EXHIBIT
4.1


 


SENIOR
SUBORDINATED PROMISSORY NOTE


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS
OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.


 


AT ALL TIMES AFTER THE
EXECUTION OF AN INTERCREDITOR AGREEMENT (BUT IN NO EVENT PRIOR THERETO), THIS
NOTE AND THE INDEBTEDNESS EVIDENCED HEREBY WILL BE SUBORDINATED IN THE MANNER
AND TO THE EXTENT SET FORTH IN THE INTERCREDITOR AGREEMENT AND EACH HOLDER OF
THIS NOTE, BY ITS ACCEPTANCE HEREOF, SHALL BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT AT ALL TIMES AFTER THE 
EXECUTION THEREOF.


 


SECURITY
CAPITAL CORPORATION


 


10%-16% SENIOR
SUBORDINATED PROMISSORY NOTE

DUE SEPTEMBER 30, 2008


 


	
  $30,000,000.00

  	
   

  	
  New York, New
  York

  
	
   

  	
   

  	
  January 14,
  2004

  



 


FOR VALUE RECEIVED, the
undersigned, SECURITY CAPITAL CORPORATION, a Delaware corporation (“Company”), hereby
promises to pay to the order of J.H. Whitney Mezzanine Fund, L.P., a Delaware
limited partnership (“WMF”), or its registered assigns (the “Holder”), the
principal sum of THIRTY MILLION DOLLARS ($30,000,000.00) on September 30,
2008 (the “Maturity Date”),
with interest thereon from time to time as provided herein.


 


1.               Purchase
Agreement.  This Senior Subordinated
Promissory Note (the “Note”) is issued by the Company, on the date hereof,
pursuant to the Securities Purchase Agreement (the “Purchase Agreement”), dated as of the date
hereof by and between the Company and WMF, and is subject to the terms
thereof.  This Note, together with all
promissory notes issued pursuant to paragraph 12 hereof are hereinafter
referred to as the “Notes.”  The Holder is entitled to the benefits of
this Note and the Purchase Agreement, as it relates to the Note, and may
enforce the agreements of the Company contained herein and therein and exercise
the remedies provided for hereby and thereby or otherwise available in respect
hereto and thereto.  Capitalized terms
used


 

















 


herein without definition
are used herein with the meanings ascribed to such terms in the Purchase
Agreement.


 


2.               Interest.  The Company promises to pay interest (“Interest”) on the
principal amount of this Note at the rate of (i) until the earlier of (x)
September 30, 2004 and (y) the completion of the Transaction (such earlier
date, the “Reset Date”),
10% per annum and (ii) thereafter, 16% (the “Interest Rate”).  Such Interest shall be payable as specified below.  Interest on this Note shall accrue from and
including the date of issuance through and until repayment of the principal
amount of this Note and payment of all Interest in full, and shall be computed
on the basis of a 360-day year of twelve 30-day months.  If the Company is required to withhold or
deduct any amount from any interest payment under the Note in respect of Taxes,
the Company shall withhold or deduct such amount, pay it to the appropriate
government authority and tender the Holder of the Note appropriate evidence of
such payment.  Any amounts so withheld
or deducted by the Company shall be treated as paid to the Holder for all purposes
of this Note and the Purchase Agreement. 
Interest shall be paid as follows:


 


(a)                                  Basic
Interest.  The Company shall pay
interest (the “Basic Interest”)
on the principal amount of this Note in cash at the rate of, until the Reset
Date, 10% per annum, and thereafter, 12% per annum (the “Basic Interest Rate”).  Such payments shall be made quarterly on
each March 31, June 30, September 30 and December 31 of
each year or, if any such date shall not be a Business Day, on the next
succeeding Business Day to occur after such date (each date upon which interest
shall be so payable, an “Interest Payment Date”), beginning on March 31,
2004, by wire transfer of immediately available funds to an account at a bank
designated in writing by the Holder.  In
the absence of any such written designation, any such Interest payment shall be
deemed made on the date a check in the applicable amount payable to the order
of Holder is received by the Holder at its last address as reflected in the
Company’s note register; if no such address appears, then to such Holder in
care of the last address in such note register of any predecessor holder of
this Note (or its predecessor).


