Exhibit 10.22


 


JUNIOR SUBORDINATED INDENTURE


 


between


 


 


GKK CAPITAL LP


 


 


and


 


 


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

as Trustee


 










 


Dated as of May 20, 2005


 












 





 





















 


TABLE OF
CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS AND OTHER PROVISIONS OF GENERAL
  APPLICATION

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  
	
  Section 1.2.

  	
  Compliance Certificate
  and Opinions

  	
   

  
	
  Section 1.3.

  	
  Forms of Documents
  Delivered to Trustee

  	
   

  
	
  Section 1.4.

  	
  Acts of Holders

  	
   

  
	
  Section 1.5.

  	
  Notices, Etc. to
  Trustee and Company

  	
   

  
	
  Section 1.6.

  	
  Notice to Holders;
  Waiver

  	
   

  
	
  Section 1.7.

  	
  Effect of Headings and
  Table of Contents

  	
   

  
	
  Section 1.8.

  	
  Successors and Assigns

  	
   

  
	
  Section 1.9.

  	
  Separability Clause

  	
   

  
	
  Section 1.10.

  	
  Benefits of Indenture

  	
   

  
	
  Section 1.11.

  	
  Governing Law

  	
   

  
	
  Section 1.12.

  	
  Submission to
  Jurisdiction

  	
   

  
	
  Section 1.13.

  	
  Non-Business Days

  	
   

  
	
  ARTICLE II

  	
  SECURITY FORMS

  	
   

  
	
  Section 2.1.

  	
  Form of Security

  	
   

  
	
  Section 2.2.

  	
  Restricted Legend

  	
   

  
	
  Section 2.3.

  	
  Form of
  Trustee’s Certificate of Authentication

  	
   

  
	
  Section 2.4.

  	
  Temporary
  Securities

  	
   

  
	
  Section 2.5.

  	
  Definitive
  Securities

  	
   

  
	
  ARTICLE III

  	
  THE SECURITIES

  	
   

  
	
  Section 3.1.

  	
  Payment
  of Principal and Interest

  	
   

  
	
  Section 3.2.

  	
  Denominations

  	
   

  
	
  Section 3.3.

  	
  Execution,
  Authentication, Delivery and Dating

  	
   

  
	
  Section 3.4.

  	
  Global
  Securities

  	
   

  
	
  Section 3.5.

  	
  Registration,
  Transfer and Exchange Generally

  	
   

  
	
  Section 3.6.

  	
  Mutilated,
  Destroyed, Lost and Stolen Securities

  	
   

  
	
  Section 3.7.

  	
  Persons
  Deemed Owners

  	
   

  
	
  Section 3.8.

  	
  Cancellation

  	
   

  
				



 


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  Section 3.9.

  	
  Deferrals
  of Interest Payment Dates

  	
   

  
	
  Section 3.10.

  	
  Reserved

  	
   

  
	
  Section 3.11.

  	
  Agreed
  Tax Treatment

  	
   

  
	
  Section 3.12.

  	
  CUSIP
  Numbers

  	
   

  
	
  ARTICLE IV

  	
  SATISFACTION AND DISCHARGE

  	
   

  
	
  Section 4.1.

  	
  Satisfaction
  and Discharge of Indenture

  	
   

  
	
  Section 4.2.

  	
  Application
  of Trust Money

  	
   

  
	
  ARTICLE V

  	
  REMEDIES

  	
   

  
	
  Section 5.1.

  	
  Events
  of Default

  	
   

  
	
  Section 5.2.

  	
  Acceleration
  of Maturity; Rescission and Annulment

  	
   

  
	
  Section 5.3.

  	
  Collection
  of Indebtedness and Suits for Enforcement by Trustee.

  	
   

  
	
  Section 5.4.

  	
  Trustee
  May File Proofs of Claim

  	
   

  
	
  Section 5.5.

  	
  Trustee
  May Enforce Claim Without Possession of Securities

  	
   

  
	
  Section 5.6.

  	
  Application
  of Money Collected

  	
   

  
	
  Section 5.7.

  	
  Limitation
  on Suits

  	
   

  
	
  Section 5.8.

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

  	
   

  
	
  Section 5.9.

  	
  Restoration
  of Rights and Remedies

  	
   

  
	
  Section 5.10.

  	
  Rights
  and Remedies Cumulative

  	
   

  
	
  Section 5.11.

  	
  Delay
  or Omission Not Waiver

  	
   

  
	
  Section 5.12.

  	
  Control
  by Holders

  	
   

  
	
  Section 5.13.

  	
  Waiver
  of Past Defaults

  	
   

  
	
  Section 5.14.

  	
  Undertaking
  for Costs

  	
   

  
	
  Section 5.15.

