**Exhibit 10.24**

 

JUNIORSUBORDINATED INDENTURE

 

between

 

 

GKKCAPITAL LP

 

 

and

 

 

JPMORGAN CHASE BANK, NATIONALASSOCIATION,

*as Trustee*

 

 

Dated as of August 9, 2005

 

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JUNIOR SUBORDINATED INDENTURE, dated as of August 9,2005, between GKK Capital LP, a Delaware limited partnership (the “Company”), and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association, as Trustee (in suchcapacity, the “Trustee”).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company has duly authorized the execution and deliveryof this Indenture to provide for the issuance of its unsecured juniorsubordinated deferrable interest notes (the “Securities”) issued to evidence loans made to the Company of theproceeds from the issuance by Gramercy Capital Trust II, a Delaware statutorytrust (the “Trust”), ofundivided preferred beneficial interests in the assets of the Trust (the “Preferred Securities”) and undividedcommon beneficial interests in the assets of the Trust (the “Common Securities” and, collectivelywith the Preferred Securities, the “TrustSecurities”), and to provide the terms and conditions upon which theSecurities are to be authenticated, issued and delivered; and

 

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

 

NOW, THEREFORE, thisIndenture Witnesseth:

 

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

 

**ARTICLE I**

**DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION**

** **

SECTION 1.1  *Definitions*.

 

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

 

(a)                                  theterms defined in this Article I have the meanings assigned to themin this Article I;

 

(b)                                 thewords “include”, “includes” and “including” shall be deemed to be followed bythe phrase “without limitation”;

 

(c)                                  allaccounting terms not otherwise defined herein have the meanings assigned tothem in accordance with GAAP;

 

(d)                                 unlessthe 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)                                  thewords “hereby”, “herein”, “hereof” and “hereunder” and other words of similarimport refer to this Indenture as a whole and not to any particular Article, Section orother subdivision;

 

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

 

(g)                                 themasculine, 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.

 

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

 

“*AdditionalInterest*” means the interest, if any, that shall accrue on anyamounts payable on the Securities, the payment of which has not been made onthe applicable Interest Payment Date and which shall accrue at the rate perannum specified or determined as specified in such Security, in each case tothe extent legally enforceable.

 

“*AdditionalTax Sums*” has the meaning specified in Section 10.5.

 

“*AdditionalTaxes*” means taxes, duties or other governmental charges imposed onthe Trust as a result of a Tax Event (which, for the sake of clarity, does notinclude amounts required to be deducted or withheld by the Trust from paymentsmade by the Trust to or for the benefit of the Holder of, or any Person thatacquires a beneficial interest in, the Securities).

 

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

 

“*ApplicableDepositary Procedures*” means, with respect to any transfer ortransaction involving a Global Security or beneficial interest therein, the rules andprocedures of the Depositary for such Security, in each case to the extentapplicable to such transaction and as in effect from time to time.

 

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

 

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

 

“*Board ofDirectors*” means the board of directors of the Company or any dulyauthorized committee of that board.

 

“*BoardResolution*” means a copy of a resolution certified by the Secretaryor an Assistant Secretary of the Company to have been duly adopted by the Boardof

 

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Directors and to be in full force and effect on the date of suchcertification.

 

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

 

“*CalculationAgent*” has the meaning specified in Section 10.4.

 

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

 

“*CommonSecurities*” has the meaning specified in the first recital of thisIndenture.

 

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

 

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

 

“*CorporateTrust Office*” means the principal office of the Trustee at which atany particular time its corporate trust business shall be administered, whichoffice at the date of this Indenture is located at 600 Travis, 50th Floor, Houston, Texas 77019Attn: Worldwide Securities Services—Gramercy Capital Trust II.

 

“*Debt*”means, with respect to any Person, whether recourse is to all or a portion ofthe assets of such Person, whether currently existing or hereafter incurred andwhether or not contingent and without duplication, (i) every obligation ofsuch Person for money borrowed; (ii) every obligation of such Personevidenced by bonds, debentures, notes or other similar instruments, includingobligations incurred in connection with the acquisition of property, assets orbusinesses; (iii) every reimbursement obligation of such Person withrespect to letters of credit, bankers’ acceptances or similar facilities issuedfor the account of such Person; (iv) every obligation of such Personissued or assumed as the deferred purchase price of property or services (butexcluding trade accounts payable or other accrued liabilities arising in theordinary course of business); (v) every capital lease obligation of suchPerson; (vi) all indebtedness of such Person, whether incurred on or priorto the date of this Indenture or thereafter incurred, for claims in respect ofderivative products, including interest rate, foreign exchange rate andcommodity forward contracts, options and swaps and similar arrangements; (vii) everyobligation of the type referred to in clauses (i) through (vi) ofanother Person and all dividends of another Person the payment of which, ineither 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 thetype referred to in clauses (i) through (vii).

 

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“*DefaultedInterest*” has the meaning specified in Section 3.1.

 

“*DelawareTrustee*” means, with respect to the Trust, the Person identified asthe “Delaware Trustee” in the Trust Agreement, solely in its capacity asDelaware Trustee of the Trust under the Trust Agreement and not in itsindividual capacity, or its successor in interest in such capacity, or anysuccessor Delaware Trustee appointed as therein provided.

 

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

 

“*DepositaryParticipant*” means a broker, dealer, bank, other financialinstitution or other Person for whom from time to time a Depositary effectsbook-entry transfers and pledges of securities deposited with the Depositary.

 

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

 

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

 

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

 

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

 

“*Event ofDefault*” has the meaning specified in Section 5.1.

 

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

 

“*ExpirationDate*” has the meaning specified in Section 1.4.

 

“*ExtensionPeriod*” has the meaning specified in Section 3.9.

 

“*FixedRate Period*” shall have the meaning in the form of Security setforth in Section 2.1.

 

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

 

“*GlobalSecurity*” means a Security that evidences all or part of theSecurities, the ownership and transfers of which shall be made through bookentries by a Depositary.

 

“*GovernmentObligation*” means (a) any security that is (i) a directobligation of the United States of America of which the full faith and creditof the United States of America is pledged or (ii) an obligation of aPerson controlled or supervised by and acting as an agency or instrumentalityof the United States of America or the payment of which is unconditionally

 

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guaranteed as a full faith and credit obligation by the United Statesof America, which, in either case (i) or (ii), is not callable orredeemable at the option of the issuer thereof, and (b) any depositaryreceipt issued by a bank (as defined in Section 3(a)(2) of theSecurities Act) as custodian with respect to any Government Obligation that isspecified in clause (a) above and held by such bank for the account of theholder of such depositary receipt, or with respect to any specific payment ofprincipal of or interest on any Government Obligation that is so specified andheld, *provided**,* that (except as required by law) such custodian is notauthorized to make any deduction from the amount payable to the holder of suchdepositary receipt from any amount received by the custodian in respect of theGovernment Obligation or the specific payment of principal or interestevidenced by such depositary receipt.

 

“*Holder*”means a Person in whose name a Security is registered in the SecuritiesRegister.

 

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

 

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

 

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

 

“*InvestmentCompany Event*” means the receipt by the Company of an Opinion ofCounsel experienced in such matters to the effect that, as a result of theoccurrence of a change in law or regulation (including any announcedprospective change) or a written change in interpretation or application of lawor regulation by any legislative body, court, governmental agency or regulatoryauthority, 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 “investmentcompany” 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.

 

“*LIBORBusiness Day*” has the meaning specified in Schedule A.

 

“*LIBORDetermination Date*” has the meaning specified in Schedule A.

 

“*LiquidationAmount*” 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 ofprincipal becomes due and payable as therein or herein *provided,*whether at the Stated Maturity or by declaration of acceleration, call forredemption or otherwise.

 

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

 

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

 

“*OperativeDocuments*” means the Trust Agreement, the Indenture, the PurchaseAgreements and the Securities.

 

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

 

“*OptionalRedemption Price*” has the meaning set forth in Section 11.1.

 

“*OriginalIssue Date*” means the date of original issuance of each Security.

 

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

 

(i)                                     Securitiestheretofore canceled by the Trustee or delivered to the Trustee forcancellation;

 

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

 

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

 

*provided*, that indetermining whether the Holders of the requisite principal amount ofOutstanding Securities have given any request, demand, authorization,direction, notice, consent or waiver hereunder, Securities owned by the Companyor any other obligor upon the Securities or any Affiliate of the Company orsuch other obligor shall be disregarded and deemed not to be Outstanding,unless the Company shall hold all Outstanding Securities, except that, indetermining whether the Trustee shall be protected in relying upon any suchrequest, demand, authorization, direction, notice, consent or waiver, onlySecurities that a Responsible Officer of the Trustee actually knows to be soowned shall be so disregarded. Securities so owned that have been pledged ingood faith may be regarded as Outstanding if the pledgee establishes to thesatisfaction of the Trustee the pledgee’s right so to act with respect to suchSecurities and that the pledgee is not the Company or any other obligor uponthe Securities or any Affiliate of the Company or such other obligor.Notwithstanding anything herein to the contrary, Securities initially issued tothe Trust that are owned by the Trust shall be deemed to be Outstanding

 

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notwithstanding the ownership by the Company or an Affiliate of anybeneficial interest in the Trust.

 

“*PayingAgent*” means the Trustee or any Person authorized by the Company topay the principal of or any premium or interest on, or other amounts in respectof, 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, limitedliability company, trust, unincorporated association or government, or anyagency or political subdivision thereof, or any other entity of whatevernature.

 

“*Place ofPayment*” means, with respect to the Securities, the Corporate TrustOffice of the Trustee.

 

“*PreferredSecurities*” has the meaning specified in the first recital of thisIndenture.

 

“*PredecessorSecurity*” of any particular Security means every previous Securityevidencing all or a portion of the same debt as that evidenced by suchparticular Security. For the purposes of this definition, any securityauthenticated and delivered under Section 3.6 in lieu of amutilated, destroyed, lost or stolen Security shall be deemed to evidence thesame debt as the mutilated, destroyed, lost or stolen Security.

 

“*Proceeding*”has the meaning specified in Section 12.2.

 

“*PropertyTrustee*” means the Person identified as the “Property Trustee” inthe Trust Agreement, solely in its capacity as Property Trustee of the Trustunder the Trust Agreement and not in its individual capacity, or its successorin interest in such capacity, or any successor Property Trustee appointed astherein provided.

 

“*PurchaseAgreements*” means the two agreements, each dated as of the datehereof, between the Company and the Trust and the Purchaser(s) named therein.

 

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

 

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

 

“*ReferenceBanks*” has the meaning specified in Schedule A.

 

“*RegularRecord Date*” for the interest payable on any Interest Payment Datewith respect to the Securities means the date that is fifteen (15) dayspreceding such Interest Payment Date (whether or not a Business Day).

 

“*ResponsibleOfficer*” means, when used with respect to the Trustee, the officerin the Worldwide Securities Services department of the Trustee having directresponsibility for the

 

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administration of this Indenture.

 

“*RightsPlan*” means a plan of the Company providing for the issuance by theCompany to all holders of its limited partnership interests of rights entitlingthe holders thereof to subscribe for or purchase shares of any class or seriesof limited partnership interests of the Company which rights (i) aredeemed to be transferred with such shares of such limited partnership interestsand (ii) are also issued in respect of future issuances of such limitedpartnership interests, in each case until the occurrence of a specified eventor events.

 

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

 

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

 

“*SecuritiesRegister*” and “*SecuritiesRegistrar*” have the respective meanings specified in Section 3.5.

 

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

 

“*Side Letter*” means the side letter regardingadditional financings dated August 9, 2005 from the Company and GramercyCapital Corp. to the Trust.

 

“*SpecialEvent*” means the occurrence of an Investment Company Event or a TaxEvent.

 

“*SpecialRecord Date*” for the payment of any Defaulted Interest means a datefixed by the Trustee pursuant to Section 3.1.

 

“*SpecialRedemption Price*” has the meaning set forth in Section 11.2.

 

“*StatedMaturity*” means October 30, 2035.

 

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

 

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voting power by reason of any contingency.

 

“*Tax Event*”means the receipt by the Company of an Opinion of Counsel experienced in suchmatters to the effect that, as a result of (a) any amendment to or change(including any announced prospective change) in the laws or any regulationsthereunder of the United States or any political subdivision or taxingauthority thereof or therein or (b) any judicial decision or any officialadministrative pronouncement (including any private letter ruling, technicaladvice memorandum or field service advice) or regulatory procedure, includingany notice or announcement of intent to adopt any such pronouncement orprocedure (an “Administrative Action”),regardless of whether such judicial decision or Administrative Action is issuedto or in connection with a proceeding involving the Company or the Trust andwhether or not subject to review or appeal, which amendment, change, judicialdecision or Administrative Action is enacted, promulgated or announced, in eachcase, on or after the date of issuance of the Securities, there is more than aninsubstantial 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 taxwith respect to income received or accrued on the Securities, (ii) interestpayable by the Company on the Securities is not, or within ninety (90) days ofthe date of such opinion, will not be, deductible by the Company, in whole orin part, for United States federal income tax purposes, or (iii) the Trustis, or will be within ninety (90) days of the date of such opinion, subject tomore than a de minimis amountof other taxes, duties or other governmental charges.

 

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

 

“*TrustAgreement*” means the Amended and Restated Trust Agreement executedand delivered by the Company, the Property Trustee, Chase Bank USA, NationalAssociation, as Delaware Trustee and the Administrative Trustees named therein,contemporaneously with the execution and delivery of this Indenture, for thebenefit of the holders of the Trust Securities, as amended or supplemented fromtime to time.

 

“*Trustee*”means the Person named as the “Trustee”in the first paragraph of this instrument, solely in its capacity as such andnot in its individual capacity, until a successor Trustee shall have becomesuch pursuant to the applicable provisions of this Indenture, and, thereafter, “Trustee” shall mean or include eachPerson who is then a Trustee hereunder.

 

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

 

“*TrustSecurities*” has the meaning specified in the first recital of thisIndenture.

 

SECTION 1.2  *Compliance Certificate andOpinions*.