 


(b)                                 PIK
Interest.  After the Reset Date, the
Company shall pay interest (“PIK Interest”) on the principal amount of this Note at a
rate of 4% per annum (the “PIK Interest Rate”), by delivery to the Holder, by a
date no later than each Interest Payment Date, of an additional promissory note
(each a “PIK Note”)
having an aggregate principal amount equal to the accrued but unpaid PIK
Interest on this Note (and the amount of accrued but unpaid PIK Interest on any
previously delivered PIK Notes) and otherwise having substantially identical
terms to this Note (including, with respect to the Interest Rate).  Interest (which, for the avoidance of doubt,
includes both Basic Interest and PIK Interest) on each PIK Note shall accrue
from the Interest Payment Date in respect of which such additional PIK Note was
issued until repayment of the principal and payment of all accrued interest in
full.  If for any reason one or more PIK
Notes shall not be delivered in accordance herewith, Interest shall accrue on
this Note such that the aggregate Interest due and payable on the Maturity Date
and on each Interest Payment Date would be the same as if all PIK Notes not issued
had been issued, and the principal payable on the Maturity Date with respect to
this Note shall be an amount equal to the sum of the principal outstanding
hereunder and the aggregate principal which would be outstanding if the PIK
Notes not issued had been issued.


 

















 


(c)                                  Default
Rate of Interest.  Notwithstanding
the foregoing provisions of this Section 2, but subject to applicable law,
any overdue principal of and overdue Interest on this Note shall bear interest,
payable on demand in immediately available funds, for each day from the date
payment thereof was due to the date of actual payment, at a rate equal to the
sum of (i) the then applicable Interest Rate, and (ii) an additional
2% per annum, and, upon and during the occurrence of an Event of Default (as
hereinafter defined), this Note shall bear interest, from the date of the
occurrence of such Event of Default until such Event of Default is cured or
waived, payable on demand in immediately available funds, at a rate equal to
the sum of (i) the Interest Rate then applicable, and (ii) an
additional 2% per annum.  Subject to
applicable law, any interest that shall accrue on overdue interest on this Note
as provided in the preceding sentence and shall not have been paid in full on
or before the next Interest Payment Date to occur after the date on which the
overdue interest became due and payable shall itself be deemed to be overdue
interest on this Note to which the preceding sentence shall apply.


 


(d)                                 Calculation
of Interest.  Basic Interest shall
be computed at all times without regard to PIK Interest or the PIK Interest
Rate.  PIK Interest shall be computed at
all times without regard to Basic Interest or the Basic Interest Rate.


 


(e)                                  No
Usurious Interest.  The rate of
interest payable on this Note or other amount shall in no event exceed the
maximum rate permissible under Requirements of Law.  If the rate of interest payable on this Note or other amount is
ever reduced as a result of this Section and at any time thereafter the
maximum rate permitted by Requirements of Law shall exceed the rate of interest
provided for in this Note, then the rate provided for in this Note shall be
increased to the maximum rate provided by Requirements of Law for such period
as is required so that the total amount of interest received by the Holder is
that which would have been received by the Holder but for the operation of the
first sentence of this Section.  Any
payment by the Company of any interest amount in excess of that permitted by
law shall be considered a mistake, with the excess being applied to the
principal amount of this Note without prepayment premium or penalty; if no such
principal amount is outstanding, such excess shall be returned to Company.


 


3.               Mandatory
Prepayment/Redemption.


 


(a)                                  Qualified
Public Offering.  Upon the
consummation of a Qualified Public Offering, the Company shall, at the election
of each Holder, prepay the then outstanding principal amount of each Holder’s
Note in accordance with the redemption prices (the “Mandatory Redemption Prices”) set forth below
(expressed as a percentage of the then outstanding principal amount of the
Note(s)), together with Interest accrued thereon through the date of such
prepayment, and reasonable out-of-pocket costs and expenses (including,
reasonable fees, charges and disbursements of counsel), if any, associated with
such prepayment. If the consummation of a Qualified Public Offering shall occur
during the consecutive 12-month period immediately preceding January 14 of
the calendar year set forth below, the Mandatory Redemption Price shall be
determined based upon the percentage of the outstanding principal amount of the
Note(s) which corresponds to the period in question, as provided below.