  	
  Waiver
  of Usury, Stay or Extension Laws

  	
   

  
	
  ARTICLE VI

  	
  THE TRUSTEE

  	
   

  
	
  Section 6.1.

  	
  Corporate
  Trustee Required

  	
   

  
	
  Section 6.2.

  	
  Certain
  Duties and Responsibilities

  	
   

  
	
  Section 6.3.

  	
  Notice
  of Defaults

  	
   

  
	
  Section 6.4.

  	
  Certain
  Rights of Trustee

  	
   

  
				



 


ii





















 


	
  Section 6.5.

  	
  May Hold
  Securities

  	
   

  
	
  Section 6.6.

  	
  Compensation;
  Reimbursement; Indemnity

  	
   

  
	
  Section 6.7.

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section 6.8.

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section 6.9.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
	
  Section 6.10.

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  
	
  Section 6.11.

  	
  Appointment
  of Authenticating Agent

  	
   

  
	
  ARTICLE VII

  	
  HOLDER’S LISTS AND REPORTS BY
  COMPANY

  	
   

  
	
  Section 7.1.

  	
  Company
  to Furnish Trustee Names and Addresses of Holders

  	
   

  
	
  Section 7.2.

  	
  Preservation
  of Information, Communications to Holders

  	
   

  
	
  Section 7.3.

  	
  Reports
  by Company

  	
   

  
	
  ARTICLE VIII

  	
  CONSOLIDATION, MERGER,
  CONVEYANCE, TRANSFER OR LEASE

  	
   

  
	
  Section 8.1.

  	
  Company
  May Consolidate, Etc., Only on Certain Terms

  	
   

  
	
  Section 8.2.

  	
  Successor
  Company Substituted

  	
   

  
	
  ARTICLE IX

  	
  SUPPLEMENTAL INDENTURES

  	
   

  
	
  Section 9.1.

  	
  Supplemental
  Indentures without Consent of Holders

  	
   

  
	
  Section 9.2.

  	
  Supplemental
  Indentures with Consent of Holders

  	
   

  
	
  Section 9.3.

  	
  Execution
  of Supplemental Indentures

  	
   

  
	
  Section 9.4.

  	
  Effect
  of Supplemental Indentures

  	
   

  
	
  Section 9.5.

  	
  Reference
  in Securities to Supplemental Indentures

  	
   

  
	
  ARTICLE X

  	
  COVENANTS

  	
   

  
	
  Section 10.1.

  	
  Payment
  of Principal, Premium, if any, and Interest

  	
   

  
	
  Section 10.2.

  	
  Money
  for Security Payments to be Held in Trust

  	
   

  
	
  Section 10.3.

  	
  Statement
  as to Compliance

  	
   

  
	
  Section 10.4.

  	
  Calculation
  Agent

  	
   

  
	
  Section 10.5.

  	
  Additional
  Tax Sums

  	
   

  
	
  Section 10.6.

  	
  Additional
  Covenants

  	
   

  
	
  Section 10.7.

  	
  Waiver
  of Covenants

  	
   

  
	
  Section 10.8.

  	
  Treatment
  of Securities

  	
   

  
				



 


iii





















 


	
  ARTICLE XI

  	
  REDEMPTION OF SECURITIES

  	
   

  
	
  Section 11.1.

  	
  Optional
  Redemption

  	
   

  
	
  Section 11.2.

  	
  Special
  Event Redemption

  	
   

  
	
  Section 11.3.

  	
  Election
  to Redeem; Notice to Trustee

  	
   

  
	
  Section 11.4.

  	
  Selection
  of Securities to be Redeemed

  	
   

  
	
  Section 11.5.

  	
  Notice
  of Redemption

  	
   

  
	
  Section 11.6.

  	
  Deposit
  of Redemption Price

  	
   

  
	
  Section 11.7.

  	
  Payment
  of Securities Called for Redemption

  	
   

  
	
  ARTICLE XII

  	
  SUBORDINATION OF SECURITIES

  	
   

  
	
  Section 12.1.

  	
  Securities
  Subordinate to Senior Debt

  	
   

  
	
  Section 12.2.

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

  	
   

  
	
  Section 12.3.

  	
  Payment
  Permitted If No Default

  	
   

  
	
  Section 12.4.

  	
  Subrogation
  to Rights of Holders of Senior Debt

  	
   

  
	
  Section 12.5.

  	
  Provisions
  Solely to Define Relative Rights

  	
   

  
	
  Section 12.6.

  	
  Trustee
  to Effectuate Subordination

  	
   

  
	
  Section 12.7.

  	
  No
  Waiver of Subordination Provisions

  	
   

  
	
  Section 12.8.

  	
  Notice
  to Trustee

  	
   

  
	
  Section 12.9.

  	
  Reliance
  on Judicial Order or Certificate of Liquidating Agent

  	
   

  
	
  Section 12.10.