 

(a)                                  Uponany application or request by the Company to the Trustee to take any actionunder any provision of this Indenture, the Company shall, if requested by theTrustee, furnish to the Trustee an Officers’ Certificate stating that allconditions precedent (including covenants compliance with which constitutes acondition precedent), if any, provided for in this Indenture relating to theproposed action have been complied with and an Opinion of Counsel stating that

 

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in the opinion ofsuch counsel all such conditions precedent (including covenants compliance withwhich constitutes a condition precedent), if any, have been complied with.

 

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

 

(i)                                     astatement by each individual signing such certificate or opinion that suchindividual has read such covenant or condition and the definitions hereinrelating thereto;

 

(ii)                                  abrief statement as to the nature and scope of the examination or investigationupon which the statements or opinions of such individual contained in suchcertificate or opinion are based;

 

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

 

(iv)                              astatement as to whether, in the opinion of such individual, such condition orcovenant has been complied with.

 

SECTION 1.3  *Forms of DocumentsDelivered to Trustee*.

 

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

 

(b)                                 Anycertificate or opinion of an officer of the Company may be based, insofar as itrelates to legal matters, upon a certificate or opinion of, or representationsby, counsel, unless such officer knows, or after reasonable inquiry shouldknow, that the certificate or opinion or representations with respect tomatters 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 relatesto factual matters, upon a certificate or opinion of, or representations by, anofficer or officers of the Company stating that the information with respect tosuch factual matters is in the possession of the Company, unless such counselknows, or after reasonable inquiry should know, that the certificate or opinionor representations with respect to such matters are erroneous.

 

(c)                                  Whereany Person is required to make, give or execute two or more applications,requests, consents, certificates, statements, opinions or other instrumentsunder this Indenture, they may, but need not, be consolidated and form oneinstrument.

 

(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 bediscovered therein, a new document or instrument may be substituted therefor incorrected form with the same force

 

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and effect as iforiginally received in the corrected form and, irrespective of the date ordates of the actual execution and/or delivery thereof, such substitute documentor instrument shall be deemed to have been executed and/or delivered as of thedate or dates required with respect to the document or instrument for which itis substituted.  Without limiting thegenerality of the foregoing, any Securities issued under the authority of suchdefective document or instrument shall nevertheless be the valid obligations ofthe Company entitled to the benefits of this Indenture equally and ratably withall other Outstanding Securities.

 

SECTION 1.4 *Acts of Holders*.

 

(a)                                  Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided by this Indenture to be given to or taken by Holders may beembodied in and evidenced by one or more instruments of substantially similartenor signed by such Holders in person or by an agent thereof duly appointed inwriting; and, except as herein otherwise expressly provided, such action shallbecome effective when such instrument or instruments (including any appointmentof an agent) is or are delivered to the Trustee, and, where it is herebyexpressly required, to the Company. Such instrument or instruments (and theaction embodied therein and evidenced thereby) are herein sometimes referred toas the “Act” of the Holderssigning such instrument or instruments. Proof of execution of any suchinstrument or of a writing appointing any such agent shall be sufficient forany purpose of this Indenture and conclusive in favor of the Trustee and theCompany, if made in the manner provided in this Section 1.4.

 

(b)                                 Thefact and date of the execution by any Person of any such instrument or writingmay be proved by the affidavit of a witness of such execution or by thecertificate of any notary public or other officer authorized by law to takeacknowledgments of deeds, certifying that the individual signing suchinstrument or writing acknowledged to him or her the execution thereof. Wheresuch execution is by a Person acting in other than his or her individualcapacity, such certificate or affidavit shall also constitute sufficient proofof his or her authority.  The fact anddate of the execution by any Person of any such instrument or writing, or theauthority of the Person executing the same, may also be proved in any othermanner that the Trustee or the Company, as the case may be, deems sufficientand in accordance with such reasonable rules as the Trustee may determine.

 

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

 

(d)                                 Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction by the Holder of any Security shall bind every future Holder of the sameSecurity and the Holder of every Security issued upon the registration oftransfer thereof or in exchange therefor or in lieu thereof in respect ofanything done or suffered to be done by the Trustee or the Company in reliancethereon, whether or not notation of such action is made upon such Security.

 

(e)                                  Withoutlimiting the foregoing, a Holder entitled to take any action hereunder withregard to any particular Security may do so with regard to all or any part ofthe principal amount of such Security or by one or more duly appointed agentseach of which may do so pursuant to such appointment with regard to all or anypart of such principal amount.

 

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(f)                                    Exceptas set forth in paragraph (g) of this Section 1.4, the Companymay set any day as a record date for the purpose of determining the Holders ofOutstanding Securities entitled to give, make or take any request, demand,authorization, direction, notice, consent, waiver or other action provided orpermitted by this Indenture to be given, made or taken by Holders ofSecurities. If any record date is set pursuant to this paragraph, the Holdersof Outstanding Securities on such record date, and no other Holders, shall beentitled to take the relevant action, whether or not such Holders remainHolders after such record date; *provided*,that no such action shall be effective hereunder unless taken on or prior tothe applicable Expiration Date (as defined in Section 1.4(h)) byHolders of the requisite principal amount of Outstanding Securities on suchrecord date.  Nothing in this paragraphshall be construed to prevent the Company from setting a new record date forany action for which a record date has previously been set pursuant to thisparagraph (whereupon the record date previously set shall automatically andwith no action by any Person be canceled and of no effect). Promptly after anyrecord 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 theapplicable Expiration Date to be given to the Trustee in writing and to eachHolder of Securities in the manner set forth in Section 1.6.

 

(g)                                 TheTrustee may set any day as a record date for the purpose of determining theHolders of Outstanding Securities entitled to join in the giving or making of (i) anyNotice of Default, (ii) any declaration of acceleration or rescission orannulment thereof referred to in Section 5.2, (iii) anyrequest to institute proceedings referred to in Section 5.7(b) or(iv) any direction referred to in Section 5.12. If any recorddate is set pursuant to this paragraph, the Holders of Outstanding Securities onsuch record date, and no other Holders, shall be entitled to join in suchnotice, declaration, request or direction, whether or not such Holders remainHolders after such record date; *provided*,that no such action shall be effective hereunder unless taken on or prior tothe applicable Expiration Date by Holders of the requisite principal amount ofOutstanding Securities on such record date. Nothing in this paragraph shall beconstrued to prevent the Trustee from setting a new record date for any actionfor which a record date has previously been set pursuant to this paragraph(whereupon the record date previously set shall automatically and with noaction by any Person be canceled and of no effect). Promptly after any recorddate 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 theapplicable Expiration Date to be given to the Company in writing and to eachHolder of Securities in the manner set forth in Section 1.6.

 

(h)                                 Withrespect to any record date set pursuant to paragraph (f) or (g) ofthis Section 1.4, the party hereto that sets such record date maydesignate any day as the “*Expiration Date*”and from time to time may change the Expiration Date to any earlier or laterday; *provided*, that no suchchange shall be effective unless notice of the proposed new Expiration Date isgiven to the other party hereto in writing, and to each Holder of Securities inthe manner set forth in Section 1.6, on or prior to the existingExpiration Date. If an Expiration Date is not designated with respect to anyrecord date set pursuant to this Section 1.4, the party hereto thatset such record date shall be deemed to have initially designated the ninetieth(90th) day after suchrecord date as the Expiration Date with respect thereto, subject to its rightto change the Expiration Date as provided in this paragraph. Notwithstandingthe foregoing, no Expiration Date shall be later than the one hundred eightieth(180th) day after theapplicable record date.

 

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SECTION 1.5  *Notices, Etc. to Trusteeand Company*.

 

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

 

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

 

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

 

SECTION 1.6  *Notice to Holders; Waiver*.

 

Where this Indenture provides for notice toHolders of any event, such notice shall be sufficiently given (unless otherwiseherein expressly provided) if in writing and mailed, first class, postageprepaid, to each Holder affected by such event to the address of such Holder asit 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 ofsuch notice. If, by reason of the suspension of or irregularities in regularmail service or for any other reason, it shall be impossible or impracticableto mail notice of any event to Holders when said notice is required to be givenpursuant to any provision of this Indenture, then any manner of giving suchnotice as shall be satisfactory to the Trustee shall be deemed to be asufficient giving of such notice. In any case where notice to Holders is givenby mail, neither the failure to mail such notice, nor any defect in any noticeso mailed, to any particular Holder shall affect the sufficiency of such noticewith respect to other Holders. Where this Indenture provides for notice in anymanner, such notice may be waived in writing by the Person entitled to receivesuch notice, either before or after the event, and such waiver shall be theequivalent of such notice. Waivers of notice by Holders shall be filed with theTrustee, but such filing shall not be a condition precedent to the validity ofany action taken in reliance upon such waiver.

 

SECTION 1.7  *Effect of Headings andTable of Contents*.

 

The Article and Section headingsherein and the Table of Contents are for convenience only and shall not affectthe construction of this Indenture.

 

SECTION 1.8  *Successors and Assigns*.

 

This Indenture shall be binding upon andshall 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 ispermitted under Article VIII and pursuant to which the assigneeagrees in writing to perform the Company’s obligations hereunder, the

 

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Company shall not assign its obligations hereunder.

 

SECTION 1.9  *Separability Clause*.

 

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

 

SECTION 1.10  *Benefits of Indenture*.

 

Nothing in this Indenture or in theSecurities, express or implied, shall give to any Person, other than theparties hereto and their successors and assigns, the holders of Senior Debt,the Holders of the Securities and, to the extent expressly provided in Sections5.2, 5.8, 5.9, 5.11, 5.13, 9.2 and 10.7,the holders of Preferred Securities, any benefit or any legal or equitableright, remedy or claim under this Indenture.

 

SECTION 1.11 *Governing Law*.

 

**This Indenture andthe rights and obligations of each of the Holders, the Company and the Trusteeshall be construed and enforced in accordance with and governed by the laws ofthe 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 AGAINSTANY PARTY HERETO OR WITH RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY BEBROUGHT IN OR REMOVED TO THE COURTS OF THE STATE OF NEW YORK, IN AND FOR THECOUNTY OF NEW YORK, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERNDISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN). BYEXECUTION AND DELIVERY OF THIS INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND INRESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THEAFORESAID COURTS (AND COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGSARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE.

 

SECTION 1.13  Non-Business Days.

 

If any Interest Payment Date, Redemption Dateor 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 respectof such Security shall not be made on such date, but shall be made on the nextsucceeding Business Day (and no interest shall accrue in respect of the amountswhose payment is so delayed for the period from and after such Interest PaymentDate, Redemption Date or Stated Maturity, as the case may be, until such nextsucceeding Business Day) except that, if such Business Day falls in the nextsucceeding calendar year, such payment shall be made on the immediatelypreceding Business Day, in each case with the same force and effect as if madeon the Interest Payment

 

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Date or Redemption Date or at the Stated Maturity.

 

**ARTICLE II**

**SECURITY FORMS**

** **

SECTION 2.1 *Form of Security*.

 

Any Security issued hereunder shall be insubstantially the following form:

 

**GKK CAPITAL LP**

 

**Floating Rate Junior Subordinated Note due2035**

 
| No.            | $51,550,000 |
|-----------------------------------------------------------------------|-------------|

 

GKK Capital LP, a limited partnershiporganized and existing under the laws of Delaware (hereinafter called the “Company,” which term includes anysuccessor Person under the Indenture hereinafter referred to), for valuereceived, hereby promises to pay to JPMorgan Chase Bank, National Association,not in its individual capacity, but solely as Property Trustee for GramercyCapital Trust II, or registered assigns, the principal sum of Fifty One MillionFive Hundred Fifty Thousand Dollars ($51,550,000) **[*if the Security is a Global Security,then insert* — orsuch other principal amount represented hereby as may be set forth in therecords of the Securities Registrar hereinafter referred to in accordance withthe Indenture]** on October 30, 2035. The Company furtherpromises to pay interest on said principal sum from August 9, 2005, orfrom the most recent Interest Payment Date to which interest has been paid orduly provided for, quarterly (subject to deferral as set forth herein) inarrears on January 30, April 30, July 30 and October 30 ofeach year, commencing October 30, 2005, or if any such day is not aBusiness Day, on the next succeeding Business Day (and no interest shall accruein respect of the amounts whose payment is so delayed for the period from andafter 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 eachcase, with the same force and effect as if made on the Interest Payment Date,at a fixed rate equal to 7.75% per annum through the interest payment date in October 2015(“Fixed Rate Period”) and thereafter at a variable rate equal to LIBORplus 3.00% per annum, together with Additional Tax Sums, if any, as provided inSection 10.5 of the Indenture, until the principal hereof is paidor duly provided for or made available for payment; *provided*, *further*,that any overdue principal, premium, if any, or Additional Tax Sums and anyoverdue installment of interest shall bear Additional Interest at a fixed rateequal to 7.75% through the interest payment date in October 2015 andthereafter at a variable rate equal to LIBOR plus 3.00% per annum (to the extentthat the payment of such interest shall be legally enforceable), compoundedquarterly, from the dates such amounts are due until they are paid or madeavailable for payment, and such interest shall be payable on demand.

 

During the Fixed Rate Period, the amount ofinterest payable shall be computed on the basis of a 360-day year of twelve 30-daymonths and the amount payable for any partial period shall be computed on thebasis of the number of days elapsed in a 360-day year of twelve 30-day

 

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months.  Upon expiration of theFixed Rate Period, the amount of interest payable for any Interest PaymentPeriod will be computed on the basis of a 360-day year and the actual number ofdays elapsed in the relevant interest period. The interest so payable, andpunctually paid or duly provided for, on any Interest Payment Date shall, asprovided 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 businesson the Regular Record Date for such interest installment.  Any such interest not so punctually paid orduly provided for shall forthwith cease to be payable to the Holder on suchRegular Record Date and may either be paid to the Person in whose name thisSecurity (or one or more Predecessor Securities) is registered at the close ofbusiness on a Special Record Date for the payment of such Defaulted Interest tobe fixed by the Trustee, notice whereof shall be given to Holders of Securitiesnot less than ten (10) days prior to such Special Record Date, or be paidat any time in any other lawful manner not inconsistent with the requirementsof any securities exchange on which the Securities may be listed, and upon suchnotice as may be required by such exchange, all as more fully provided in theIndenture.