 


	
  Period

  	
   

  	
  Mandatory
  Redemption Price

  	
   

  
	
  2005

  	
   

  	
  105

  	
  %

  
	
  2006

  	
   

  	
  103

  	
  %

  
	
  2007

  	
   

  	
  101

  	
  %

  
	
  Thereafter

  	
   

  	
  100

  	
  %

  



 

















 


The Company shall pay the
Mandatory Redemption Price, together with Interest accrued thereon, within 3
Business Days after receipt by the Company or any of its Subsidiaries of the
proceeds of such Qualified Public Offering.


 


(b)                                 Change
of Control.  Upon the occurrence of
a Change of Control, the Company shall, at the election of each Holder, prepay
the outstanding principal amount of each Holder’s Note in accordance with the
Mandatory Redemption Prices set forth above in Section 3(a), together with
interest accrued thereon through the date of such prepayment.  If the occurrence of a Change of Control
shall occur during the consecutive 12-month period immediately preceding January 14  of
the calendar year set forth above in Section 3(a), the Mandatory
Redemption price shall be determined based upon the percentage of the
outstanding principal amount of the Note(s) which corresponds to the period in
question.  The Company shall pay the
Mandatory Redemption Price, together with interest accrued thereon, within 5
Business Days after the occurrence of a Change of Control.


 


(c)                                  Notice.  The Company shall give written notice to the
Holder of any mandatory prepayment pursuant to this Section 3 at least
three (3) Business Days prior to the date of such prepayment.  Such notice shall be given in the manner
specified in Section 11.02 of the Purchase Agreement.


 


(d)                                 Failure
to Consummate the Transaction or to Satisfy Release Conditions.  If on September 30, 2004 the
Transaction shall not yet have been consummated or any of the Release
Conditions (as defined in the Cash Collateral Pledge Agreement) shall not have
been satisfied, the Company shall, at the election of each Holder, prepay the
then outstanding principal amount of each Holder’s Note at a price equal to
par, together with Interest accrued thereon through the date of such
prepayment, and reasonable out-of-pocket costs and expenses (including,
reasonable fees, charges and disbursements of counsel), if any, associated with
such prepayment.  The Company shall pay
such amount, together with Interest accrued thereon, within 3 Business Days
after receipt by the Company of the Holder’s election under this
Section 3(e).


 


(f)                                    PIK
Notes Not Delivered.  If for any
reason one or more PIK Notes shall not be delivered in accordance with
Section 2(b) of this Note, the principal amount of this Note for purposes
of calculating the amounts due pursuant to this Section 3 shall be deemed
to be the principal of this Note plus the principal of all PIK Notes not so
delivered, provided, however, that the amounts due pursuant to this
Section 3 shall not exceed the amounts due pursuant to this Section 3
which would have been payable if all PIK Notes required to be delivered in
accordance with Section 2(b) of this Note had actually been delivered.


 


4.               Optional
Prepayment/Redemption.


 


(a)                                  Upon
notice given to the Holder as provided in Section 4(b), the Company, at
its option, may prepay all or any portion of the principal amount of this Note
at any time, by paying to the Holder an amount equal to the redemption prices
(the “Optional


 

















 


Redemption Prices”) set forth below
(expressed as a percentage of the outstanding principal amount being prepaid,
from time to time) together with Interest accrued and unpaid thereon to the
date fixed for such prepayment, and reasonable out-of-pocket costs and expenses
(including, reasonable fees, charges and disbursements of counsel), if any,
associated with such prepayment, however, each prepayment of less than
the full outstanding balance of the principal amount of this Note shall be in
an aggregate principal amount of not less than $1,000,000.00, or integral
multiples of $250,000.00 in excess thereof, and; provided, further,
that unless this Note and all Notes shall be paid in full, the aggregate
principal balance of the Notes outstanding at any time shall be at least
$5,000,000.00.  If such prepayment is to
be made by the Company to the Holder before or on the Reset Date, the Optional
Redemption Price shall be 100%.  If such
prepayment is to be made by the Company to the Holder after the Reset Date and
during the consecutive 12-month period immediately preceding January 14,
of the calendar year set forth below, the Optional Redemption Price shall be
determined based upon the percentage of the then outstanding principal amount
of this Note which corresponds to the period in question:


 


	
  Period

  	
   

  	
  Optional
  Redemption Price

  	
   

  
	
  2005

  	
   

  	
  105

  	
  %

  
	
  2006

  	
   

  	
  103

  	
  %

  
	
  2007

  	
   

  	
  101

  	
  %

  
	
  Thereafter

  	
   

  	
  100

  	
  %

  



 


(b)                                 The
Company shall give written notice of prepayment of this Note, or any portion
thereof, pursuant to this Section 4 not less than 10 nor more than 60 days
prior to the date fixed for such prepayment. 
Such notice of prepayment pursuant to this Section 4 shall be given
in the manner specified in Section 11.02 of the Purchase Agreement.  Upon notice of prepayment pursuant to this
Section 4 being given by the Company, the Company covenants and agrees
that it will prepay, on the date therein fixed for prepayment, this Note or the
portion hereof so called for prepayment, at the applicable Optional Redemption
Price set forth above with respect to the outstanding principal amount of this
Note or the portion thereof so called for prepayment, together with Interest
accrued and unpaid thereon to the date fixed for such prepayment, and the costs
and expenses referred to in Section 4(a).


 


(c)                                  All
optional prepayments under this Section 4 shall include payment of accrued
Interest on the principal amount of this Note so prepaid and shall be applied
first to all costs, expenses and indemnities payable under the Purchase
Agreement, then to payment of default interest, if any, then to payment of the
Basic Interest, then to payment of the PIK Interest, and thereafter to
principal.


 


(d)                                 If
for any reason one or more PIK Notes shall not be delivered in accordance with
Section 2(b) of this Note, the principal amount of this Note for
purposes of calculating the Optional Redemption Price shall be deemed to be the
principal of this Note plus the principal of all PIK Notes not so delivered,
provided, however, that the Optional Redemption Price payable with respect to
this Note and all PIK Notes actually delivered pursuant hereto in the aggregate
shall not exceed the Optional Redemption Price which would have been payable if
all PIK Notes required to be delivered in accordance with
Section 2(b) of this Note had actually been delivered.


 

















 


5.               Amendment.  Amendments and modifications of this Note
may be made only in the manner provided in Section 11.04 of the Purchase
Agreement.


 


6.               Defaults and
Remedies.


 


(a)                                  Events
of Default.  An “Event of Default”
shall occur if:


 


(i)                                     the
Company shall default in the payment of the principal of this Note, when and as
the same shall become due and payable, whether at maturity or at a date fixed
for prepayment or by acceleration or otherwise; or


 


(ii)                                  the
Company shall default in the payment of any part of any installment of Basic
Interest according to its terms, when and as the same shall become due and
payable and such default shall continue for a period of 5 Business Days or
Company shall fail to deliver any PIK Note, or an appropriate amount of cash in
lieu thereof pursuant to Section 2(b), when and as the same shall become
deliverable or payable, as the case may be, and such failure shall continue for
a period of 5 Business Days after request for the delivery or payment thereof,
as the case may be, by the Holder; or


 


(iii)                               the
Company shall default in the due observance or performance of any covenant to
be observed or performed pursuant to Sections 8.01, 8.02(a), 8.03, 8.09,
8.10, 8.11, 8.12(a) or 8.13 or Article 9 of the Purchase Agreement; provided,
however, that so long as WMF is the Holder of the entire unpaid
principal amount of the Note(s), a default under the foregoing Sections of
Article 8 or Article 9 shall become an Event of Default only if such
default shall continue for a period of 10 days after notice from WMF; or


 