  	
  Trustee
  Not Fiduciary for Holders of Senior Debt

  	
   

  
	
  Section 12.11.

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

  	
   

  
	
  Section 12.12.

  	
  Article Applicable
  to Paying Agents

  	
   

  
				



 


iv





















 


	
  SCHEDULES

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule A

  	
  –

  	
  Determination of LIBOR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Officer’s Financial Certificate

  	
   

  



 


v





















 


JUNIOR SUBORDINATED INDENTURE, dated as of May 20, 2005, between GKK Capital LP, a Delaware limited partnership (the “Company”), and JPMORGAN
CHASE BANK, NATIONAL
ASSOCIATION, a national banking association, as Trustee (in such
capacity, the “Trustee”).


 


RECITALS OF THE COMPANY


 


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


 


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


 


NOW, THEREFORE, this Indenture Witnesseth:


 


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


 


ARTICLE I


 


DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION


 


SECTION 1.1.  Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 


1





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2





















 


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


 


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


 


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


 


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


 


“Common
Stock”  means
the common stock, par value $0.001 per share, of the Company.


 


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


 


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


 


“Corporate
Trust Office”
means the principal office of the Trustee at which at any particular
time its corporate trust business shall be administered, which office at the
date of this Indenture is located at 600 Travis, 50th Floor, Houston, Texas 77019 Attn:
Institutional Trust Services—Gramercy Capital Trust I.


 


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


 


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


 


3





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


4





















 


custodian with respect to
any Government Obligation that is specified in clause (a) above and held
by such bank for the account of the holder of such depositary receipt, or with
respect to any 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 March 30, June 30, September 30, and December 30
of each year, commencing on September 30,
2005, during the term of this Indenture.


 


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


 


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


 


“LIBOR” has
the meaning specified in Schedule A.


 


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


 


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


 


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


 


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


 


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


 


“Officers’
Certificate”  means
a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the Chief Executive Officer, the President or a Vice President, and by


 


5





















 


the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company and delivered to the Trustee.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6





















 


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


 


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


 


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


 


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


 


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


 


“Proceeding”  has
the meaning specified in Section 12.2.


 


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


 


“Purchase
Agreement”  means
the agreement, dated as of the date hereof, between the Company and the Trust
and Merrill Lynch International.


 


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


 


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


 


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


 


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


 


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


 


7





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Stated
Maturity” means June 30,
2035.


 


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


 


“Tax
Event” means
the receipt by the Company of an Opinion of Counsel experienced in such matters
to the effect that, as a result of (a) any amendment to or change
(including any announced prospective change) in the laws or any regulations
thereunder of the United States or any political subdivision or taxing
authority thereof or therein or (b) any judicial decision or any


 


8





















 


official administrative
pronouncement (including any private letter ruling, technical advice memorandum
or field service advice) or regulatory procedure, including any notice or
announcement of intent to adopt any such pronouncement or procedure (an “Administrative Action”), regardless of
whether such judicial decision or Administrative Action is issued to or in
connection with a proceeding involving the Company or the Trust and whether or
not subject to review or appeal, which amendment, change, judicial decision or
Administrative Action is enacted, promulgated or announced, in each case, on or
after the date of issuance of the Securities, there is more than an
insubstantial risk that (i) the Trust is, or will be within ninety (90)
days of the date of such opinion, subject to United States federal income tax
with respect to income received or accrued on the Securities, (ii) interest
payable by the Company on the Securities is not, or within ninety (90) days of
the date of such opinion, will not be, deductible by the Company, in whole or
in part, for United States federal income tax purposes, or (iii) the Trust
is, or will be within ninety (90) days of the date of such opinion, subject to
more than a de
minimis amount of other taxes, duties or other governmental charges.


 


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


 


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


 


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


 


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


 


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


 


SECTION 1.2.  Compliance Certificate and Opinions.


 


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


 


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


 


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


 


9





















 


(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, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and


 


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


 


SECTION 1.3.  Forms of Documents Delivered to Trustee.


 


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


 


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


 


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


 


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


 


10





















 


SECTION 1.4.  Acts of Holders.


 


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


 


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


 


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


 


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


 


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


 


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


 


11





















 


new record date
for any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect).  Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 1.6.


 


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


 


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


 


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


 


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


 


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


 


12





















 


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


 


SECTION 1.6.  Notice to Holders; Waiver.


 


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


 


SECTION 1.7.  Effect of Headings and Table of Contents.


 


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


 


SECTION 1.8.  Successors and Assigns.


 


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


 


SECTION 1.9.  Separability Clause.


 


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


 


13





















 


SECTION 1.10.  Benefits of Indenture.


 


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


 


SECTION 1.11.  Governing Law.