 

So long as no Event of Default has occurredand is continuing, the Company shall have the right, at any time and from timeto time during the term of this Security, to defer the payment of interest onthis Security for a period of up to four (4) consecutive quarterly interest payment periods (each such period,an “*Extension Period*”), duringwhich Extension Period(s), no interest shall be due and payable (except anyAdditional Tax Sums that may be due and payable).  No Extension Period shall end on a date otherthan an Interest Payment Date, and no Extension Period shall extend beyond theStated Maturity of the principal of this Security.  No interest shall be due and payable duringan Extension Period (except any Additional Tax Sums that may be due andpayable), except at the end thereof.  Atthe end of any such Extension Period, the Company shall pay all interest thenaccrued and unpaid on this Security. Prior to the termination of any such Extension Period, the Company mayfurther defer the payment of interest; *provided*,that (i) all such previous and further extensions comprising suchExtension Period do not exceed four (4) quarterly interest paymentperiods, (ii) no Extension Period shall end on a date other than anInterest Payment Date and (iii) no Extension Period shall extend beyondthe Stated Maturity of the principal of this Security.  Upon the termination of any such ExtensionPeriod and upon the payment of all accrued and unpaid interest then due on anyInterest Payment Date, the Company may elect to begin a new Extension Period; *provided*, that (i) such ExtensionPeriod does not exceed four (4) quarterly interest payment periods, (ii) noExtension Period shall end on a date other than an Interest Payment Date and (iii) noExtension Period shall extend beyond the Stated Maturity of the principal ofthis Security.  The Company shall givethe Holder of this Security and the Trustee written notice of its election tobegin any such Extension Period at least thirty (30) days’ prior to the nextsucceeding Interest Payment Date on which interest on this Security would bepayable but for such deferral.

 

During any such Extension Period, the Company shall not (i) declareor pay any dividends or distributions on, or redeem, purchase, acquire or makea liquidation payment with respect to, any of the Company’s limited partnershipinterests or (ii) make any payment of principal of or any interest orpremium, if any, on or repay, repurchase or redeem any debt securities of theCompany that rank *pari passu* in all respects with or junior ininterest to this Security (other than (a) repurchases, redemptions orother acquisitions of limited partnership interests of the Company inconnection with (1) any employment contract, benefit plan or other similararrangement with or for the benefit of any one or more employees, officers,directors or

 

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consultants, (2) a dividend reinvestment or limited partnershipinterests purchase plan and (3) the issuance of limited partnershipinterests of the Company (or securities convertible into or exercisable forsuch units of limited partnership interests) as consideration in an acquisitiontransaction entered into prior to the applicable Extension Period, (b) asa result of an exchange or conversion of any class or series of the Company’slimited partnership interests (or any capital stock or limited partnershipinterests of a Subsidiary of the Company) for any class or series of theCompany’s limited partnership interests or of any class or series of theCompany’s indebtedness for any class or series of the Company’s limitedpartnership interests, (c) the purchase of fractional interests in sharesof the Company’s limited partnership interests pursuant to the conversion orexchange provisions of such limited partnership interests or the security beingconverted or exchanged, (d) any declaration of a dividend in connectionwith any Rights Plan, the issuance of rights, limited partnership interests orother property under any Rights Plan, or the redemption or repurchase of rightspursuant thereto or (e) any dividend in the form of limited partnershipinterests, warrants, options or other rights where the dividend limited partnershipinterests or the limited partnership interests issuable upon exercise of suchwarrants, options or other rights is the same stock as that on which thedividend is being paid or ranks *pari passu*with or junior to such limited partnership interests).

 

Payment of principal of, premium, if any, andinterest on this Security shall be made in such coin or currency of the UnitedStates of America as at the time of payment is legal tender for payment ofpublic and private debts.  Payments ofprincipal, premium, if any, and interest due at the Maturity of this Securityshall be made at the Place of Payment upon surrender of such Securities to thePaying Agent, and payments of interest shall be made, subject to such surrenderwhere applicable, by wire transfer at such place and to such account at abanking institution in the United States as may be designated in writing to thePaying Agent at least ten (10) Business Days prior to the date for paymentby the Person entitled thereto unless proper written transfer instructions havenot been received by the relevant record date, in which case such paymentsshall be made by check mailed to the address of such Person as such addressshall appear in the Security Register. Notwithstanding the foregoing, so longas the Holder of this Security is the Property Trustee, the payment of theprincipal of (and premium, if any) and interest (including any overdueinstallment of interest and Additional Tax Sums, if any) on this Security willbe made at such place and to such account as may be designated by the PropertyTrustee.

 

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

 

Unless the certificate of authentication hereonhas been executed by the Trustee by manual signature, this Security shall notbe entitled to any benefit under the Indenture or be valid or obligatory forany purpose.

 

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**[FORM OF REVERSE OF SECURITY]**

 

This Security is one of a duly authorizedissue of securities of the Company (the “*Securities*”)issued under the Junior Subordinated Indenture, dated as of August 9, 2005(the “*Indenture*”), between theCompany and JPMorgan Chase Bank, National Association, as Trustee (in suchcapacity, the “*Trustee*,” whichterm includes any successor trustee under the Indenture), to which Indentureand all indentures supplemental thereto reference is hereby made for astatement of the respective rights, limitations of rights, duties andimmunities thereunder of the Company, the Trustee, the holders of Senior Debt,the Holders of the Securities and the holders of the Preferred Securities, andof the terms upon which the Securities are, and are to be, authenticated anddelivered.

 

All terms used in this Security that aredefined in the Indenture or in the Amended and Restated Trust Agreement, datedas of August 9, 2005 (as modified, amended or supplemented from time totime, the “*Trust Agreement*”),relating to the Gramercy Capital Trust II (the “*Trust*”) among the Company, as Depositor, the Trustees namedtherein and the Holders from time to time of the Trust Securities issuedpursuant thereto, shall have the meanings assigned to them in the Indenture orthe Trust Agreement, as the case may be.

 

The Company may, on any Interest PaymentDate, 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 shorternotice period shall be satisfactory to the Trustee) on or after October 30,2010 and subject to the terms and conditions of Article XI of theIndenture, redeem this Security in whole at any time or in part from time totime at a Redemption Price equal to one hundred percent (100%) of the principalamount hereof, together, in the case of any such redemption, with accruedinterest, including any Additional Interest, through but excluding the datefixed as the Redemption Date.

 

In addition, upon the occurrence and duringthe continuation of a Special Event, the Company may, at its option, upon notless than thirty (30) days’ nor more than sixty (60) days’ written notice tothe Holders of the Securities (unless a shorter notice period shall besatisfactory to the Trustee), redeem this Security, in whole but not in part,subject to the terms and conditions of Article XI of the Indentureat 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 excludingthe date fixed as the Redemption Date.

 

In the event of redemption of this Securityin part only, a new Security or Securities for the unredeemed portion hereofwill be issued in the name of the Holder hereof upon the cancellationhereof.  If less than all the Securitiesare to be redeemed, the particular Securities to be redeemed shall be selectednot more than sixty (60) days prior to the Redemption Date by the Trustee fromthe Outstanding Securities not previously called for redemption, by such methodas the Trustee shall deem fair and appropriate and which may provide for theselection for redemption of a portion of the principal amount of any Security.

 

The Indenture permits, with certainexceptions as therein provided, the Company and the Trustee at any time toenter into a supplemental indenture or indentures for the purpose of modifyingin any manner the rights and obligations of the Company and of the Holders ofthe

 

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Securities, with the consent of the Holders of not less than a majorityin principal amount of the Outstanding Securities. The Indenture also containsprovisions permitting Holders of specified percentages in principal amount ofthe Securities, on behalf of the Holders of all Securities, to waive complianceby the Company with certain provisions of the Indenture and certain pastdefaults under the Indenture and their consequences. Any such consent or waiverby the Holder of this Security shall be conclusive and binding upon such Holderand upon all future Holders of this Security and of any Security issued uponthe registration of transfer hereof or in exchange herefor or in lieu hereof,whether or not notation of such consent or waiver is made upon this Security.

 

No reference herein to the Indenture and noprovision of this Security or of the Indenture shall alter or impair theobligation of the Company, which is absolute and unconditional, to pay theprincipal of and any premium, if any, and interest, including any AdditionalInterest (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 tocertain limitations therein set forth, the transfer of this Security isrestricted to transfers to “Qualified Purchasers” (as such term is defined inthe Investment Company Act of 1940, as amended, and is registrable in theSecurities Register, upon surrender of this Security for registration oftransfer at the office or agency of the Company maintained for such purpose,duly endorsed by, or accompanied by a written instrument of transfer in formsatisfactory to the Company and the Securities Registrar and duly executed by,the Holder hereof or such Holder’s attorney duly authorized in writing, andthereupon one or more new Securities, of like tenor, of authorizeddenominations and for the same aggregate principal amount, will be issued tothe designated transferee or transferees.

 

The Securities are issuable only inregistered form without coupons in minimum denominations of $100,000 and anyintegral multiple of $1,000 in excess thereof. As provided in the Indenture andsubject to certain limitations therein set forth, Securities are exchangeablefor a like aggregate principal amount of Securities and of like tenor of adifferent authorized denomination, as requested by the Holder surrendering thesame.

 

No service charge shall be made for any suchregistration of transfer or exchange, but the Company may require payment of asum sufficient to cover any tax or other governmental charge payable inconnection therewith.

 

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

 

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

 

**This Security shallbe construed and enforced in accordance with and governed by**

 

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**the laws of the State of New York, withoutreference to its conflict of laws provisions (other than Section 5-1401 ofthe General Obligations Law).**

 

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

 
|   | GKK Capital LP |
|--------|----------------|
|   |           |
|   |           |
|   | By:            |   |   |
|   | Name:          |
|   | Title:         |

 

SECTION 2.2  *Restricted Legend*.

 

(a)                                  AnySecurity issued hereunder shall bear a legend in substantially the followingform:

 

“**[IFTHIS SECURITY IS A GLOBAL SECURITY INSERT:** THIS SECURITY IS A GLOBAL SECURITYWITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTEREDIN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC.  THIS SECURITY IS EXCHANGEABLE FOR SECURITIESREGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THELIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THISSECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEEOF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BEREGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

 

UNLESS THIS SECURITY IS PRESENTED BY ANAUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR REGISTRATION OFTRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THENAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZEDREPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. ORTO 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 ANYPERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &CO., HAS AN INTEREST HEREIN.]

 

THE SECURITIES REPRESENTED BY THISCERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATIONUNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCHSECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OROTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLEEXEMPTION THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THATTHE SELLER

 

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OF THE SECURITIES MAY BE RELYING ON THEEXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDEDBY RULE 144A UNDER THE SECURITIES ACT.

 

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

 

THE SECURITIES WILL BE ISSUED AND MAY BETRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESSTHAN $100,000. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFEROF SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATEPRINCIPAL AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESSTHEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THEFULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMEDNOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOTLIMITED TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANYINTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NOINTEREST WHATSOEVER IN SUCH SECURITIES.

 

THE HOLDER OF THIS SECURITY, OR ANY INTERESTTHEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS ANDWARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OROTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOMESECURITY 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 WHOSEUNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT INTHE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIREOR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDER OF THESECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITSPURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THEMEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANEMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETSOF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE.”

 

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

 

SECTION 2.3  *Form of Trustee’sCertificate of Authentication*.

 

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

 

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

 

Dated:

 
|   | By:    |                   |   |
|--------|--------|------------------------|--------|
|   |   | *Authenticating Agent* |   |
|   |   |
|   | By:    |                   |   |
|   |   | *Authorized Signatory* |   |

 

SECTION 2.4  *Temporary Securities*.

 

(a)                                  Pendingthe preparation of definitive Securities, the Company may execute, and uponCompany Order the Trustee shall authenticate and deliver, temporary Securitiesthat are printed, lithographed, typewritten, mimeographed or otherwiseproduced, in any denomination, substantially of the tenor of the definitiveSecurities in lieu of which they are issued and with such appropriateinsertions, omissions, substitutions and other variations as the officersexecuting such Securities may determine, as evidenced by their execution ofsuch Securities.

 

(b)                                 Iftemporary Securities are issued, the Company will cause definitive Securitiesto be prepared without unreasonable delay. After the preparation of definitiveSecurities, the temporary Securities shall be exchangeable for definitiveSecurities upon surrender of the temporary Securities at the office or agencyof the Company designated for that purpose without charge to the Holder. Uponsurrender for cancellation of any one or more temporary Securities, the Companyshall execute and the Trustee shall authenticate and deliver in exchangetherefor one or more definitive Securities of any authorized denominationshaving the same Original Issue Date and Stated Maturity and having the sameterms as such temporary Securities. Until so exchanged, the temporarySecurities shall in all respects be entitled to the same benefits under thisIndenture as definitive Securities.

 

SECTION 2.5  *Definitive Securities*.

 

The Securities issued on the Original IssueDate shall be in definitive form.  Thedefinitive Securities shall be printed, lithographed or engraved, or producedby any combination of these methods, if required by any securities exchange onwhich the Securities may be listed, on a steel engraved border or steelengraved borders or may be produced in any other manner permitted by the rules ofany securities exchange on which the Securities may be listed, all as

 

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determined by the officers executing such Securities, as evidenced bytheir execution of such Securities.

 

**ARTICLE III**

** **

**THE SECURITIES**

** **

SECTION 3.1  *Payment of Principal and Interest*.

 

(a)                                  Theunpaid principal amount of the Securities shall bear interest at a fixed rateequal to 7.75% per annum through the interest payment date in October 2015and thereafter at a variable rate of LIBOR plus 3.00% per annum until paid orduly provided for, such interest to accrue from the Original Issue Date or fromthe most recent Interest Payment Date to which interest has been paid or dulyprovided for, and any overdue principal, premium, if any, or

 

Additional Tax Sums and any overdue installmentof interest shall bear Additional Interest at the rate equal to a fixed rateequal to 7.75% per annum through the interest payment date in October 2015and thereafter at a variable rate of LIBOR plus 3.00% per annum, compoundedquarterly from the dates such amounts are due until they are paid or funds forthe payment thereof are made available for payment.