(iv)                              the
Company or any other Group Member shall default in the due observance or
performance of any other covenant, condition or agreement on the part of the
Company or any other Group Member to be observed or performed pursuant to the
terms hereof or pursuant to the terms of the Purchase Agreement or any of the
Investment Documents (other than those referred to in clauses (i), (ii) or
(iii) of this Section 6(a)), and such default shall continue for 30 days
after the earliest of (A) the date the Company is required pursuant to the
Investment Documents or otherwise to give notice thereof to the Holder (whether
or not such notice is actually given), or (B) the date that written notice
thereof, specifying such default and, if such default is capable of being
remedied, requesting that the same be remedied, shall have been given to the
Company by any Holder; or


 


(v)                                 any
representation, warranty or certification made by or on behalf of the Company  or
any Group Member in the Purchase Agreement, this Note, any other Investment
Document or in any certificate or other document delivered pursuant hereto or
thereto shall have been incorrect when made in any material respect (except to
the extent such representation, warranty or certification by its terms is
already subject to a materiality limit or qualifier in whatever form, in which
case the last four words preceding this parenthetical shall not apply); or


 


(vi)                              the
Company or any other Group Member (a) defaults under any instrument
evidencing or relating to any Indebtedness of (or guaranteed by) the Company or
any other Group Member (except Senior Indebtedness under the Senior Loan Agreement,
which is


 

















 


provided for in
clause (b) below), which default is caused by a failure to pay principal
of or premium, if any, or interest on such Indebtedness before the expiration
of the grace period provided in such instrument or any other breach or default
(or other event or condition) shall occur under any such instrument, if the
effect of such breach or default (or such other event or condition) is to
cause, or to permit the holder or holders of such Indebtedness (or a Person on
behalf of such holder or holders) to cause (upon the giving of notice, the
lapse of time or both, or otherwise) such Indebtedness to become or be declared
due and payable prior to its stated maturity and the aggregate principal amount
of all such Indebtedness in default aggregates $500,000 or more, or
(b) defaults under any Senior Loan Document, which default is caused by a
failure to pay principal of or premium, if any, or interest on such Senior
Indebtedness outstanding thereunder before the expiration of any grace period provided
therefor in such instrument or any other breach or default (or other event or
condition) shall occur under any Senior Loan Documents and shall result in any
such Senior Indebtedness becoming or being declared due and payable prior to
its stated maturity; or


 


(vii)                           any
uninsured damage to or loss, theft or destruction of any assets of the Company
or any other Group Member shall occur that is in excess of $500,000
individually or in the aggregate; or


 


(viii)                        an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (A) relief in respect
of the Company or any other Group Member, or of a substantial part of its
property or assets, under Title 11 of the United States Code, as now constituted
or hereafter amended, or any other Federal or state bankruptcy, insolvency,
receivership or similar law, (B) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Company  or
any other Group Member, or for a substantial part of its property or assets, or
(C) the winding up or liquidation of the Company  or any other Group Member;
and such proceeding or petition shall continue undismissed for 60 days, or an
order or decree approving or ordering any of the foregoing shall be entered; or


 


(ix)                                the
Company  or
any other Group Member shall (a) voluntarily commence any proceeding or
file any petition seeking relief under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal or state
bankruptcy, insolvency, receivership or similar law, (b) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in paragraph (viii) of
this Section 6(a), (c) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
the Company  or any other Group Member, or for a substantial part of its
property or assets, (d) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (e) make a general
assignment for the benefit of creditors, (f) become unable, admit in
writing its inability or fail generally to pay its debts as they become due, or
(g) take any action for the purpose of effecting any of the foregoing; or


 


(x)                                   one
or more judgments for the payment of money in an aggregate amount in excess of
$500,000 (to the extent not covered by insurance) shall be rendered against any
Group Member and the same shall remain undischarged for a period of 30 days
during which


 

















 


execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor
to levy upon assets or properties of any Group Member to enforce any such
judgment; or


 