 


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


 


SECTION 1.12.  Submission to Jurisdiction.


 


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


 


SECTION 1.13.  Non-Business Days.


 


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


 


14





















 


ARTICLE II


 


SECURITY FORMS


 


SECTION 2.1.  Form of Security.


 


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


 


GKK CAPITAL LP


 


Floating Rate Junior Subordinated Note due 2035


 


	
  No.

  	
   

  	
  $  51,550,000

  



 


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 JPMorgan Chase Bank,
National Association, not in its individual capacity, but solely as Property
Trustee for Gramercy Capital Trust I, or registered assigns, the principal sum
of Fifty One Million Five Hundred Fifty
Thousand Dollars ($51,550,000) [if the Security is a Global Security, then insert— or such
other principal amount represented hereby as may be set forth in the records of
the Securities Registrar hereinafter referred to in accordance with the
Indenture] on June 30,
2035.  The Company further promises to
pay interest on said principal sum from May 20, 2005, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly (subject to
deferral as set forth herein) in arrears on March 30, June 30, September 30 and December 30
of each year, commencing September 30, 2005, or if any such day is not a
Business Day, on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at a fixed rate equal to 7.57% per
annum through the interest payment date in June 2015 (“Fixed Rate
Period”) and thereafter at a
variable rate equal to LIBOR plus 3.00% per annum, together with Additional Tax
Sums, if any, as provided in Section 10.5 of the Indenture, until
the principal hereof is paid or duly provided for or made available for
payment; provided,
further, that any overdue
principal, premium, if any, or Additional Tax Sums and any overdue installment
of interest shall bear Additional Interest at a fixed rate equal to 7.57% through the interest payment date in June 2015
and thereafter at a variable rate equal to LIBOR plus 3.00% per annum
(to the extent that the payment of such interest shall be legally enforceable),
compounded quarterly, from the
dates such amounts are due until they are paid or made available for payment,
and such interest shall be payable on demand.


 


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


 


15





















 


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


 


So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and from time to time
during the term of this Security, to defer the payment of interest on this
Security for a period of up to four (4) consecutive
quarterly interest
payment periods (each such period, an “Extension Period”),
during which Extension Period(s), no interest shall be due and payable (except
any Additional Tax Sums that may be due and payable).  No Extension Period shall end on a date other
than an Interest Payment Date, and no Extension Period shall extend beyond the
Stated Maturity of the principal of this Security.  No interest shall be due and payable during
an Extension Period (except any Additional Tax Sums that may be due and
payable), except at the end thereof.  At
the end of any such Extension Period, the Company shall pay all interest then
accrued and unpaid on this Security.  Prior
to the termination of any such Extension Period, the Company may further defer
the payment of interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed four (4) quarterly
interest payment periods, (ii) no Extension Period shall end on a date
other than an Interest Payment Date and (iii) no Extension Period shall
extend beyond the Stated Maturity of the principal of this Security.  Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension Period; provided,
that (i) such Extension Period does not exceed four
(4) quarterly interest payment periods, (ii) no Extension Period
shall end on a date other than an Interest Payment Date and (iii) no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Security.  The Company shall give the
Holder of this Security and the Trustee written notice of its election to begin
any such Extension Period at least thirty (30) days’ prior to the next
succeeding Interest Payment Date on which interest on this Security would be
payable but for such deferral.


 


During any such Extension Period, the Company shall
not (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company’s capital stock or (ii) make any payment of principal of or any
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with
or junior in interest to this Security (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with (1) any employment contract, benefit plan or other similar
arrangement with or for the benefit of any one or more employees, officers,
directors or consultants, (2) a dividend reinvestment or stockholder stock
purchase plan and (3) the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the
applicable Extension Period, (b) as a result of an exchange or conversion
of any class or series of the Company’s capital stock (or any capital


 


16





















 


stock of a Subsidiary of
the Company) for any class or series of the Company’s capital stock or of any
class or series of the Company’s indebtedness for any class or series of the
Company’s capital stock, (c) the purchase of fractional interests in
shares of the Company’s capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, stock or other property under any Rights Plan, or the redemption or
repurchase of rights pursuant thereto or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the same
stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock).


 


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.  Notwithstanding the foregoing, so long as the
Holder of this Security is the Property Trustee, the payment of the principal
of (and premium, if any) and interest (including any overdue installment of
interest and Additional Tax Sums, if any) on this Security will be made at such
place and to such account as may be designated by the Property Trustee.


 


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


 


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


 


[FORM OF
REVERSE OF SECURITY]


 


This Security is one of a duly authorized issue of
securities of the Company (the “Securities”)
issued under the Junior Subordinated Indenture, dated as of May 20, 2005
(the “Indenture”),
between the Company and JPMorgan Chase Bank, National Association, as Trustee
(in such capacity, the “Trustee,” which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of


 


17





















 


the Company, the Trustee,
the holders of Senior Debt, the Holders of the Securities and the holders of
the Preferred Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.