 

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

 

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

 

(i)                                     TheCompany may elect to make payment of any Defaulted Interest to the Persons inwhose names the Securities (or their respective Predecessor Securities) areregistered at the close of business on a Special Record Date for the payment ofsuch Defaulted Interest (a “SpecialRecord Date”), which shall be fixed in the following manner.  At least thirty (30) days prior to the dateof the proposed payment, the Company shall notify the Trustee in writing of theamount of Defaulted Interest proposed to be paid on each Security and the dateof the proposed payment, and at the same time the Company shall deposit withthe Trustee an amount of money equal to the aggregate amount proposed to bepaid in respect of such Defaulted Interest or shall make arrangementssatisfactory to the Trustee for such deposit prior to the date of the proposedpayment, such money when deposited to be held in trust for the benefit of thePersons

 

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entitled to such Defaulted Interest. Thereupon theTrustee shall fix a Special Record Date for the payment of such DefaultedInterest, which shall be not more than fifteen (15) days and not less than ten (10) daysprior to the date of the proposed payment and not less than ten (10) daysafter the receipt by the Trustee of the notice of the proposed payment. TheTrustee shall promptly notify the Company of such Special Record Date and, inthe name and at the expense of the Company, shall cause notice of the proposed paymentof 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 ofsuch Holder as it appears in the Securities Register not less than ten (10) daysprior to such Special Record Date. Notice of the proposed payment of suchDefaulted Interest and the Special Record Date therefor having been so mailed,such Defaulted Interest shall be paid to the Persons in whose names theSecurities (or their respective Predecessor Securities) are registered on suchSpecial Record Date; or

 

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

 

(d)                                 Paymentsof interest on the Securities shall include interest accrued to but excludingthe respective Interest Payment Dates. During the Fixed Rate Period, the amountof interest payable shall be computed on the basis of a 360-day year of twelve30-day months and the amount payable for any partial period shall be computedon the basis of the number of days elapsed in a 360-day year of twelve 30-daymonths. Upon expiration of the Fixed Rate Period, the amount of interestpayable for any Interest Payment Period will be computed on the basis of a 360-dayyear and the actual number of days elapsed in the relevant interest period.

 

(e)                                  Paymentof principal of, premium, if any, and interest on the Securities shall be madein such coin or currency of the United States of America as at the time ofpayment is legal tender for payment of public and private debts. Payments ofprincipal, premium, if any, and interest due at the Maturity of such Securitiesshall be made at the Place of Payment upon surrender of such Securities to thePaying Agent and payments of interest shall be made subject to such surrenderwhere applicable, by wire transfer at such place and to such account at abanking institution in the United States as may be designated in writing to thePaying Agent at least ten (10) Business Days prior to the date for paymentby the Person entitled thereto unless proper written transfer instructions havenot been received by the relevant record date, in which case such paymentsshall be made by check mailed to the address of such Person as such addressshall appear in the Security Register. Notwithstanding the foregoing, so long as the holder of this Security isthe Property Trustee, the payment of the principal of (and premium, if any) andinterest (including any overdue installment of interest and Additional TaxSums, if any) on this Security will be made at such place and to such accountas may be designated by the Property Trustee.

 

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(f)                                    Theparties hereto acknowledge and agree that the holders of the PreferredSecurities have certain rights to direct the Company to modify the InterestPayment Dates and corresponding Redemption Date and Stated Maturity of theSecurities or a portion of the Securities pursuant to the PurchaseAgreement.  In the event any suchmodifications are made to the Securities or a portion of the Securities, appropriatechanges to the form of Security set forth in Article II hereof shall bemade prior to the issuance and authentication of new or replacementSecurities.  Any such modification of theInterest Payment Date and corresponding Redemption Date and Stated Maturitywith respect to any Securities or tranche of Securities shall not require or besubject to the consent of the Trustee.

 

(g)                                 Subjectto the foregoing provisions of this Section 3.1, each Securitydelivered under this Indenture upon transfer of or in exchange for or in lieuof 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 formwithout coupons and shall be issuable in minimum denominations of $100,000 andany integral multiple of $1,000 in excess thereof.

 

SECTION 3.3  *Execution, Authentication,Delivery and Dating*.

 

(a)                                  Atany time and from time to time after the execution and delivery of thisIndenture, the Company may deliver Securities in an aggregate principal amount(including all then Outstanding Securities) not in excess of Fifty-One MillionFive Hundred Fifty Thousand Dollars ($51,550,000) executed by the Company tothe Trustee for authentication, together with a Company Order for theauthentication and delivery of such Securities, and the Trustee in accordancewith the Company Order shall authenticate and deliver such Securities. Inauthenticating such Securities, and accepting the additional responsibilitiesunder this Indenture in relation to such Securities, the Trustee shall beentitled to receive, and shall be fully protected in relying upon:

 

(i)                                     acopy of any Board Resolution relating thereto; and

 

(ii)                                  anOpinion of Counsel stating that: (1) such Securities, when authenticatedand delivered by the Trustee and issued by the Company in the manner andsubject to any conditions specified in such Opinion of Counsel, willconstitute, and the Indenture constitutes, valid and legally bindingobligations 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 affectingcreditors’ rights and to general equity principles; (2) the Securities havebeen duly authorized and executed by the Company and have been delivered to theTrustee for authentication in accordance with this Indenture; (3) theSecurities are not required to be registered under the Securities Act; and (4) theIndenture is not required to be qualified under the Trust Indenture Act.

 

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(b)                                 TheSecurities shall be executed on behalf of the Company by its Chairman of theBoard, its Vice Chairman of the Board, its Chief Executive Officer, itsPresident or one of its Vice Presidents. The signature of any of these officerson the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals whowere 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 suchoffices prior to the authentication and delivery of such Securities or did nothold such offices at the date of such Securities.

 

(c)                                  NoSecurity shall be entitled to any benefit under this Indenture or be valid orobligatory for any purpose, unless there appears on such Security a certificateof authentication substantially in the form provided for herein executed by theTrustee by the manual signature of one of its authorized signatories, and suchcertificate upon any Security shall be conclusive evidence, and the onlyevidence, that such Security has been duly authenticated and deliveredhereunder. Notwithstanding the foregoing, if any Security shall have beenauthenticated and delivered hereunder but never issued and sold by the Company,and the Company shall deliver such Security to the Trustee for cancellation asprovided in Section 3.8, for all purposes of this Indenture suchSecurity shall be deemed never to have been authenticated and deliveredhereunder and shall never be entitled to the benefits of this Indenture.

 

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

 

SECTION 3.4  *Global Securities*.

 

(a)                                  Uponthe election of the Holder after the Original Issue Date, which election neednot be in writing, the Securities owned by such Holder shall be issued in theform of one or more Global Securities registered in the name of the Depositaryor its nominee. Each Global Security issued under this Indenture shall beregistered in the name of the Depositary designated by the Company for suchGlobal Security or a nominee thereof and delivered to such Depositary or anominee thereof or custodian therefor, and each such Global Security shall constitutea single Security for all purposes of this Indenture.

 

(b)                                 Notwithstandingany other provision in this Indenture, no Global Security may be exchanged inwhole or in part for registered Securities, and no transfer of a GlobalSecurity in whole or in part may be registered, in the name of any Person otherthan the Depositary for such Global Security or a nominee thereof unless (i) suchDepositary advises the Trustee and the Company in writing that such Depositaryis no longer willing or able to properly discharge its responsibilities asDepositary with respect to such Global Security, and no qualified successor isappointed by the Company within ninety (90) days of receipt by the Company ofsuch notice, (ii) such Depositary ceases to be a clearing agencyregistered under the Exchange Act and no successor is appointed by the Companywithin ninety (90) days after obtaining knowledge of such event, (iii) theCompany executes and delivers to the Trustee a Company Order stating that theCompany elects to terminate the book-entry system through the Depositary or (iv) anEvent of Default shall have occurred and be continuing. Upon the occurrence ofany event specified in clause (i), (ii), (iii) or (iv) above, theTrustee shall notify the Depositary and instruct the Depositary to notify allowners of beneficial interests in such Global Security of the occurrence ofsuch event and of the availability of Securities to such owners of beneficialinterests requesting the same.  TheTrustee may conclusively rely, and be protected in relying, upon the

 

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writtenidentification of the owners of beneficial interests furnished by theDepositary, and shall not be liable for any delay resulting from a delay by theDepositary.  Upon the issuance of suchSecurities and the registration in the Securities Register of such Securitiesin the names of the Holders of the beneficial interests therein, the Trusteesshall recognize such holders of beneficial interests as Holders.

 

(c)                                  Ifany Global Security is to be exchanged for other Securities or canceled inpart, or if another Security is to be exchanged in whole or in part for abeneficial interest in any Global Security, then either (i) such GlobalSecurity shall be so surrendered for exchange or cancellation as provided inthis Article III or (ii) the principal amount thereof shall bereduced or increased by an amount equal to (x) the portion thereof to be soexchanged or canceled, or (y) the principal amount of such other Security to beso exchanged for a beneficial interest therein, as the case may be, by means ofan 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 acorresponding adjustment to its records. Upon any such surrender or adjustmentof a Global Security by the Depositary, accompanied by registrationinstructions, the Company shall execute and the Trustee shall authenticate anddeliver any Securities issuable in exchange for such Global Security (or anyportion thereof) in accordance with the instructions of the Depositary. TheTrustee shall not be liable for any delay in delivery of such instructions andmay conclusively rely on, and shall be fully protected in relying on, suchinstructions.

 

(d)                                 EverySecurity authenticated and delivered upon registration of transfer of, or inexchange for or in lieu of, a Global Security or any portion thereof shall beauthenticated 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 theDepositary for such Global Security or a nominee thereof.

 

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

 

(f)                                    TheDepositary or its nominee, as the registered owner of a Global Security, shallbe the Holder of such Global Security for all purposes under this Indenture andthe Securities, and owners of beneficial interests in a Global Security shallhold such interests pursuant to the Applicable Depositary Procedures.Accordingly, any such owner’s beneficial interest in a Global Security shall beshown only on, and the transfer of such interest shall be effected onlythrough, records maintained by the Depositary or its nominee or its DepositaryParticipants.  The Securities Registrarand the Trustee shall be entitled to deal with the Depositary for all purposesof this Indenture relating to a Global Security (including the payment of principaland interest thereon and the giving of instructions or directions by owners ofbeneficial interests therein and the giving of notices) as the sole Holder ofthe Security and shall have no obligations to the

 

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owners ofbeneficial interests therein.  Neitherthe Trustee nor the Securities Registrar shall have any liability in respect ofany transfers effected by the Depositary.

 

(g)                                 Therights of owners of beneficial interests in a Global Security shall beexercised only through the Depositary and shall be limited to those establishedby law and agreements between such owners and the Depositary and/or itsDepositary Participants.

 

(h)                                 Noholder of any beneficial interest in any Global Security held on its behalf bya Depositary shall have any rights under this Indenture with respect to suchGlobal Security, and such Depositary may be treated by the Company, the Trusteeand any agent of the Company or the Trustee as the owner of such GlobalSecurity for all purposes whatsoever. None of the Company, the Trustee nor any agent of the Company or theTrustee will have any responsibility or liability for any aspect of the recordsrelating to or payments made on account of beneficial ownership interests of aGlobal Security or maintaining, supervising or reviewing any records relatingto such beneficial ownership interests. Notwithstanding the foregoing, nothingherein shall prevent the Company, the Trustee or any agent of the Company orthe Trustee from giving effect to any written certification, proxy or otherauthorization furnished by a Depositary or impair, as between a Depositary andsuch holders of beneficial interests, the operation of customary practicesgoverning the exercise of the rights of the Depositary (or its nominee) asHolder of any Security.

 

SECTION 3.5  *Registration, Transfer andExchange Generally*.

 

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

 

(b)                                 Subjectto compliance with Section 2.2(b), upon surrender for registrationof transfer of any Security at the offices or agencies of the Companydesignated for that purpose the Company shall execute, and the Trustee shallauthenticate and deliver, in the name of the designated transferee ortransferees, one or more new Securities of any authorized denominations of liketenor and aggregate principal amount.

 

(c)                                  Atthe option of the Holder, Securities may be exchanged for other Securities ofany 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 shallexecute, and the Trustee shall authenticate and deliver, the Securities thatthe Holder making the exchange is entitled to receive.

 

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

 

(e)                                  EverySecurity presented or surrendered for transfer or exchange shall (if sorequired by the Company or the Trustee) be duly endorsed, or be accompanied bya written

 

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instrument oftransfer in form satisfactory to the Company and the Securities Registrar, dulyexecuted by the Holder thereof or such Holder’s attorney duly authorized inwriting.

 

(f)                                    Noservice charge shall be made to a Holder for any transfer or exchange ofSecurities, but the Company may require payment of a sum sufficient to coverany tax or other governmental charge that may be imposed in connection with anytransfer or exchange of Securities.

 

(g)                                 Neitherthe Company nor the Trustee shall be required pursuant to the provisions ofthis Section 3.5 (g): (i) to issue, register the transfer ofor exchange any Security during a period beginning at the opening of businessfifteen (15) days before the day of selection for redemption of Securitiespursuant to Article XI and ending at the close of business on theday of mailing of the notice of redemption or (ii) to register thetransfer of or exchange any Security so selected for redemption in whole or inpart, except, in the case of any such Security to be redeemed in part, anyportion thereof not to be redeemed.

 

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

 

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

 

(j)                                     Neitherthe Trustee nor the Securities Registrar shall be responsible for ascertainingwhether any transfer hereunder complies with the registration provisions of orany exemptions from the Securities Act, applicable state securities laws or theapplicable laws of any other jurisdiction, ERISA, the United States InternalRevenue Code of 1986, as amended, or the Investment Company Act; *provided*, that if a certificate is specifically required bythe express terms of this Section 3.5 to be delivered to the Trustee orthe Securities Registrar by a Holder or transferee of a Security, the Trusteeand the Securities Registrar shall be under a duty to receive and examine thesame to determine whether or not the certificate substantially conforms on itsface to the requirements of this Indenture and shall promptly notify the partydelivering the same if such certificate does not comply with such terms

 

SECTION 3.6  *Mutilated, Destroyed, Lostand Stolen Securities*.