(xi)                                any
proceedings shall be instituted against the Company or any other Group Member
by Possible Dreams, any member of the Pumpkin Group or the P.D. Holdings Group,
any trustee in the Bankruptcy Proceeding or in any bankruptcy proceeding
involving any member of the Pumpkin Group or the P.D. Holdings Group, any
creditors committee appointed in the Bankruptcy Proceeding or in any bankruptcy
proceeding involving any member of the Pumpkin Group or the P.D. Holdings Group
or one or more creditors of Possible Dreams or any member of the Pumpkin Group
or the P.D. Holdings Group seeking (A) the recovery of any amount pursuant to
any alleged or actual guarantee, Contingent Obligation or otherwise, on any
theory of liability whatsoever, whether under the Bankruptcy Code or otherwise
or (B) any other right or remedy against or involving the Company or any Group
Member including remedies of substantive consolidation or veil piercing; or


 


(xii)                         (A) Any
Termination Event occurs that, when taken together with all other Termination
Events that have occurred, can reasonably be expected to result in a liability
of any Group Member or ERISA Affiliate in excess of $250,000; or


 


(B) any Group Member or
ERISA Affiliate shall have committed one or more failures described in Section 302(f)(1)
of ERISA and the amount determined under Section 302(f)(3) of ERISA for
all such failures is at least $250,000; or


 


(C) any Group Member or
ERISA Affiliate shall fail to make full payment (including all required
installments) when due of all amounts that, under the provisions of any Plan or
Multiemployer Plan or applicable law, such Person is required to pay as
contributions thereto or payments thereunder, which, together with all other
such failures, would result in a liability to any Group Member or ERISA
Affiliate exceeding $250,000; or


 


(D) any Group Member or
ERISA Affiliate shall have incurred any accumulated funding deficiency in
excess of $250,000, whether or not waived, with respect to any Plan, or any
lien is imposed on the assets of any Group Member or ERISA Affiliate which,
together with all other such liens, exceeds $250,000; or


 


(E) any Group Member or
ERISA Affiliate, as an employer under a Multiemployer Plan, shall have incurred
(or been notified by the sponsor of any such plan) of withdrawal liability in
an amount exceeding $250,000; or


 


(F) any Group Member or
ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan
that such plan is in reorganization, insolvency, or is being terminated, within
the meaning of Title IV of ERISA, if as a result of such reorganization,
insolvency, or termination, the aggregate annual contributions of all Group
Members and ERISA Affiliates to all Multiemployer Plans that are then in
reorganization, insolvency, or being terminated have been or will be increased
over the amounts contributed to such plans for the respective plan years that
include the Closing Date by an amount exceeding $250,000.


 


(b)                                 Acceleration.  If an Event of Default occurs under
Section 6(a)(viii) or (ix), then the outstanding principal of and all
accrued Interest on the Note shall automatically


 

















 


become immediately due
and payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived.  If
any other Event of Default occurs and is continuing, the Required Purchasers,
by written notice to the Company, may declare the principal of and accrued
Interest on the Note to be immediately due and payable.  Upon such declaration, such principal and
Interest shall become immediately due and payable.  The Required Purchasers may rescind an acceleration and its
consequences if all existing Events of Default have been cured or waived,
except nonpayment of principal or Interest that has become due solely because
of the acceleration, and if the rescission would not conflict with any judgment
or decree.  Any notice or rescission
shall be given in the manner specified in Section 11.03 of the Purchase
Agreement.


 


7.               Subordination.  At any time after the execution and delivery
of an Intercreditor Agreement with respect to this Note (but in no event prior
thereto), this Note shall be subordinate and junior in right of payment to the
Senior Indebtedness as provided in the Intercreditor Agreements.


 


8.               Use of Proceeds.  The Company shall use the principal amount
of this Note in accordance with the permitted uses described in
Section 8.10 of the Purchase Agreement.


 


9.               Suits for
Enforcement.


 


(a)                                  Subject
to the Intercreditor Agreements, upon the occurrence of any one or more Events
of Default, any Holder of this Note may proceed to protect and enforce its
rights hereunder by suit in equity, action at law or by other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in the Purchase Agreement or this Note or in aid of the exercise of
any power granted in the Purchase Agreement or this Note, or may proceed to
enforce the payment of this Note, or to enforce any other legal or equitable
right of the Holder of this Note.