 


All terms used in this Security that are defined in
the Indenture or in the Amended and
Restated Trust Agreement, dated as of May 20, 2005 (as
modified, amended or supplemented from time to time, the “Trust Agreement”),
relating to the Gramercy Capital Trust I (the “Trust”) among
the Company, as Depositor, the Trustees named therein and the Holders from time
to time of the Trust Securities issued pursuant thereto, shall have the
meanings assigned to them in the Indenture or the Trust Agreement, as the case
may be.


 


The Company may, on any
Interest Payment Date, at its option, upon not less than thirty (30) days’ nor
more than sixty (60) days’ written notice to the Holders of the Securities
(unless a shorter notice period shall be satisfactory to the Trustee) on or
after June 30, 2010 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 addition, upon the occurrence and during the
continuation of a Special Event, the Company may, at its option, upon not less
than thirty (30) days’ nor more than sixty (60) days’ written notice to the
Holders of the Securities (unless a shorter notice period shall be satisfactory
to the Trustee), redeem this Security, in whole but not in part, subject to the
terms and conditions of Article XI of the Indenture at a Redemption
Price equal to one hundred seven and one half percent (107.5%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date
fixed as the Redemption Date.


 


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


 


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


 


18





















 


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 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:

  
					



 


19





















 


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 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.


 


20





















 


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


 


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


 


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


 


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


 


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


 


21





















 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  
	
   

  	
   

  
	
   

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


 


SECTION 2.5.  Definitive Securities.


 


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


 


ARTICLE III


 


THE SECURITIES


 


SECTION 3.1.  Payment of Principal and Interest.


 


(a)                                  The
unpaid principal amount of the Securities shall bear interest at a fixed rate equal to 7.57% per annum through
the interest payment date in June 2015 and thereafter at a variable
rate of LIBOR plus 3.00% per annum until paid or duly provided for, such
interest to accrue from the Original Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for, and
any overdue principal, premium, if any, or


 


22





















 


Additional Tax
Sums and any overdue installment of interest shall bear Additional Interest at
the rate equal to a fixed rate equal to
7.57% per annum through the interest payment date in June 2015 and
thereafter at a variable rate
of LIBOR plus 3.00% per annum,
compounded quarterly from the
dates such amounts are due until they are paid or funds for the payment thereof
are made available for payment.


 


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


 


(c)                                  Any
interest on any Security that is due and payable, but is not timely paid or
duly provided for, on any Interest Payment Date for Securities (herein called “Defaulted Interest”) shall
forthwith cease to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder, and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
paragraph (i) or (ii) below:


 


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


 


(ii)  The Company
may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange or


 


23





















 


automated quotation system on which the Securities may
be listed, traded or quoted and, upon such notice as may be required by such
exchange or automated quotation system (or by the Trustee if the Securities are
not listed), if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such payment shall be deemed
practicable by the Trustee.


 


(d)                                 Payments
of interest on the Securities shall include interest accrued to but excluding
the respective Interest Payment Dates. During the Fixed Rate Period, the amount
of interest payable shall be computed on the basis of a 360-day year of twelve
30-day months and the amount payable for any partial period shall be computed
on the basis of the number of days elapsed in a 360-day year of twelve 30-day
months.  Upon expiration of the Fixed
Rate Period, the amount of interest payable for any Interest Payment Period
will be computed on the basis of a 360-day year and the actual number of days
elapsed in the relevant interest period.


 


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


 


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


 


SECTION 3.2.  Denominations.


 


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


 


SECTION 3.3.  Execution, Authentication, Delivery and
Dating.


 


(a)                                  At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities in an aggregate principal amount
(including all then Outstanding Securities) not in excess of Fifty One Million Five Hundred Fifty Thousand
Dollars ($51,550,000) 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


 


24





















 


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 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.


 


25





















 


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


 


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


 


(e)                                  Securities
distributed to holders of Book-Entry Preferred Securities (as defined in the
applicable Trust Agreement) upon the dissolution of the Trust shall be
distributed in the form of one or more Global Securities registered in the name
of a Depositary or its nominee, and deposited with the Securities Registrar, as
custodian for such Depositary, or with such Depositary, for credit by the
Depositary to the respective accounts of the beneficial owners of the


 


26





















 


Securities
represented thereby (or such other accounts as they may direct).  Securities distributed to holders of
Preferred Securities other than Book-Entry Preferred Securities upon the
dissolution of the Trust shall not be issued in the form of a Global Security
or any other form intended to facilitate book-entry trading in beneficial
interests in such Securities.


