b)           if (i) in performing its duties under this
Indenture the Trustee is required to decide between alternative courses of
action, (ii) in construing any of the provisions of this Indenture the
Trustee finds ambiguous or inconsistent with any other provisions contained
herein or (iii) the Trustee is unsure of the application of any provision
of this Indenture, then, except as to any matter as to which the Holders are
entitled to decide under the terms of this Indenture, the Trustee shall deliver
a notice to the Company requesting the Company’s written instruction as to the
course of action to be taken and the Trustee shall take such action, or refrain
from taking such action, as the Trustee shall be instructed in writing to take,
or to refrain from taking, by the Company; provided, that
if the Trustee does not receive such instructions from the Company within ten (10) Business
Days after it has delivered such notice or such reasonably shorter period of
time set forth in such notice the Trustee may, but shall be under no duty to,
take such action, or refrain from taking such action, as the Trustee shall deem
advisable and in the best interests of the Holders, in which event the Trustee
shall have no liability except for its own negligence, bad faith or willful
misconduct;


 


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


 


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


 


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


 


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


 


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


 


(h)           whenever in the administration of this Indenture
the Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action with respect to
enforcing any remedy or right hereunder, the Trustee (i) may request 


 


41

















 


instructions from the Holders (which instructions may only be given by
the Holders of the same aggregate principal amount of Outstanding Securities as
would be entitled to direct the Trustee under this Indenture in respect of such
remedy, right or action), (ii) may refrain from enforcing such remedy or
right or taking such action until such instructions are received and (iii) shall
be protected in acting in accordance with such instructions;


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.5         May Hold Securities.


 


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


 


SECTION 6.6         Compensation; Reimbursement; Indemnity.


 


(a)           The Company agrees:


 


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


 


42

















 


(ii)           to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence, bad faith or willful misconduct; and


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.7         Resignation and Removal; Appointment of Successor.


 


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


 


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


 


43
















 


(c)           The
Trustee may be removed by the Act of the Holders of at least a majority in
aggregate of principal amount of the Outstanding Securities, delivered to the
Trustee and the Company.


 


(d)           If
the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any reason, the Holders of the
Outstanding Securities shall promptly appoint a successor Trustee, and such
successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 6.8. 
If no successor Trustee shall have been so appointed by the Holders and
accepted appointment within sixty (60) days after the giving of a notice of
resignation by the Trustee or the removal of the Trustee in the manner required
by Section 6.8, any Holder who has been a bona fide Holder of a Security
for at least six months (or, if the Securities have been Outstanding for less
than six (6) months, the entire period of such lesser time) may, on behalf
of such Holder and all others similarly situated, and any resigning Trustee
may, at the expense of the Company, petition any court of competent
jurisdiction for the appointment of a successor Trustee.


 


SECTION 6.8         Acceptance of Appointment by Successor.


 


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


 


(b)           Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (a) of this Section 6.8.


 


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


 


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


 


Any
Person into which the Trustee may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided, that such Person shall be
otherwise qualified and eligible under this Article VI.  In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation or as otherwise provided above in this Section 6.9
to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated, 


 


44

















 


and in case any Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the full
force which it is provided anywhere in the Securities or in this Indenture that
the certificate of the Trustee shall have.


 


SECTION 6.10       Not Responsible for Recitals or Issuance of Securities.


 


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


 


SECTION 6.11       Appointment of Authenticating Agent.


 


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


 


(b)           Any Person into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Person succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such Person
shall be otherwise eligible under this Section 6.11, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.


 


45

















 


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


 


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


 


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


 


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


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK MELLON TRUST

  COMPANY, NATIONAL ASSOCIATION, not in

  its individual capacity, but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating
  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 


ARTICLE
VII



HOLDER’S LISTS AND REPORTS BY COMPANY


 


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


 


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


 


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


 


46

















 


(b)           at such other times as the Trustee may request in
writing, within thirty (30) days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than fifteen
(15) days prior to the time such list is furnished,


 


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


 


SECTION 7.2         Preservation of Information, Communications to Holders.


 


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


 


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


 


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


 


SECTION 7.3         Reports by Company.