 

(a)                                  Ifany mutilated Security is surrendered to the Trustee together with suchsecurity or indemnity as may be required by the Trustee to save the Company andthe Trustee harmless, the Company shall execute and the Trustee shallauthenticate and deliver in exchange therefor a new Security of like tenor andaggregate principal amount and bearing a number not contemporaneouslyoutstanding.

 

(b)                                 Ifthere shall be delivered to the Trustee (i) evidence to its satisfactionof the destruction, loss or theft of any Security and (ii) such securityor indemnity as may be required by it to save each of the Company and theTrustee harmless, then, in the absence of notice to the Company or the Trusteethat such Security has been acquired by a bona fide purchaser, the

 

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Company shallexecute and upon its written request the Trustee shall authenticate anddeliver, in lieu of any such destroyed, lost or stolen Security, a new Securityof like tenor and aggregate principal amount as such destroyed, lost or stolenSecurity, and bearing a number not contemporaneously outstanding.

 

(c)                                  Ifany such mutilated, destroyed, lost or stolen Security has become or is aboutto become due and payable, the Company in its discretion may, instead ofissuing a new Security, pay such Security.

 

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

 

(e)                                  Everynew Security issued pursuant to this Section 3.6 in lieu of anymutilated, destroyed, lost or stolen Security shall constitute an originaladditional 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 andproportionately with any and all other Securities duly issued hereunder.

 

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

 

SECTION 3.7  *Persons Deemed Owners*.

 

The Company, the Trustee and any agent of theCompany or the Trustee shall treat the Person in whose name any Security isregistered as the owner of such Security for the purpose of receiving paymentof principal of and any interest on such Security and for all other purposeswhatsoever, and neither the Company, the Trustee nor any agent of the Companyor the Trustee shall be affected by notice to the contrary.

 

SECTION 3.8 *Cancellation*.

 

All Securities surrendered for payment,redemption, transfer or exchange shall, if surrendered to any Person other thanthe Trustee, be delivered to the Trustee, and any such Securities andSecurities surrendered directly to the Trustee for any such purpose shall bepromptly canceled by it. The Company may at any time deliver to the Trustee forcancellation any Securities previously authenticated and delivered hereunderthat the Company may have acquired in any manner whatsoever, and all Securitiesso delivered shall be promptly canceled by the Trustee. No Securities shall beauthenticated in lieu of or in exchange for any Securities canceled as providedin this Section 3.8, except as expressly permitted by thisIndenture. All canceled Securities shall be retained or disposed of by theTrustee in accordance with its customary practices and the Trustee shalldeliver to the Company a certificate of such disposition.

 

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SECTION 3.9  *Deferrals of InterestPayment Dates*.

 

(a)                                  Solong as no Event of Default has occurred and is continuing, the Company shallhave the right, at any time and from time to time during the term of theSecurity, to defer the payment of interest on the Securities for a period of upto four (4) consecutive quarterly interest payment periods (each suchperiod, an “Extension Period”), during which Extension Period(s),the Company shall have the right to make no payments or partial payments ofinterest on any Interest Payment Date (except any Additional Tax Sums thatotherwise may be due and payable). No Extension Period shall end on a dateother than an Interest Payment Date and no Extension Period shall extend beyondthe Stated Maturity of the principal of the Securities.  No interest shall be due and payable duringan Extension Period, except at the end thereof. At the end of any such Extension Period, the Company shall pay allinterest then accrued and unpaid on the Securities.  Prior to the termination of any suchExtension Period, the Company may extend such Extension Period and furtherdefer the payment of interest; *provided**,* that (i) all such previous and further extensionscomprising such Extension Period do not exceed four (4) quarterly interestpayment periods, (ii) no Extension Period shall end on a date other thanan Interest Payment Date and (iii) no Extension Period shall extend beyondthe Stated Maturity of the principal of the Securities.  Upon the termination of any such ExtensionPeriod and upon the payment of all accrued and unpaid interest then due on anyInterest Payment Date, the Company may elect to begin a new Extension Period; *provided**,*that (i) such Extension Period does not exceed four (4) quarterlyinterest payment periods, (ii) no Extension Period shall end on a dateother than an Interest Payment Date and (iii) no Extension Period shallextend beyond the Stated Maturity of the principal of the Securities.  The Company shall give the Holders of theSecurities and the Trustee written notice of its election to begin any suchExtension Period at least thirty (30) days’ prior to the next succeedingInterest Payment Date on which interest on the Securities would be payable butfor such deferral.

 

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

 

SECTION 3.10 *Reserved*.

 

SECTION 3.11  *Agreed Tax Treatment*.

 

Each Security issued hereunder shall providethat the Company and, by its acceptance or acquisition of a Security or abeneficial interest therein, the Holder of, and any Person that acquires adirect or indirect beneficial interest in, such Security, intend and agree totreat such Security as indebtedness of the Company for United States Federal,state and local tax purposes and to treat the Preferred Securities (includingbut not limited to all payments and proceeds with respect to the PreferredSecurities) 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 beinterpreted 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 aconvenience to Holders; *provided**,* that any such notice or other

 

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materials may state that no representation is made as to thecorrectness of such numbers either as printed on the Securities or as containedin any notice of redemption or other materials and that reliance may be placedonly on the other identification numbers printed on the Securities, and anysuch redemption shall not be affected by any defect in or omission of suchnumbers.

 

**ARTICLE IV**

**SATISFACTION AND DISCHARGE**

** **

SECTION 4.1  *Satisfaction and Dischargeof Indenture*.

 

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

 

(a)                                  either

 

(i)                                     allSecurities theretofore authenticated and delivered (other than (A) Securitiesthat have been mutilated, destroyed, lost or stolen and that have been replacedor paid as provided in Section 3.6 and (B) Securities forwhose payment money has theretofore been deposited in trust or segregated andheld in trust by the Company and thereafter repaid to the Company or dischargedfrom such trust as provided in Section 10.2) have been delivered tothe Trustee for cancellation; or

 

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

 

(A)                              havebecome due and payable, or

 

(B)                                willbecome due and payable at their Stated Maturity within one year of the date ofdeposit, or

 

(C)                                areto be called for redemption within one year under arrangements satisfactory tothe 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 depositedwith the Trustee as trust funds in trust for such purpose (x) an amount in thecurrency or currencies in which the Securities are payable, (y) GovernmentObligations which through the scheduled payment of principal and interest inrespect thereof in accordance with their terms will provide, not later than thedue date of any payment, money in an amount or (z) a combination thereof, ineach case sufficient, in the opinion of a nationally recognized firm ofindependent public accountants expressed in a written certification thereofdelivered to the Trustee, to pay and discharge the entire indebtedness on suchSecurities not theretofore delivered to the Trustee for cancellation, forprincipal and any premium and interest (including any Additional Interest) tothe date of such deposit (in the case of Securities that have become due andpayable) or to the

 

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

 

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

 

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

 

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

 

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 shallbe held in trust and applied by the Trustee, in accordance with the provisionsof 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 asits own Paying Agent) as the Trustee may determine, to the Persons entitledthereto, of the principal and any premium and interest (including anyAdditional Interest) for the payment of which such money or obligations havebeen deposited with or received by the Trustee. Moneys held by the Trustee under this Section 4.2 shall notbe subject to the claims of holders of Senior Debt under Article XII.

 

**ARTICLE V**

**REMEDIES**

** **

SECTION 5.1 *Events of Default*.

 

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

 

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

 

(b)                                 defaultin the payment of the principal of or any premium on any Security at itsMaturity; or

 

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(c)                                  defaultin the performance, or breach, of any covenant or warranty in any materialrespect of the Company in this Indenture or the Purchase Agreements andcontinuance of such default or breach for a period of thirty (30) days afterthere has been given, by registered or certified mail, to the Company by theTrustee or to the Company and the Trustee by the Holders of at least twentyfive percent (25%) in aggregate principal amount of the Outstanding Securitiesa written notice specifying such default or breach and requiring it to beremedied and stating that such notice is a “Notice of Default” hereunder;

 

(d)                                 theentry by a court having jurisdiction in the premises of a decree or orderadjudging the Company a bankrupt or insolvent, or approving as properly filed apetition seeking reorganization, arrangement, adjustment or composition of orin 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 officialof the Company or of any substantial part of its property, or ordering thewinding up or liquidation of its affairs, and the continuance of any suchdecree or order for relief or any such other decree or order unstayed and ineffect for a period of sixty (60) consecutive days;

 

(e)                                  theinstitution by the Company of proceedings to be adjudicated a bankrupt orinsolvent, or the consent by the Company to the institution of bankruptcy orinsolvency proceedings against it, or the filing by the Company of a petitionor answer or consent seeking reorganization or relief under any applicableFederal 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 ortaking possession by a custodian, receiver, liquidator, assignee, trustee,sequestrator or other similar official of the Company or of any substantial partof its property, or the making by it of an assignment for the benefit ofcreditors, or the admission by it in writing of its inability to pay its debtsgenerally as they become due and its willingness to be adjudicated a bankruptor insolvent, or the taking of corporate action by the Company in furtheranceof any such action; or

 

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

 

SECTION 5.2  *Acceleration of Maturity;Rescission and Annulment*.

 

(a)                                  Ifan Event of Default occurs and is continuing, then and in every such case theTrustee or the Holders of not less than twenty five percent (25%) in aggregateprincipal amount of the Outstanding Securities may declare the principal amountof all the Securities to be due and payable immediately, by a notice in writingto 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 thantwenty five percent (25%) in principal amount of the Outstanding Securitiesfail to declare the principal of all the Outstanding Securities to beimmediately due and payable, the holders of at least twenty five percent (25%)in aggregate Liquidation Amount of the Preferred Securities then outstandingshall have the right to make such declaration by a notice in writing to theProperty Trustee, the Company and the Trustee; and upon any such declarationthe principal amount of

 

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and the accruedinterest (including any Additional Interest) on all the Securities shall becomeimmediately due and payable.

 

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

 

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

 

(A)                              alloverdue installments of interest on all Securities,

 

(B)                                anyaccrued Additional Interest on all Securities,

 

(C)                                theprincipal of and any premium on any Securities that have become due otherwisethan by such declaration of acceleration and interest (including any AdditionalInterest) thereon at the rate borne by the Securities, and

 

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

 

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

 

*provided**,* that if the Holders of such Securities fail to annul suchdeclaration and waive such default, the holders of not less than a majority inaggregate Liquidation Amount of the Preferred Securities then outstanding shallalso have the right to rescind and annul such declaration and its consequencesby written notice to the Property Trustee, the Company and the Trustee, subjectto 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 rightconsequent thereon.

 

SECTION 5.3  *Collection of Indebtednessand Suits for Enforcement by Trustee*.

 

(a)                                  TheCompany covenants that if:

 

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

 

(ii)                                  defaultis made in the payment of the principal of and any premium on any Security atthe Maturity thereof,

 

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

 

(b)                                 Ifthe 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 judicialproceeding for the collection of the sums so due and unpaid, and may prosecutesuch proceeding to judgment or final decree, and may enforce the same againstthe Company or any other obligor upon such Securities and collect the moneysadjudged or decreed to be payable in the manner provided by law out of theproperty of the Company or any other obligor upon the Securities, whereversituated.

 

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

 

SECTION 5.4  *Trustee May FileProofs of Claim*.

 

In case of any receivership, insolvency,liquidation, bankruptcy, reorganization, arrangement, adjustment, compositionor similar judicial proceeding relative to the Company (or any other obligorupon the Securities), its property or its creditors, the Trustee shall beentitled and empowered, by intervention in such proceeding or otherwise, totake any and all actions authorized hereunder in order to have claims of theHolders and the Trustee allowed in any such proceeding. In particular, theTrustee shall be authorized to collect and receive any moneys or other propertypayable or deliverable on any such claims and to distribute the same; and anycustodian, receiver, assignee, trustee, liquidator, sequestrator or othersimilar official in any such judicial proceeding is hereby authorized by eachHolder to make such payments to the Trustee and, in the event that the Trusteeshall consent to the making of such payments directly to the Holders, to first payto the Trustee any amount due it for the reasonable compensation, expenses,disbursements and advances of the Trustee, its agents and counsel, and anyother amounts owing the Trustee, any predecessor Trustee and other Personsunder Section 6.6.

 

SECTION 5.5  *Trustee May EnforceClaim Without Possession of Securities*.

 

All rights of action and claims under thisIndenture or the Securities may be prosecuted and enforced by the Trusteewithout the possession of any of the Securities or the production thereof inany proceeding relating thereto, and any such proceeding instituted by theTrustee shall be brought in its own name as trustee of an express trust, andany recovery of judgment shall, subject to Article XII and afterprovision for the payment of all the amounts owing the Trustee, any predecessorTrustee and other Persons under Section 6.6, be for the ratablebenefit of the Holders of the Securities in respect of which such judgment hasbeen recovered.

 

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SECTION 5.6  *Application of MoneyCollected*.

 

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

 

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

 

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

 

THIRD: Subject to Article XII, tothe payment of the amounts then due and unpaid upon the Securities forprincipal and any premium and interest (including any Additional Interest) inrespect of which or for the benefit of which such money has been collected,ratably, without preference or priority of any kind, according to the amountsdue 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 orPersons entitled thereto.

 

SECTION 5.7  *Limitation on Suits*.

 

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

 

(a)                                  suchHolder has previously given written notice to the Trustee of a continuing Eventof Default with respect to the Securities;

 

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

 

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

 

(d)                                 theTrustee after its receipt of such notice, request and offer of indemnity hasfailed to institute any such proceeding for sixty (60) days; and

 

(e)                                  nodirection inconsistent with such written request has been given to the Trusteeduring such sixty (60)-day period by the Holders of a majority in aggregateprincipal amount of the Outstanding Securities;

 

it being understood and intended that no one or more of such Holdersshall have any right in any manner whatever by virtue of, or by availing itselfof, any provision of this Indenture to affect, disturb or prejudice the rightsof any other Holders of Securities, or to obtain or to seek to obtain

 

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priority or preference over any other of such Holders or to enforce anyright under this Indenture, except in the manner herein provided and for theequal and ratable benefit of all such Holders.