 


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


 


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


 


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


 


SECTION 3.5.  Registration, Transfer and Exchange Generally.


 


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


 


(b)                                 Subject
to compliance with Section 2.2(b), upon surrender for registration
of transfer of any Security at the offices or agencies of the Company
designated for that purpose the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the


 


27





















 


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.


 


(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


 


28





















 


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.


 


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.


 


29





















 


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. Deferrals of
Interest Payment Dates.


 


(a)                                  So
long as no Event of Default has occurred and is continuing, the Company shall
have the right, at any time and from time to time during the term of the
Security, to defer the payment of interest on the Securities for a period of up
to four (4) consecutive
quarterly interest
payment periods (each such period, an “Extension Period”), during which Extension Period(s), the
Company shall have the right to make no payments or partial payments of
interest on any Interest Payment Date (except any Additional Tax Sums that
otherwise may be due and payable).  No
Extension Period shall end on a date other than an Interest Payment Date and no
Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities.  No interest shall be due
and payable during an Extension Period, except at the end thereof.  At the end of any such Extension Period, the
Company shall pay all interest then accrued and unpaid on the Securities.  Prior to the termination of any such
Extension Period, the Company may extend such Extension Period and further
defer the payment of interest; provided, that (i) all such previous and further
extensions comprising such Extension Period do not exceed four (4) quarterly
interest payment periods, (ii) no Extension Period shall end on a date
other than an Interest Payment Date and (iii) no Extension Period shall
extend beyond the Stated Maturity of the principal of the Securities.  Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest then due on any
Interest Payment Date, the Company may elect to begin a new Extension Period; provided,
that (i) such Extension Period does not exceed four (4) quarterly interest
payment periods, (ii) no Extension Period shall end on a date other than
an Interest Payment Date and (iii) no Extension Period shall extend beyond
the Stated Maturity of the principal of the Securities.  The Company shall give the Holders of the
Securities and the Trustee written notice of its election to begin any such
Extension Period at least thirty (30) days’ prior to the next succeeding
Interest Payment Date on which interest on the Securities would be payable but
for such deferral.


 


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


 


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SECTION 3.10.  Reserved.


 


SECTION 3.11.  Agreed Tax Treatment.


 


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


 


SECTION 3.12.  CUSIP Numbers.


 


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


 


ARTICLE IV


 


SATISFACTION AND DISCHARGE


 


SECTION 4.1.  Satisfaction and Discharge of Indenture.


 


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


 


(a)                                  either


 


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


 


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


 


(A)                              have
become due and payable, or


 


31





















 


(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


 


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


 


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


 


SECTION 4.2.  Application of Trust Money.


 


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


 


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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)                                  default
in the performance, or breach, of any covenant or warranty in any material
respect of the Company in this Indenture or the Purchase 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;


 


(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


 


33





















 


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


 


SECTION 5.2.  Acceleration of Maturity; Rescission and
Annulment.


 


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


 


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


 


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


 


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


 


(B)                                any
accrued Additional Interest on all Securities,


 


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


 


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


 


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


 


provided, that if the Holders
of such Securities fail to annul such declaration and waive such default, the
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred


 


34





















 


Securities then outstanding shall also have the right
to rescind and annul such declaration and its consequences by written notice to
the Property Trustee, the Company and the Trustee, subject to the satisfaction
of the conditions set forth in paragraph (b) of this Section 5.2.  No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


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


 


(a)                                  The
Company covenants that if:


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.4.  Trustee May File Proofs of Claim.


 


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


 


35





















 


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 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;


 


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(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; Direct
Action by Holders of Preferred Securities.


 


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


 


SECTION 5.9.  Restoration of Rights and Remedies.


 


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


 


SECTION 5.10.  Rights and Remedies Cumulative.


 


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


 


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SECTION 5.11.  Delay or Omission Not Waiver.


 


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


 


SECTION 5.12.  Control by Holders.


 


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


 


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


 


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


 


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


 


SECTION 5.13.  Waiver of Past Defaults.


 


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


 


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


 


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


 


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


 


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(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.


 


ARTICLE VI


 


THE TRUSTEE


 


SECTION 6.1.  Corporate Trustee Required.


 


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


 


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accordance with the
provisions of this Section 6.1, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article VI.


 


SECTION 6.2.  Certain Duties and Responsibilities.


 


Except during the continuance of an Event of Default:


 


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


 


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


 


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


 


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


 


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


 


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


 


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(ii)  the Trustee shall
not be liable with respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of at least a
majority in aggregate principal amount of the Outstanding Securities (or, as
the case may be, the holders of a majority in aggregate Liquidation Amount of
Preferred Securities) relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee under this Indenture; and


 


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


 


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


 


(i)  whenever a
reference is made herein to the dissolution, termination or liquidation of the
Trust, the Trustee shall be entitled to assume that no such dissolution,
termination, or liquidation has occurred so long as the Securities are or
continue to be registered in the name of such Property Trustee, and the Trustee
shall be charged with notice or knowledge of such dissolution, termination or
liquidation only upon written notice thereof given to the Trustee by the
Depositor under the Trust Agreement; and


 


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


 


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


 


SECTION 6.3.  Notice of Defaults.