 


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


 


(b)           The
Company shall furnish to each of (i) the Trustee, (ii) the Holders
and to subsequent holders of Securities, (iii) Taberna Capital Management,
LLC, 450 Park Avenue, New York, New York 10022, Attn:  Raphael Licht (or such other address as
designated by Taberna Capital Management, LLC) and (iv) any beneficial
owner of the Securities reasonably identified to the Company (which
identification may be made either by such beneficial owner or by Taberna
Capital Management, LLC), a duly completed and executed certificate
substantially and substantively in the form attached hereto as Exhibit A,
including the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the Company not
later than forty-five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and not later than ninety (90) days
after the end of each fiscal year of the Company.


 


(c)           If the Company intends to file its annual and
quarterly information with the Securities and Exchange Commission (the “Commission”)
in electronic form pursuant to Regulation S-T of the Commission using the
Commission’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”)
system, the Company shall notify the Trustee in the manner prescribed herein of
each such annual and quarterly filing. 
The Trustee is hereby authorized and 


 


47

















 


directed to access the EDGAR system for purposes of retrieving the
financial information so filed. 
Compliance with the foregoing shall constitute delivery by the Company
of its financial statements to the Trustee in compliance with the provisions of
Section 314(a) of the Trust Indenture Act, if applicable.  The Trustee shall have no duty to search for
or obtain any electronic or other filings that the Company makes with the
Commission, regardless of whether such filings are periodic, supplemental or
otherwise.  Delivery of reports,
information and documents to the Trustee pursuant to this Section 7.3(c) shall
be solely for purposes of compliance with this Section 7.3(c) and,
if applicable, with Section 314(a) of the Trust Indenture Act.  The Trustee’s receipt of such reports,
information and documents shall not constitute notice to it of the content
thereof or any matter determinable from the content thereof, including the
Company’s compliance with any of its covenants hereunder, as to which the
Trustee is entitled to rely upon Officers’ Certificates.


 


ARTICLE
VIII



CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


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


 


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


 


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


 


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


 


(c)           the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction have been
complied with; and the Trustee may rely upon such Officers’ Certificate and
Opinion of Counsel as conclusive evidence that such transaction complies with
this Section 8.1.


 


48

















 


SECTION 8.2         Successor Company Substituted.


 


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


 


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


 


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


 


ARTICLE
IX



SUPPLEMENTAL INDENTURES


 


SECTION 9.1         Supplemental Indentures without Consent of Holders.


 


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


 


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


 


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


 


49

















 


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


 


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


 


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


 


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


 


SECTION 9.2         Supplemental Indentures with Consent of Holders.


 


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


 


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


 


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


 


(iii)          modify any of the provisions of this Section 9.2,
Section 5.13 or Section 10.7, except to increase any
percentage in aggregate principal amount of the Outstanding Securities, the
consent of whose Holders is required for any reason, or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Security;


 


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


 


SECTION 9.3         Execution of Supplemental Indentures.


 


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


 


SECTION 9.4         Effect of Supplemental Indentures.


 


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


 


SECTION 9.5         Reference in Securities to Supplemental Indentures.


 


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


 


ARTICLE
X



COVENANTS


 


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


 


The
Company covenants and agrees for the benefit of the Holders of the Securities
that it will duly and punctually pay the principal of and any premium and
interest (including any Additional Interest) on the Securities in accordance
with the terms of the Securities and this Indenture.


 


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


 


(a)           Whenever the Company shall have one or more Paying
Agents, it will, prior to 10:00 a.m., New York City time, on each due date
of the principal of or any premium or interest 


 


51

















 


(including any Additional Interest) on any Securities, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure so to act.


 


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


 


(c)           The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the
Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.


 


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


 


SECTION 10.3       Statement as to Compliance.


 


The
Company shall deliver to the Trustee, within one hundred twenty (120) days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers’ Certificate covering the preceding calendar year, stating whether
or not to the knowledge of the signers thereof the Company is in default in the
performance or observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement 


 


52

















 


of notice provided hereunder), and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge. 
The delivery requirements of this Section 10.3 may be satisfied by
compliance with Section 8.16(a) of the Trust Agreement.


 


SECTION 10.4       Company Status.


 


The Company presently
qualifies, and agrees at all times to qualify as a real estate operating company that does not satisfy the requirements
of Sections 856 through 860 of the Internal Revenue Code of 1986, as
amended.


 


SECTION 10.5       Inspection of Books and Records; Management and Board Observation
Rights.