 

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

 

Notwithstanding any other provision in thisIndenture, the Holder of any Security shall have the right, which is absoluteand unconditional, to receive payment of the principal of and any premium onsuch Security at its Maturity and payment of interest (including any AdditionalInterest) on such Security when due and payable and to institute suit for theenforcement of any such payment, and such right shall not be impaired withoutthe consent of such Holder. Any registered holder of the Preferred Securitiesshall have the right, upon the occurrence of an Event of Default described in Section 5.1(a) orSection 5.1(b), to institute a suit directly against the Companyfor enforcement of payment to such holder of principal of and any premium andinterest (including any Additional Interest) on the Securities having a principalamount equal to the aggregate Liquidation Amount of the Preferred Securitiesheld by such holder.

 

SECTION 5.9  *Restoration of Rights andRemedies*.

 

If the Trustee, any Holder or any holder ofPreferred Securities has instituted any proceeding to enforce any right orremedy under this Indenture and such proceeding has been discontinued orabandoned for any reason, or has been determined adversely to the Trustee, suchHolder or such holder of Preferred Securities, then and in every such case theCompany, the Trustee, such Holders and such holder of Preferred Securitiesshall, subject to any determination in such proceeding, be restored severallyand respectively to their former positions hereunder, and thereafter all rightsand remedies of the Trustee, such Holder and such holder of PreferredSecurities shall continue as though no such proceeding had been instituted.

 

SECTION 5.10  *Rights and RemediesCumulative*.

 

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

 

SECTION 5.11  *Delay or Omission NotWaiver*.

 

No delay or omission of the Trustee, anyHolder of any Securities or any holder of any Preferred Security to exerciseany right or remedy accruing upon any Event of Default shall impair any suchright or remedy or constitute a waiver of any such Event of Default or anacquiescence therein.  Every right andremedy given by this Article V or by law to the Trustee or to theHolders and the right and remedy given to the holders of Preferred Securitiesby Section 5.8 may be exercised from time to time, and as often asmay be deemed expedient, by the Trustee, the Holders or the holders ofPreferred Securities, as the case may be.

 

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SECTION 5.12  *Control byHolders*.

 

The Holders of not less than a majority inaggregate principal amount of the Outstanding Securities (or, as the case maybe, the holders of a majority in aggregate Liquidation Amount of PreferredSecurities)  shall have the right todirect the time, method and place of conducting any proceeding for any remedyavailable to the Trustee or exercising any trust or power conferred on theTrustee; *provided**,* that:

 

(a)                                  suchdirection shall not be in conflict with any rule of law or with thisIndenture,

 

(b)                                 theTrustee may take any other action deemed proper by the Trustee that is notinconsistent with such direction, and

 

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

 

SECTION 5.13  *Waiver of Past Defaults*.

 

(a)                                  TheHolders of not less than a majority in aggregate principal amount of theOutstanding Securities or the holders of not less than a majority in aggregateLiquidation Amount of the Preferred Securities may waive any past Event ofDefault hereunder and its consequences except an Event of Default:

 

(i)                                     inthe payment of the principal of or any premium or interest (including anyAdditional Interest) on any Outstanding Security (unless such Event of Defaulthas been cured and the Company has paid to or deposited with the Trustee a sumsufficient to pay all installments of interest (including any AdditionalInterest) due and past due and all principal of and any premium on allSecurities due otherwise than by acceleration), or

 

(ii)                                  inrespect of a covenant or provision hereof that under Article IXcannot be modified or amended without the consent of each Holder of anyOutstanding Security.

 

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

 

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

 

SECTION 5.14  *Undertaking for Costs*.

 

All parties to this Indenture agree, and eachHolder of any Security by his or her acceptance thereof shall be deemed to haveagreed, that any court may in its discretion require, in any suit for theenforcement of any right or remedy under this Indenture, or in any suit againstthe Trustee for any action taken or omitted by it as Trustee, the filing by anyparty litigant in such suit of an undertaking to pay the costs of such suit,and that such court may in its discretion

 

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assess reasonable costs, including reasonable attorneys’ fees andexpenses, against any party litigant in such suit, having due regard to themerits 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 suitinstituted by the Trustee, to any suit instituted by any Holder, or group ofHolders, holding in the aggregate more than ten percent (10%) in aggregateprincipal amount of the Outstanding Securities, or to any suit instituted byany Holder for the enforcement of the payment of the principal of or anypremium on the Security after the Stated Maturity or any interest (includingany Additional Interest) on any Security after it is due and payable.

 

SECTION 5.15  *Waiver of Usury, Stay orExtension Laws*.

 

The Company covenants (to the extent that itmay lawfully do so) that it will not at any time insist upon, or plead, or inany 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 theCompany (to the extent that it may lawfully do so) hereby expressly waives allbenefit 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, butwill suffer and permit the execution of every such power as though no such lawhad been enacted.

 

**ARTICLE VI**

** **

**THE TRUSTEE**

** **

SECTION 6.1  *Corporate Trustee Required*.

 

There shall at all times be a Trusteehereunder with respect to the Securities. The Trustee shall be a corporation organized and doing business underthe laws of the United States or of any state thereof, authorized to exercisecorporate 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 havingan office within the United States. If such corporation publishes reports ofcondition at least annually, pursuant to law or to the requirements of suchsupervising 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 itscombined capital and surplus as set forth in its most recent report ofcondition so published.  If at any time theTrustee shall cease to be eligible in accordance with the provisions of this Section 6.1,it shall resign immediately in the manner and with the effect hereinafterspecified in this Article VI.

 

SECTION 6.2  *Certain Duties andResponsibilities*.

 

(a)                                  Exceptduring the continuance of an Event of Default:

 

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

 

(ii)                                  inthe absence of bad faith on its part, the Trustee may conclusively rely, as tothe truth of the statements and the correctness of the opinions expressedtherein,

 

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upon certificates or opinions furnished to the Trusteeand conforming to the requirements of this Indenture; *provided**,*that in the case of any such certificates or opinions that by any provisionhereof are specifically required to be furnished to the Trustee, the Trustee shallbe under a duty to examine the same to determine whether or not theysubstantially conform on their face to the requirements of this Indenture.

 

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

 

(c)                                  Notwithstandingthe foregoing, no provision of this Indenture shall require the Trustee toexpend or risk its own funds or otherwise incur any financial liability in theperformance of any of its duties hereunder, or in the exercise of any of itsrights or powers, if it shall have reasonable grounds for believing thatrepayment of such funds or adequate indemnity against such risk or liability isnot reasonably assured to it. Whether or not therein expressly so provided,every provision of this Indenture relating to the conduct or affecting theliability of or affording protection to the Trustee shall be subject to theprovisions of this Section 6.2. To the extent that, at law or inequity, the Trustee has duties and liabilities relating to the Holders, theTrustee shall not be liable to any Holder or any holder of Preferred Securitiesfor the Trustee’s good faith reliance on the provisions of this Indenture. Theprovisions of this Indenture, to the extent that they restrict the duties andliabilities of the Trustee otherwise existing at law or in equity, are agreedby the Company and the Holders and the holders of Preferred Securities toreplace such other duties and liabilities of the Trustee.

 

(d)                                 Noprovisions of this Indenture shall be construed to relieve the Trustee fromliability with respect to matters that are within the authority of the Trusteeunder this Indenture for its own negligent action, negligent failure to act orwillful misconduct, except that:

 

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

 

(ii)                                  theTrustee shall not be liable with respect to any action taken or omitted to betaken by it in good faith in accordance with the direction of the Holders of atleast a majority in aggregate principal amount of the Outstanding Securities(or, as the case may be, the holders of a majority in aggregate LiquidationAmount of Preferred Securities) relating to the time, method and place ofconducting any proceeding for any remedy available to the Trustee under thisIndenture; and

 

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

 

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(e)                                  Ifat any time the Trustee hereunder is not the same Person as the PropertyTrustee under the Trust Agreement:

 

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

 

(ii)                                  theTrustee shall not be charged with notice or knowledge that any Person is aholder of Preferred Securities or Common Securities issued by the Trust orwhether any group of holders of Preferred Securities constitutes any specifiedpercentage of all outstanding Preferred Securities for any purpose under thisIndenture, unless and until the Trustee is furnished with a list of holders bysuch Property Trustee and the aggregate Liquidation Amount of the PreferredSecurities then outstanding.  The Trusteemay conclusively rely and shall be protected in relying on such list.

 

(f)                                    NotwithstandingSection 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 bythe Trust and shall not be liable to any such holder (other than for thewillful misconduct or negligence of the Trustee) if the Trustee in good faith (i) paysover or distributes to a registered Holder of the Securities or to the Companyor to any other Person, cash, property or securities to which such holders ofsuch Trust Securities shall be entitled or (ii) takes any action or omitsto take any action at the request of the Holder of such Securities.  Nothing in this paragraph shall affect theobligation 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 CommonSecurities or their representatives.

 

SECTION 6.3  *Notice of Defaults*.

 

Within ninety (90) days after the occurrenceof any default actually known to the Trustee, the Trustee shall give theHolders notice of such default unless such default shall have been cured orwaived; *provided*, that except in the case of a default in thepayment of the principal of or any premium or interest on any Securities, theTrustee shall be fully protected in withholding the notice if and so long asthe board of directors, the executive committee or a trust committee ofdirectors and/or Responsible Officers of the Trustee in good faith determinesthat withholding the notice is in the interest of holders of Securities; and *provided**,*further, that in the case ofany default of the character specified in Section 5.1(c), no suchnotice to Holders shall be given until at least thirty (30) days after theoccurrence 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 wouldbecome, an Event of Default.

 

SECTION 6.4  *Certain Rights of Trustee*.

 

Subject to the provisions of Section 6.2:

 

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

 

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

 

(c)                                  anyrequest or direction of the Company shall be sufficiently evidenced by aCompany Request or Company Order and any resolution of the Board of Directorsmay be sufficiently evidenced by a Board Resolution;

 

(d)                                 theTrustee 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) andthe advice of such counsel or any Opinion of Counsel shall be full and completeauthorization and protection in respect of any action taken, suffered oromitted by it hereunder in good faith and in reliance thereon;

 

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

 

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

 

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(g)                                 theTrustee may execute any of the trusts or powers hereunder or perform any dutieshereunder either directly or by or through agents, attorneys, custodians or nomineesand the Trustee shall not be responsible for any misconduct or negligence onthe part of any such agent, attorney, custodian or nominee appointed with duecare by it hereunder;

 

(h)                                 wheneverin the administration of this Indenture the Trustee shall deem it desirable toreceive instructions with respect to enforcing any remedy or right or takingany other action with respect to enforcing any remedy or right hereunder, theTrustees (i) may request instructions from the Holders (which instructionsmay only be given by the Holders of the same aggregate principal amount ofOutstanding Securities as would be entitled to direct the Trustee under thisIndenture in respect of such remedy, right or action), (ii) may refrainfrom enforcing such remedy or right or taking such action until suchinstructions are received and (iii) shall be protected in acting inaccordance with such instructions;

 

(i)                                     exceptas otherwise expressly provided by this Indenture, the Trustee shall not beunder any obligation to take any action that is discretionary under theprovisions of this Indenture;

 

(j)                                     withoutprejudice to any other rights available to the Trustee under applicable law,when the Trustee incurs expenses or renders services in connection with anybankruptcy, insolvency or other proceeding referred to in clauses (d) or (e) ofthe definition of Event of Default, such expenses (including legal fees andexpenses of its agents and counsel) and the compensation for such services areintended to constitute expenses of administration under any bankruptcy laws orlaw relating to creditors rights generally;

 

(k)                                  wheneverin the administration of this Indenture the Trustee shall deem it desirablethat a matter be proved or established prior to taking, suffering or omittingany action hereunder, the Trustee (unless other evidence be herein specificallyprescribed) may, in the absence of bad faith on its part, conclusively relyupon an Officers’ Certificate addressing such matter, which, upon receipt ofsuch request, shall be promptly delivered by the Company;

 

(l)                                     theTrustee shall not be charged with knowledge of any Event of Default unlesseither (i) a Responsible Officer of the Trustee shall have actualknowledge or (ii) the Trustee shall have received written notice thereoffrom the Company or a Holder; and

 

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

 

SECTION 6.5  *May Hold Securities*.

 

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

 

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SECTION 6.6  *Compensation;Reimbursement; Indemnity*.

 

(a)                                  TheCompany agrees:

 

(i)                                     topay to the Trustee from time to time reasonable compensation for all servicesrendered by it hereunder in such amounts as the Company and the Trustee shallagree from time to time (which compensation shall not be limited by anyprovision of law in regard to the compensation of a trustee of an expresstrust);

 

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

 

(iii)                               tothe fullest extent permitted by applicable law, to indemnify the Trustee andits 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 onamounts paid pursuant to (i) or (ii) hereof), penalty, expense orclaim of any kind or nature whatsoever incurred without negligence, bad faithor willful misconduct on its part arising out of or in connection with theacceptance or administration of this trust or the performance of the Trustee’sduties hereunder, including the costs and expenses of defending itself againstany claim or liability in connection with the exercise or performance of any ofits powers or duties hereunder.

 

(b)                                 Tosecure the Company’s payment obligations in this Section 6.6, theCompany hereby grants and pledges to the Trustee and the Trustee shall have a lienprior to the Securities on all money or property held or collected by theTrustee, other than money or property held in trust to pay principal andinterest on particular Securities.  Suchlien shall survive the satisfaction and discharge of this Indenture or theresignation or removal of the Trustee.

 

(c)                                  Theobligations of the Company under this Section 6.6 shall survive thesatisfaction and discharge of this Indenture and the earlier resignation orremoval of the Trustee.

 

(d)                                 Inno event shall the Trustee be liable for any indirect, special, punitive orconsequential loss or damage of any kind whatsoever, including, but not limitedto, lost profits, even if the Trustee has been advised of the likelihood ofsuch loss or damage and regardless of the form of action.