 


Within ninety (90) days after the occurrence of any
default actually known to the Trustee, the Trustee shall give the Holders
notice of such default unless such default shall have been cured or waived;  provided,  that except in the case of a default in the payment
of the principal of or any premium or interest on any Securities, the Trustee
shall be fully protected in withholding the notice if and so long as the board
of directors, the executive committee or a trust committee


 


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of directors and/or
Responsible Officers of the Trustee in good faith determines that withholding
the notice is in the interest of holders of Securities; and provided, further,  that
in the case of any default of the character specified in Section 5.1(c),
no such notice to Holders shall be given until at least thirty (30) days after
the occurrence thereof. For the purpose of this Section 6.3, the
term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default.


 


SECTION 6.4.  Certain Rights of Trustee.


 


Subject to the provisions of Section 6.2:


 


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


 


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


 


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


 


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


 


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


 


42





















 


might be incurred
by it in compliance with such request or direction, including reasonable
advances as may be requested by the Trustee;


 


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


 


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


 


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


 


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SECTION 6.5.  May Hold Securities.


 


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


 


SECTION 6.6.  Compensation; Reimbursement; Indemnity.


 


(a)                                  The
Company agrees:


 


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


 


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


 


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


 


SECTION 6.7.  Resignation and Removal; Appointment of
Successor.


 


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


 


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


 


(c)                                  Unless
an Event of Default shall have occurred and be continuing, the Trustee may be
removed at any time by the Company by a Board Resolution.  If an Event of Default shall have occurred
and be continuing, the Trustee may be removed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company.


 


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


 


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


 


SECTION 6.8.  Acceptance of Appointment by Successor.


 


(a)                                  In
case of the appointment hereunder of a successor Trustee, each successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of


 


45





















 


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, 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


 


46





















 


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


 


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


 


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


 


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


 


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


 


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


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL

  ASSOCIATION, not in its individual capacity, but

  solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


47





















 


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


 


(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.


 


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SECTION 7.3.  Reports by Company.


 


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


 


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


 


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


 


ARTICLE VIII


 


CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE


 


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


 


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


 


49





















 


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


 


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


 


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


 


SECTION 8.2.  Successor Company Substituted.


 


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


 


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


 


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(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


 


(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 the holders of the
Preferred Securities; or


 


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


 


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


 


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


 


SECTION 9.2.  Supplemental Indentures with Consent of
Holders.


 


(a)                                  Subject
to Section 9.1, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or of modifying in any manner the rights of the Holders of Securities
under this


 


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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;


 


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


 


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


 


SECTION 9.3.  Execution of Supplemental Indentures.


 


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


 


52





















 


SECTION 9.4.  Effect of Supplemental Indentures.


 


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


 


SECTION 9.5.  Reference in Securities to Supplemental
Indentures.


 


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


 


ARTICLE X


 


COVENANTS


 


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


 


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


 


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


 


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


 


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


 


(c)                                  The
Company will cause each Paying Agent for the Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.2,
that such Paying Agent will (i) comply with the provisions of this
Indenture and the Trust Indenture Act applicable to it as a


 


53





















 


Paying Agent and (ii) during
the continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities.


 


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


 


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


 


SECTION 10.3.  Statement as to Compliance.


 


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


 


SECTION 10.4.  Calculation Agent.


 


(a)                                  The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR
in respect of each


 


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


 


(b)                                 The
Calculation Agent shall be required to agree that, as soon as possible after
11:00 a.m. (London time) on each LIBOR Determination Date (as defined in Schedule A),
but in no event later than 11:00 a.m. (London time) on the Business Day
immediately following each LIBOR Determination Date, the Calculation Agent will
calculate the interest rate (the Interest Payment shall be rounded to the
nearest cent, with half a cent being rounded upwards) for the related Interest
Payment Date, and will communicate such rate and amount to the Company, the
Trustee, each Paying Agent and the Depositary. The Calculation Agent will also
specify to the Company the quotations upon which the foregoing rates and
amounts are based and, in any event, the Calculation Agent shall notify the
Company before 5:00 p.m. (London time) on each LIBOR Determination Date
that either:  (i) it has determined
or is in the process of determining the foregoing rates and amounts or (ii) it
has not determined and is not in the process of determining the foregoing rates
and amounts, together with its reasons therefor.  The Calculation Agent’s determination of the
foregoing rates and amounts for any Interest Payment Date will (in the absence
of manifest error) be final and binding upon all parties.  For the sole purpose of calculating the
interest rate for the Securities, “Business Day” shall be defined as any day on
which dealings in deposits in Dollars are transacted in the London interbank
market.