 


Until January 30,
2012, the Company shall permit Taberna Capital Management, LLC upon written
request delivered at least three (3) Business Days prior to the applicable
date to examine the books and records of account of the Company and its
Subsidiaries and to discuss the affairs, finances and accounts of such Persons
with, and to be advised as to the same by management representatives of the
Company and its Subsidiaries as Taberna Capital Management, LLC reasonably
requests, either in person at the Company’s offices or telephonically, all at
reasonable times and intervals during normal business hours at the expense of
the Company.


 


SECTION 10.6       Additional Covenants.


 


(a)           The Company covenants and agrees with each Holder
of Securities that during (i) calendar year 2009, (ii) any Extension
Period and/or (iii) any other period in which an Event of Default shall
have occurred and be continuing, it shall not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any units of the Company’s limited
partnership interests, (ii) vote in favor of or permit or otherwise allow
any of its subsidiaries to declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, or
otherwise retire, any shares of any subsidiary’s preferred stock (for the
avoidance of doubt, whether such preferred stock is perpetual or otherwise); or
(iii) make any payment of principal of or any interest or premium, if any,
on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Securities (other
than (A) repurchases, redemptions or other acquisitions of units of
limited partnership interests of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, in connection
with a dividend, reinvestment or limited partnership interests purchase plan or
in connection with the issuance of limited partnership interests of the Company
(or securities convertible into or exercisable for such units of limited
partnership interests) as consideration in an acquisition transaction entered
into prior to an Event of Default or the applicable Extension Period, (B) as
a result of an exchange or conversion of any class or series of the Company’s
limited partnership interests (or any capital stock or other limited
partnership interests of a Subsidiary of the Company) for any class or series
of the Company’s limited partnership interests or of any class or series of the
Company’s indebtedness for any class or series of the Company’s limited
partnership interests,


 


53

















 


(C) the purchase of fractional interests in the Company’s limited
partnership interests pursuant to the conversion or exchange provisions of such
limited partnership interests or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, limited partnership interests or other property under the Rights Plan
or the redemption or repurchase of rights pursuant thereto or (E) any
dividend in the form of limited partnership interests, warrants, options or other
rights where the dividend, or limited partnership interests issuable upon
exercise of such warrants, options or other rights is the same limited
partnership interests as that on which the dividend is being paid or ranks pari
passu with or junior to such limited partnership interests).


 


(b)           Notwithstanding Section 10.6(a), the
Company is permitted to (i) make distributions to holders of its Class B
units of limited partnership (the “Class B Units”)
pursuant to and in accordance with the terms of the Agreement of Limited
Partnership of the Company (in the form such Agreement of Limited Partnership
presently exists) and (ii) redeem or repurchase the Class B Units in
connection with any internalization transaction whereby the parent of the
Company becomes an internally managed entity.


 


SECTION 10.7       Waiver of Covenants.


 


The
Company may omit in any particular instance to comply with any covenant or
condition contained in Sections 10.5 and 10.6 if, before or after the
time for such compliance, the Holders of at least a majority in aggregate of
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance
with such covenant or condition, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company in respect
of any such covenant or condition shall remain in full force and effect.


 


SECTION 10.8       Treatment of Securities.


 


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


 


ARTICLE
XI



REDEMPTION OF SECURITIES


 


SECTION 11.1       Optional Redemption.


 


The
Company may, at its option, on any Interest Payment Date redeem the Securities
in whole at any time, or in part from time to time, at a Redemption Price equal
to one hundred percent (100%) of the principal amount thereof (or of the
redeemed portion thereof, as applicable), together, in the case of any such
redemption, with accrued and unpaid interest,


 


54

















 


including any Additional Interest, through but
excluding the date fixed as the Redemption Date (the “Optional
Redemption Price”), provided, that
any redemption in part must be in at least $25,000,000 increments, to be
applied to the Securities on a pro-rata basis unless otherwise agreed in the
sole discretion of the Holders.


 


SECTION 11.2       Reserved.


 


SECTION 11.3       Election to Redeem; Notice to Trustee.


 


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


 


SECTION 11.4       Selection of Securities to be Redeemed.


 


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


 


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


 


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


 


55

















 


SECTION 11.5       Notice of Redemption.


 


(a)           Notice of redemption shall be given not later than
the thirtieth (30th)
day, and not earlier than the sixtieth (60th) day, prior to the Redemption Date to each Holder of
Securities to be redeemed, in whole or in part.


 


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


 


(i)            the Redemption Date;


 


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


 


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


 


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


 


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


 


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


 


SECTION 11.6       Deposit of Redemption Price.


 


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


 


56

















 


SECTION 11.7       Payment of Securities Called for Redemption.