 

(e)                                  Inno event shall the Trustee be liable for any failure or delay in theperformance of its obligations hereunder because of circumstances beyond itscontrol, including, but not limited to, acts of God, flood, war (whetherdeclared or undeclared), terrorism, fire, riot, embargo, government action,including any laws, ordinances, regulations, governmental action or the likewhich delay, restrict or prohibit the providing of the services contemplated bythis Indenture.

 

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SECTION 6.7  *Resignation and Removal;Appointment of Successor*.

 

(a)                                  Noresignation or removal of the Trustee and no appointment of a successor Trusteepursuant to this Article VI shall become effective until theacceptance of appointment by the successor Trustee under Section 6.8.

 

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

 

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

 

(d)                                 Ifthe Trustee shall resign, be removed or become incapable of acting, or if avacancy shall occur in the office of Trustee for any reason, at a time when noEvent of Default shall have occurred and be continuing, the Company, by a BoardResolution, shall promptly appoint a successor Trustee, and such successorTrustee and the retiring Trustee shall comply with the applicable requirementsof Section 6.8. If the Trustee shall resign, be removed or becomeincapable of acting, or if a vacancy shall occur in the office of Trustee forany reason, at a time when an Event of Default shall have occurred and becontinuing, the Holders, by Act of the Holders of a majority in aggregateprincipal amount of the Outstanding Securities, shall promptly appoint asuccessor Trustee, and such successor Trustee and the retiring Trustee shallcomply with the applicable requirements of Section 6.8. If nosuccessor Trustee shall have been so appointed by the Company or the Holdersand accepted appointment within sixty (60) days after the giving of a notice ofresignation by the Trustee or the removal of the Trustee in the manner requiredby Section 6.8, any Holder who has been a bona fide Holder of aSecurity for at least six months may, on behalf of such Holder and all otherssimilarly situated, and any resigning Trustee may, at the expense of theCompany, petition any court of competent jurisdiction for the appointment of asuccessor Trustee.

 

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

 

SECTION 6.8  *Acceptance of Appointmentby Successor*.

 

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

 

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

 

(c)                                  Nosuccessor Trustee shall accept its appointment unless at the time of such acceptancesuch 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 bemerged or converted or with which it may be consolidated, or any Personresulting from any merger, conversion or consolidation to which the Trusteeshall be a party, or any Person succeeding to all or substantially all of thecorporate trust business of the Trustee, shall be the successor of the Trusteehereunder, without the execution or filing of any paper or any further act onthe 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 theTrustee then in office, any successor by merger, conversion or consolidation oras otherwise provided above in this Section 6.9 to suchauthenticating Trustee may adopt such authentication and deliver the Securitiesso authenticated, and in case any Securities shall not have been authenticated,any successor to the Trustee may authenticate such Securities either in thename of any predecessor Trustee or in the name of such successor Trustee, andin all cases the certificate of authentication shall have the full force whichit is provided anywhere in the Securities or in this Indenture that thecertificate of the Trustee shall have.

 

SECTION 6.10  *Not Responsible forRecitals or Issuance of Securities*.

 

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

 

SECTION 6.11  *Appointment ofAuthenticating Agent*.

 

(a)                                  TheTrustee may appoint an Authenticating Agent or Agents with respect to theSecurities, which shall be authorized to act on behalf of the Trustee toauthenticate 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 thisIndenture and shall be valid and obligatory for all purposes as ifauthenticated by the Trustee hereunder. Wherever reference is made in thisIndenture to the authentication and delivery of Securities by the Trustee orthe Trustee’s certificate of authentication, such reference shall be deemed toinclude authentication and delivery on behalf of the Trustee by anAuthenticating Agent. Each Authenticating Agent shall be acceptable to theCompany and shall at all times be a corporation organized and doing businessunder the laws of the United States of America, or of any State or Territorythereof or the District of Columbia, authorized under such laws to act asAuthenticating Agent, having a combined capital and surplus of not less than

 

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$50,000,000 andsubject to supervision or examination by Federal or state authority. If suchAuthenticating Agent publishes reports of condition at least annually pursuantto law or to the requirements of said supervising or examining authority, thenfor the purposes of this Section 6.11 the combined capital andsurplus of such Authenticating Agent shall be deemed to be its combined capitaland 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 accordancewith the provisions of this Section 6.11, such Authenticating Agentshall resign immediately in the manner and with the effect specified in this Section 6.11.

 

(b)                                 AnyPerson into which an Authenticating Agent may be merged or converted or withwhich it may be consolidated, or any Person resulting from any merger,conversion or consolidation to which such Authenticating Agent shall be aparty, or any Person succeeding to all or substantially all of the corporatetrust business of an Authenticating Agent shall be the successor AuthenticatingAgent 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 ofthe Trustee or the Authenticating Agent.

 

(c)                                  AnAuthenticating Agent may resign at any time by giving written notice thereof tothe Trustee and to the Company. The Trustee may at any time terminate theagency of an Authenticating Agent by giving written notice thereof to suchAuthenticating Agent and to the Company. Upon receiving such a notice ofresignation or upon such a termination, or in case at any time suchAuthenticating Agent shall cease to be eligible in accordance with theprovisions of this Section 6.11, the Trustee may appoint asuccessor Authenticating Agent eligible under the provisions of this Section 6.11,which shall be acceptable to the Company, and shall give notice of suchappointment to all Holders. Any successor Authenticating Agent upon acceptanceof its appointment hereunder shall become vested with all the rights, powersand duties of its predecessor hereunder, with like effect as if originallynamed as an Authenticating Agent.

 

(d)                                 TheCompany agrees to pay to each Authenticating Agent from time to time reasonablecompensation for its services under this Section 6.11 in suchamounts as the Company and the Authenticating Agent shall agree from time totime.

 

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

 

This is one of the Securities referred to in the within mentionedIndenture.

 
| Dated: |                                                                                               |
|--------|----------------------------------------------------------------------------------------------------|
|   |                                                                                               |
|   | JPMORGAN CHASE BANK, NATIONAL  ASSOCIATION, not in its individual capacity, but  solely as Trustee |
|   |                                                                                               |
|   |                                                                                               |
|   | By:                                                                                                |   |
|   |                                                                                               | *Authenticating Agent* |
|   |                                                                                               |
|   | By:                                                                                                |   |
|   |                                                                                               | *Authorized Signatory* |

 

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** **

**ARTICLE VII**

**HOLDER’S LISTS AND REPORTS BY COMPANY**

** **

SECTION 7.1  *Company to Furnish TrusteeNames and Addresses of Holders*.

 

The Company will furnish or cause to befurnished to the Trustee:

 

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

 

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

 

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

 

SECTION 7.2  *Preservation ofInformation, Communications to Holders*.

 

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

 

(b)                                 Therights of Holders to communicate with other Holders with respect to theirrights under this Indenture or under the Securities, and the correspondingrights and privileges of the Trustee, shall be as provided in the TrustIndenture Act.

 

(c)                                  EveryHolder of Securities, by receiving and holding the same, agrees with theCompany and the Trustee that neither the Company nor the Trustee nor any agentof either of them shall be held accountable by reason of the disclosure ofinformation as to the names and addresses of the Holders made pursuant to theTrust Indenture Act.

 

SECTION 7.3  *Reports by Company*.

 

(a)                                  TheCompany shall furnish to the Holders and to prospective purchasers ofSecurities, upon their request, the information required to be furnishedpursuant to Rule 144A(d)(4) under the Securities Act. The deliveryrequirement set forth in the preceding sentence may be satisfied by compliancewith Section 7.3(b) hereof.

 

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(b)                                 TheCompany shall furnish to each of (i) the Trustee, (ii) the Holdersand to subsequent holders of Securities, (iii) Taberna Capital Management,LLC, 450 Park Avenue, 23rd Floor, New York, New York 10022, Attn:Mitchell Kahn and (iv) any beneficial owner of the Securities reasonablyidentified to the Company (which identification may be made either by suchbeneficial owner or by Taberna Capital Management LLC), a duly completed andexecuted certificate substantially and substantively in the form attachedhereto as Exhibit A, including the financial statements referencedin such Exhibit, which certificate and financial statements shall be sofurnished by the Company not later than forty-five (45) days after the end ofeach of the first three fiscal quarters of each fiscal year of the Company andnot later than ninety (90) days after the end of each fiscal year of theCompany. The delivery requirements under this Section 7.3(b) maybe satisfied by compliance with Section 8.16(b) of the TrustAgreement.

 

(c)                                  Ifthe Company intends to file its annual and quarterly information with theSecurities and Exchange Commission (the “Commission”)in electronic form pursuant to Regulation S-T of the Commission using theCommission’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system, the Company shallnotify the Trustee in the manner prescribed herein of each such annual andquarterly filing.  The Trustee is herebyauthorized and directed to access the EDGAR system for purposes of retrievingthe financial information so filed. Compliance with the foregoing shallconstitute delivery by the Company of its financial statements to the Trusteein compliance with the provisions of Section 314(a) of the TrustIndenture Act, if applicable.  TheTrustee shall have no duty to search for or obtain any electronic or otherfilings that the Company makes with the Commission, regardless of whether suchfilings are periodic, supplemental or otherwise.  Delivery of reports, information anddocuments to the Trustee pursuant to this Section 7.3(c) shallbe solely for purposes of compliance with this Section 7.3(c) and,if applicable, with Section 314(a) of the Trust Indenture Act. TheTrustee’s receipt of such reports, information and documents shall notconstitute notice to it of the content thereof or any matter determinable fromthe content thereof, including the Company’s compliance with any of itscovenants 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 ormerge into any other Person or convey, transfer or lease its properties andassets substantially as an entirety to any Person, and no Person shallconsolidate with or merge into the Company or convey, transfer or lease itsproperties and assets substantially as an entirety to the Company, unless:

 

(a)                                  ifthe Company shall consolidate with or merge into another Person or convey,transfer or lease its properties and assets substantially as an entirety to anyPerson, the entity formed by such consolidation or into which the Company is mergedor the Person that acquires by conveyance or transfer, or that leases, theproperties and assets of the Company substantially as an entirety shall be anentity organized and existing under the laws of the United States of America orany State or Territory thereof or the District of Columbia and shall expresslyassume,

 

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by an indenturesupplemental hereto, executed and delivered to the Trustee, in form reasonablysatisfactory to the Trustee, the due and punctual payment of the principal ofand any premium and interest (including any Additional Interest) on all theSecurities and the performance of every covenant of this Indenture on the partof the Company to be performed or observed;

 

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

 

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

 

SECTION 8.2  *Successor CompanySubstituted*.

 

(a)                                  Uponany consolidation or merger by the Company with or into any other Person, orany conveyance, transfer or lease by the Company of its properties and assetssubstantially as an entirety to any Person in accordance with Section 8.1and the execution and delivery to the Trustee of the supplemental indenturedescribed in Section 8.1(a), the successor entity formed by suchconsolidation 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 mayexercise every right and power of, the Company under this Indenture with thesame 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 executionand delivery of such supplemental indenture, the Company shall be dischargedfrom all obligations and covenants under the Indenture and the Securities.

 

(b)                                 Suchsuccessor Person may cause to be executed, and may issue either in its own nameor in the name of the Company, any or all of the Securities issuable hereunderthat theretofore shall not have been signed by the Company and delivered to theTrustee; and, upon the order of such successor Person instead of the Companyand subject to all the terms, conditions and limitations in this Indentureprescribed, the Trustee shall authenticate and shall deliver any Securitiesthat previously shall have been signed and delivered by the officers of the Companyto the Trustee for authentication, and any Securities that such successorPerson thereafter shall cause to be executed and delivered to the Trustee onits behalf. All the Securities so issued shall in all respects have the samelegal rank and benefit under this Indenture as the Securities theretofore orthereafter issued in accordance with the terms of this Indenture.

 

(c)                                  Incase of any such consolidation, merger, sale, conveyance or lease, such changesin phraseology and form may be made in the Securities thereafter to be issuedas may be appropriate to reflect such occurrence.

 

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**ARTICLE IX**

** **

**SUPPLEMENTAL INDENTURES**

** **

SECTION 9.1  *Supplemental Indentureswithout Consent of Holders*.

 

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

 

(a)                                  toevidence the succession of another Person to the Company, and the assumption byany such successor of the covenants of the Company herein and in theSecurities; or

 

(b)                                 toevidence and provide for the acceptance of appointment hereunder by a successortrustee; or

 

(c)                                  tocure any ambiguity, to correct or supplement any provision herein that may bedefective or inconsistent with any other provision herein, or to make or amendany other provisions with respect to matters or questions arising under thisIndenture, which shall not be inconsistent with the other provisions of thisIndenture, *provided**,* that such action pursuant to this clause (b) shallnot adversely affect in any material respect the interests of any Holders orthe holders of the Preferred Securities; or

 

(d)                                 tocomply with the rules and regulations of any securities exchange orautomated quotation system on which any of the Securities may be listed, tradedor quoted; or

 

(e)                                  toadd to the covenants, restrictions or obligations of the Company or to add tothe Events of Default, *provided**,* that such action pursuant to this clause (c) shallnot adversely affect in any material respect the interests of any Holders orthe holders of the Preferred Securities; or

 

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

 

SECTION 9.2  *Supplemental Indentureswith Consent of Holders*.