 


(b)                                 In
case of any Default or Event of Default, the Company will pay to the Holder
such amounts as shall be sufficient to cover the costs and expenses of such
Holder due to such Default or Event of Default, as provided in Article 7
of the Purchase Agreement.


 


10.         Remedies Cumulative.  No remedy herein conferred upon the Holder
is intended to be exclusive of any other remedy and each and every such remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or
otherwise.


 


11.         Remedies Not Waived.  No course of dealing between the Company and
the Holder or any delay on the part of the Holder in exercising any rights
hereunder shall operate as a waiver of any right.


 


12.         Transfer.


 


(a)                                  The
term “Holder”
as used herein shall also include any transferee of all or any portion of this
Note whose name has been recorded by the Company in the Note Register.  Each transferee of this Note acknowledges
that this Note has not been registered under the Securities Act, and may be
transferred only pursuant to an effective registration under the


 

















 


Securities Act or
pursuant to an applicable exemption from the registration requirements of the
Securities Act.


 


(b)                                 The
Company shall maintain a register (the “Note Register”) in its principal offices for the purpose
of registering the Note and any transfer or partial transfer thereof, which
register shall reflect and identify, at all times, the ownership of record of
any interest in the Note.  Upon the
issuance of this Note, the Company shall record the name and address of the
initial purchaser of this Note in the Note Register as the first Holder.  Upon surrender for registration of transfer
or exchange of this Note at the principal offices of the Company, the Company
shall, at its expense, execute and deliver one or more new Notes of like tenor
and of denominations of at least $1,000,000 (except as may be necessary to
reflect any principal amount not evenly divisible by $1,000,000) of a like
aggregate principal amount, registered in the name of the Holder or a
transferee or transferees.  Every Note
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by written instrument of transfer duly executed by the Holder of
such Note or such holder’s attorney duly authorized in writing.


 


(c)                                  This
Note may be transferred or assigned, in whole or in part, by the Holder at any
time, provided that no transfer may be made (i) to a Person that is not
an Eligible Assignee or (ii) if such transfer would result in there being more
than 8 holders of the Note.


 


13.         Replacement of Note.  On receipt by the Company of an affidavit of
an authorized representative of the Holder stating the circumstances of the
loss, theft, destruction or mutilation of this Note (and in the case of any
such mutilation, on surrender and cancellation of such Note), the Company, at
its expense, will promptly execute and deliver, in lieu thereof, a new Note of
like tenor.  If required by the Company,
such Holder must provide indemnity sufficient in the reasonable judgment of the
Company to protect the Company from any loss which it may suffer if a lost,
stolen or destroyed Note is replaced and/or is subsequently found or recovered.


 


14.         Covenants Bind
Successors and Assigns.  All the
covenants, stipulations, promises and agreements contained in this Note by or
on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.


 


15.         Notices.  All notices, demands and other
communications provided for or permitted hereunder shall be made in writing in
accordance with Section 11.02 of the Purchase Agreement.


 


16.         GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ANY CHOICE OF LAW PRINCIPLES THAT WOULD REQUIRE THE
APPLICATION OF ANY OTHER LAW.


 


17.         Severability.  If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the


 

















 


provisions held invalid,
illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.


 


18.         Rules of Construction.  Unless the context otherwise requires, “or”
is not exclusive, “including” is not limiting, and references
to sections or subsections refer to sections or subsections of this Note.  References in this Note to any agreement,
other document or law “as amended” or “as amended from time to time,”
or to amendments of any document or law, shall include any amendments,
supplements, replacements, renewals, waivers or other modifications.  References in this Note to any law (or any
part thereof) include any successor law and any rules and regulations
promulgated thereunder (or with respect to such part) by the relevant
Governmental Authority, as amended from time to time.


 


[REMAINDER OF THIS PAGE INTENTIONALLY
LEFT BLANK]


 

















 


19.         Headings.  The headings in this Note are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


	
   

  	
  SECURITY CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ BRIAN D. FITZGERALD

  
	
   

  	
   

  	
  Name: Brian D.
  Fitzgerald

  
	
   

  	
   

  	
  Title: President and
  Chief Executive Officer

  



 


 


[SIGNATURE PAGE TO PROMISSORY NOTE]