 


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


 


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


 


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


 


ARTICLE
XII



SUBORDINATION OF SECURITIES


 


SECTION 12.1       Securities Subordinate to Senior Debt.


 


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


 


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


 


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


 


57

















 


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


 


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


 


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


 


58
















 


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


 


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


 


SECTION 12.3       Payment Permitted If No Default.


 


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


 


SECTION 12.4       Subrogation to Rights of Holders of Senior Debt.


 


Subject
to the payment in full of all amounts due or to become due on all Senior Debt,
or the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this Article XII
(equally and ratably with the holders of all indebtedness of the Company that
by its express terms is subordinated to Senior Debt of the Company to
substantially the same extent as the Securities are subordinated to the Senior
Debt and is entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of and any premium
and interest (including any Additional Interest) on the Securities shall be
paid in full.  For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article XII,
and no payments made pursuant to the provisions of this Article XII
to the holders of Senior Debt by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior Debt,
and the Holders of the Securities, be deemed to be a payment or distribution by
the Company to or on account of the Senior Debt.


 


SECTION 12.5       Provisions Solely to Define Relative Rights.


 


The
provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Debt 


 


59

















 


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


 


SECTION 12.6       Trustee to Effectuate Subordination.


 


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


 


SECTION 12.7       No Waiver of Subordination Provisions.


 


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


 


(b)           Without in any way limiting the generality of
paragraph (a) of this Section 12.7, the holders of Senior Debt
may, at any time and from to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to
such Holders of the Securities and without impairing or releasing the
subordination provided in this Article XII or the obligations
hereunder of such Holders of the Securities to the holders of Senior Debt, do
any one or more of the following: (i) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Debt, or
otherwise amend or supplement in any manner Senior Debt or any instrument
evidencing the same or any agreement under which Senior Debt is outstanding, (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt, (iii) release any Person liable in any
manner for the payment of Senior Debt and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.


 


SECTION 12.8       Notice to Trustee.


 


(a)           The Company shall give prompt written notice to a
Responsible Officer of the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the
Securities.  Notwithstanding the
provisions of this Article XII or 


 


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


 


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


 


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


 


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


 


SECTION 12.10     Trustee Not Fiduciary for Holders of Senior Debt.


 


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


 


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


 


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


 


SECTION 12.12     Article Applicable to Paying Agents.


 


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


 


****


 


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


 


****


 


62

















 


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


 


	
   

  	
  GKK CAPITAL LP

  
	
   

  	
   

  
	
   

  	
  By:
  GRAMERCY CAPITAL CORP., its general

  partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Roger M. Cozzi

  
	
   

  	
   

  	
  Name: Roger M. Cozzi

  
	
   

  	
   

  	
  Title: Chief Executive
  Officer

  



 


63

















 


	
   

  	
  The Bank of New York
  Mellon Trust Company,

  National Association, as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bill Marshall

  
	
   

  	
   

  	
  Name: Bill Marshall

  
	
   

  	
   

  	
  Title: Vice President

  



 


64

















 


Exhibit A


 


Form of Officer’s Financial Certificate


 


The
undersigned, the [Chief Financial Officer/Treasurer/Assistant Treasurer/
Secretary/ Assistant Secretary, Chairman/ViceChairman/Chief Executive
Officer/President/Vice President] hereby certifies, pursuant to Section 7.3(b) of
the Junior Subordinated Indenture, dated as of January 27, 2006 (the “Indenture”),
among GKK Capital LP (the “Company”) and The Bank of New York Mellon Trust
Company, National Association, as trustee, that, as of [date],
[20    ], the Company, if applicable, and its Subsidiary
had the following ratios and balances (unless otherwise indicated, capitalized
terms used herein have the meaning set forth in the Indenture):


 


As of [Quarterly/Annual
Financial Date], 20    


 


	
  Senior secured
  indebtedness for borrowed money (“Debt”)

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Senior unsecured Debt

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subordinated Debt

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Debt

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
   

  	
  %

  



 


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


 


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


 


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


 


65

















 


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


 


	
   

  	
  GKK CAPITAL LP

  
	
   

  	
   

  
	
   

  	
  By:
  GRAMERCY CAPITAL CORP., its general

  partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GKK Capital LP

  
	
   

  	
  420 Lexington Avenue

  
	
   

  	
  New York, NY 10170

  
	
   

  	
  (212) 297-1000

  



 


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