 


SECTION 10.5.  Additional Tax Sums.


 


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


 


55





















 


express mention is not
made; provided,
that the deferral of the payment of interest pursuant to Section 3.9
on the Securities shall not defer the payment of any Additional Tax Sums that
may be due and payable.


 


SECTION 10.6.  Additional Covenants.


 


(a)                                  The
Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing or the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities or such Extension Period, or any extension thereof, shall be
continuing, it shall not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any shares of the Company’s capital stock (for the avoidance of doubt, the term
“capital stock” includes both common stock and preferred stock of the Company),
(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 such subsidiaries 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 shares of capital stock 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
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into
prior to the 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
capital stock (or any capital stock of a Subsidiary of the Company) for any
class or series of the Company’s capital stock or of any class or series of the
Company’s indebtedness for any class or series of the Company’s capital stock, (C) the
purchase of fractional interests in shares of the Company’s capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (D) any declaration of a dividend
in connection with any Rights Plan, the issuance of rights, stock or other
property under any Rights Plan or the redemption or repurchase of rights
pursuant thereto or (E) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock issuable upon
exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such
stock).


 


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


 


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


 


SECTION 10.7.  Waiver of Covenants.


 


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


 


SECTION 10.8.  Treatment of Securities.


 


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


 


ARTICLE XI


 


REDEMPTION OF SECURITIES


 


SECTION 11.1.  Optional Redemption.


 


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


 


SECTION 11.2.  Special Event Redemption.


 


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


 


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SECTION 11.3.  Election to Redeem; Notice to Trustee.


 


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


 


SECTION 11.4.  Selection of Securities to be Redeemed.


 


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


 


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


 


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


 


SECTION 11.5.  Notice of Redemption.


 


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


 


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


 


(i)  the Redemption
Date;


 


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(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 (or
if the Company is acting as its own Paying Agent, the Company will segregate
and hold in trust as provided in Section 10.2) an amount of money
sufficient to pay the Redemption Price of, and any accrued interest (including
any Additional Interest) on, all the Securities (or portions thereof) that are
to be redeemed on that date.


 


SECTION 11.7.  Payment of Securities Called for Redemption.


 


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


 


(b)                                 Upon
presentation of any Security redeemed in part only, the Company shall execute
and the Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the


 


59





















 


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.


 


(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


 


60





















 


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


 


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


 


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


 


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


 


SECTION 12.3.  Payment Permitted If No Default.


 


Nothing contained in this Article XII or
elsewhere in this Indenture or in any of the Securities shall prevent (a) the
Company, at any time, except during the pendency of the conditions described in
paragraph (a) of Section 12.2 or of any Proceeding referred to
in


 


61





















 


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


 


62





















 


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 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.


 


63





















 


(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.


 


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


 


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


 


SECTION 12.12.  Article Applicable to Paying Agents.


 


If at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
“Trustee” as
used in this Article XII shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XII in addition to or in
place of the Trustee; provided,
that


 


64





















 


Sections
12.8 and 12.11 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.


 


* * * *


 


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


 


* * *
*


 


65





















 


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:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Marc Holliday

  
	
   

  	
   

  	
  Title:
  President & Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
						



 


66





















 


Schedule A


 


DETERMINATION OF LIBOR


 


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


 


(1)                                  On
the second LIBOR Business Day (as defined below) prior to an Interest Payment
Date (except with respect to the first interest payment period, such date shall
be May 18, 2005) (each such
day, a “LIBOR Determination Date”),
LIBOR for any given security shall for the following interest payment period
equal the rate, as obtained by the Calculation Agent from Bloomberg Financial
Markets Commodities News, for three-month
Eurodollar deposits that appears on Dow Jones Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions), or such other page as
may replace such Page 3750, as of 11:00 a.m. (London time) on such
LIBOR Determination Date.


 


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


 


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


 


A-1





















 


Exhibit A


 


Form of Officer’s Financial Certificate


 


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


 


As of [Quarterly/Annual
Financial Date], 20    


 


	
  Senior
  secured indebtedness for borrowed money (“Debt”)

  	
   

  	
  $

  	
   

  	
   

  
	
  Senior
  unsecured Debt

  	
   

  	
  $

  	
   

  	
   

  
	
  Subordinated
  Debt

  	
   

  	
  $

  	
   

  	
   

  
	
  Total Debt

  	
   

  	
  $

  	
   

  	
   

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

  	
   

  	
   

  	
  %

  



 


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


 


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


 


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


 





















 


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


 


	
   

  	
  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