 

(a)                                  Subjectto Section 9.1, with the consent of the Holders of not less than amajority in aggregate principal amount of the Outstanding Securities, by Act ofsaid Holders delivered to the Company and the Trustee, the Company, whenauthorized by a Board Resolution, and the Trustee may enter into an indentureor indentures supplemental hereto for the purpose of adding any provisions toor changing in any manner or eliminating any of the provisions of thisIndenture or of modifying in any manner the rights of the Holders of Securitiesunder this Indenture; *provided**,* that no such supplemental indenture shall, without theconsent of the Holder of each Outstanding Security,

 

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(i)                                     changethe Stated Maturity of the principal or any premium of any Security or change thedate of payment of any installment of interest (including any AdditionalInterest) on any Security, or reduce the principal amount thereof or the rateof interest thereon or any premium payable upon the redemption thereof orchange the place of payment where, or the coin or currency in which, anySecurity or interest thereon is payable, or restrict or impair the right toinstitute suit for the enforcement of any such payment on or after such date,or

 

(ii)                                  reducethe percentage in aggregate principal amount of the Outstanding Securities, theconsent of whose Holders is required for any such supplemental indenture, orthe consent of whose Holders is required for any waiver of compliance with anyprovision of this Indenture or of defaults hereunder and their consequencesprovided for in this Indenture, or modify any of the provisions of this Section 9.2,Section 5.13 or Section 10.7, except to increase anypercentage in aggregate principal amount of the Outstanding Securities, theconsent of whose Holders is required for any reason, or to provide that certainother provisions of this Indenture cannot be modified or waived without theconsent of the Holder of each Security;

 

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

 

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

 

SECTION 9.3  *Execution of SupplementalIndentures*.

 

In executing or accepting the additionaltrusts created by any supplemental indenture permitted by this Article IXor the modifications thereby of the trusts created by this Indenture, theTrustee shall be entitled to receive, and shall be fully protected inconclusively relying upon, an Officers’ Certificate and an Opinion of Counselstating that the execution of such supplemental indenture is authorized orpermitted by this Indenture, and that all conditions precedent herein providedfor relating to such action have been complied with. The Trustee may, but shallnot be obligated to, enter into any such supplemental indenture that affectsthe Trustee’s own rights, duties, indemnities or immunities under thisIndenture or otherwise.  Copies of thefinal form of each supplemental indenture shall be delivered by the Trustee atthe expense of the Company to each Holder, and, if the Trustee is the PropertyTrustee, to each holder of Preferred Securities, promptly after the executionthereof.

 

SECTION 9.4  *Effect of SupplementalIndentures*.

 

Upon the execution of any supplementalindenture under this Article IX, this Indenture shall be modifiedin accordance therewith, and such supplemental indenture shall form a part of

 

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this Indenture for all purposes; and every Holder of Securities andevery holder of Preferred Securities theretofore or thereafter authenticatedand delivered hereunder shall be bound thereby.

 

SECTION 9.5  *Reference in Securities toSupplemental Indentures*.

 

Securities authenticated and delivered afterthe execution of any supplemental indenture pursuant to this Article IXmay, and shall if required by the Company, bear a notation in form approvedby the Company as to any matter provided for in such supplemental indenture. Ifthe Company shall so determine, new Securities so modified as to conform, inthe opinion of the Company, to any such supplemental indenture may be preparedand executed by the Company and authenticated and delivered by the Trustee inexchange for Outstanding Securities.

 

**ARTICLE X**

** **

**COVENANTS**

** **

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

 

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

 

SECTION 10.2  *M**oney for SecurityPayments to be Held in Trust*.

 

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

 

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

 

(c)                                  TheCompany will cause each Paying Agent for the Securities other than the Trusteeto execute and deliver to the Trustee an instrument in which such Paying Agentshall agree with the Trustee, subject to the provisions of this Section 10.2,that such Paying Agent will (i) comply with the provisions of thisIndenture and the Trust Indenture Act applicable to it as a Paying Agent and (ii) duringthe continuance of any default by the Company (or any other obligor upon theSecurities) in the making of any payment in respect of the Securities, upon the

 

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written request ofthe Trustee, forthwith pay to the Trustee all sums held in trust by such PayingAgent for payment in respect of the Securities.

 

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

 

(e)                                  Anymoney deposited with the Trustee or any Paying Agent, or then held by theCompany in trust for the payment of the principal of and any premium orinterest (including any Additional Interest) on any Security and remainingunclaimed for two years after such principal and any premium or interest(including Additional Interest) has become due and payable shall (unlessotherwise required by mandatory provision of applicable escheat or abandoned orunclaimed property law) be paid on Company Request to the Company, or (if thenheld by the Company) shall (unless otherwise required by mandatory provision ofapplicable escheat or abandoned or unclaimed property law) be discharged fromsuch trust; and the Holder of such Security shall thereafter, as an unsecuredgeneral creditor, look only to the Company for payment thereof, and all liabilityof the Trustee or such Paying Agent with respect to such trust money, and allliability of the Company as trustee thereof, shall thereupon cease; *provided**,*that the Trustee or such Paying Agent, before being required to make any suchrepayment, may at the expense of the Company cause to be published once, in anewspaper published in the English language, customarily published on eachBusiness Day and of general circulation in the Borough of Manhattan, The Cityof New York, notice that such money remains unclaimed and that, after a datespecified therein, which shall not be less than thirty (30) days from the dateof such publication, any unclaimed balance of such money then remaining will berepaid 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 ofthe Company ending after the date hereof, an Officers’ Certificate covering thepreceding calendar year, stating whether or not to the knowledge of the signersthereof the Company is in default in the performance or observance of any ofthe terms, provisions and conditions of this Indenture (without regard to anyperiod of grace or requirement of notice provided hereunder), and if theCompany shall be in default, specifying all such defaults and the nature andstatus thereof of which they may have knowledge.  The delivery requirements of this Section 10.3may be satisfied by compliance with Section 8.16(a) of the TrustAgreement.

 

SECTION 10.4  *Calculation Agent*.

 

(a)                                  TheCompany hereby agrees that for so long as any of the Securities remainOutstanding, there will at all times be an agent appointed to calculate LIBORin respect of each Interest Payment Date in accordance with the terms of Schedule A(the “*Calculation Agent*”).

 

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The Company hasinitially appointed the Property Trustee as Calculation Agent for purposes ofdetermining LIBOR for each Interest Payment Date.  The Calculation Agent may be removed by theCompany at any time.  Notwithstanding theforegoing, so long as the Property Trustee holds any of the Securities, theCalculation Agent shall be the Property Trustee.  If the Calculation Agent is unable orunwilling to act as such or is removed by the Company, the Company willpromptly appoint as a replacement Calculation Agent the London office of aleading bank which is engaged in transactions in Eurodollar deposits in theinternational Eurodollar market and which does not control or is not controlledby or under common control with the Company or its Affiliates. The CalculationAgent may not resign its duties without a successor having been duly appointed.

 

(b)                                 TheCalculation Agent shall be required to agree that, as soon as possible after11:00 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 Dayimmediately following each LIBOR Determination Date, the Calculation Agent willcalculate the interest rate (the Interest Payment shall be rounded to thenearest cent, with half a cent being rounded upwards) for the related InterestPayment Date, and will communicate such rate and amount to the Company, theTrustee, each Paying Agent and the Depositary. The Calculation Agent will alsospecify to the Company the quotations upon which the foregoing rates andamounts are based and, in any event, the Calculation Agent shall notify theCompany before 5:00 p.m. (London time) on each LIBOR Determination Datethat either:  (i) it has determinedor is in the process of determining the foregoing rates and amounts or (ii) ithas not determined and is not in the process of determining the foregoing ratesand amounts, together with its reasons therefor. The Calculation Agent’sdetermination of the foregoing rates and amounts for any Interest Payment Datewill (in the absence of manifest error) be final and binding upon allparties.  For the sole purpose ofcalculating the interest rate for the Securities, “Business Day” shall bedefined as any day on which dealings in deposits in Dollars are transacted inthe London interbank market.

 

SECTION 10.5  *Additional Tax Sums*.

 

So long as no Event of Default has occurredand is continuing, if (a) the Trust is the Holder of all of theOutstanding Securities and (b) a Tax Event described in clause (i) or(iii) in the definition of Tax Event in Section 1.1 hereof hasoccurred and is continuing, the Company shall pay to the Trust (and itspermitted successors or assigns under the related Trust Agreement) for so longas the Trust (or its permitted successor or assignee) is the registered holderof the Outstanding Securities, such amounts as may be necessary in order thatthe amount of Distributions (including any Additional Interest Amount (asdefined in the Trust Agreement)) then due and payable by the Trust on thePreferred Securities and Common Securities that at any time remain outstandingin accordance with the terms thereof shall not be reduced as a result of any AdditionalTaxes arising from such Tax Event (additional such amounts payable by theCompany to the Trust, the “*Additional TaxSums*”). Whenever inthis Indenture or the Securities there is a reference in any context to thepayment of principal of or interest on the Securities, such mention shall bedeemed to include mention of the payments of the Additional Tax Sums providedfor in this Section 10.5 to the extent that, in such context,Additional Tax Sums are, were or would be payable in respect thereof pursuantto the provisions of this Section 10.5 and express mention of thepayment of Additional Tax Sums (if applicable) in any provisions hereof shallnot be construed as excluding Additional Tax Sums in those provisions hereofwhere such

 

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

 

SECTION 10.6  *Additional Covenants*.

 

(a)                                  TheCompany covenants and agrees with each Holder of Securities that if an Event ofDefault shall have occurred and be continuing or the Company shall have givennotice of its election to begin an Extension Period with respect to theSecurities or such Extension Period, or any extension thereof, shall becontinuing, it shall not (i) declare or pay any dividends or distributionson, or redeem, purchase, acquire or make a liquidation payment with respect to,any units of the Company’s limited partnership interests, (ii) vote infavor of or permit or otherwise allow any of its subsidiaries to declare or payany dividends or distributions on, or redeem, purchase, acquire or make aliquidation payment with respect to or otherwise retire, any shares of suchsubsidiaries preferred stock (for the avoidance of doubt, whether suchpreferred stock is perpetual or otherwise), or (iii) make any payment ofprincipal of or any interest or premium, if any, on or repay, repurchase orredeem any debt securities of the Company that rank *pari passu* inall respects with or junior in interest to the Securities (other than (A) repurchases,redemptions or other acquisitions of units of limited partnership interests ofthe Company in connection with any employment contract, benefit plan or othersimilar arrangement with or for the benefit of any one or more employees,officers, directors or consultants, in connection with a dividend reinvestmentor limited partnership interests purchase plan or in connection with theissuance of limited partnership interests of the Company (or securitiesconvertible into or exercisable for such units of limited partnershipinterests) as consideration in an acquisition transaction entered into prior tothe Event of Default or the applicable Extension Period, (B) as a resultof an exchange or conversion of any class or series of the Company’s limitedpartnership interests (or any capital stock or limited partnership interests ofa Subsidiary of the Company) for any class or series of the Company’s limitedpartnership interests or of any class or series of the Company’s indebtednessfor any class or series of the Company’s limited partnership interests, (C) thepurchase of fractional interests in the Company’s limited partnership interestspursuant to the conversion or exchange provisions of such limited partnershipinterests or the security being converted or exchanged, (D) anydeclaration of a dividend in connection with any Rights Plan, the issuance ofrights, limited partnership interests or other property under any Rights Planor the redemption or repurchase of rights pursuant thereto or (E) anydividend in the form of limited partnership interests, warrants, options orother rights where the dividend limited partnership interests or the limitedpartnership interests issuable upon exercise of such warrants, options or otherrights is the same limited partnership interests as that on which the dividendis being paid or ranks *pari passu*with or junior to such limited partnership interests).

 

(b)                                 TheCompany also covenants with each Holder of Securities (i) to hold,directly or indirectly, one hundred percent (100%) of the Common Securities ofthe Trust, *provided**,* that any permitted successor of the Company hereunder maysucceed to the Company’s ownership of such Common Securities, (ii) asholder of such Common Securities, not to voluntarily dissolve, wind-up orliquidate the Trust other than (A) in connection with a distribution ofthe Securities to the holders of the Preferred Securities in liquidation of theTrust or (B) in connection with certain mergers, consolidations oramalgamations permitted by the Trust Agreement and (iii) to use itsreasonable commercial efforts, consistent with the terms and provisions of theTrust Agreement,

 

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to cause the Trustto continue to be taxable as a grantor trust and not as a corporation forUnited States Federal income tax purposes.

 

(c)                                  TheCompany also agrees to use its reasonable best efforts to meet the requirementsto qualify, for the fiscal year ending December 31, 2004, and all futureyears, as a real estate investment trust under the Internal Revenue Code of1986, as amended.

 

(d)                                 TheCompany shall comply with the provisions of the Side Letter.

 

SECTION 10.7  *Waiver of Covenants*.

 

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

 

SECTION 10.8  *Treatment of Securities*.

 

The Company will treat the Securities asindebtedness, and the amounts, other than payments of principal, payable inrespect 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 bemade free and clear of U.S. withholding tax to any beneficial owner thereofthat has provided an Internal Revenue Service Form W-9 or W-8BEN (or anysubstitute 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 acomplete exemption from U.S. withholding tax.

 

**ARTICLE XI**

** **

**REDEMPTION OF SECURITIES**

** **

SECTION 11.1  *Optional Redemption*.

 

The Company may, at its option, on anyInterest Payment Date, on or after October 30, 2010, redeem the Securitiesin whole at any time or in part from time to time, at a Redemption Price equalto one hundred percent (100%) of the principal amount thereof (or of theredeemed portion thereof, as applicable), together, in the case of any suchredemption, with accrued and unpaid interest, including any AdditionalInterest, through but excluding the date fixed as the Redemption Date (the “*Optional Redemption Price*”).

 

SECTION 11.2  *Special Event Redemption*.

 

Prior to October 30, 2010, upon theoccurrence and during the continuation of a Special Event, the Company may, atits option, redeem the Securities, in whole but not in part, at a

 

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Redemption Price equal to one hundred seven and one half percent(107.5%) of the principal amount thereof, together, in the case of any suchredemption, with accrued interest, including any Additional Interest, throughbut excluding the date fixed as the Redemption Date (the “*Special Redemption Price*”).

 

SECTION 11.3  *Election to Redeem; Noticeto Trustee*.

 

The election of the Company to redeem anySecurities, in whole or in part, shall be evidenced by or pursuant to a BoardResolution.  In case of any redemption atthe 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 theTrustee and the Property Trustee under the Trust Agreement in writing of suchdate and of the principal amount of the Securities to be redeemed and providethe additional information required to be included in the notice or noticescontemplated by Section 11.5. In the case of any redemption ofSecurities, in whole or in part, (a) prior to the expiration of anyrestriction on such redemption provided in this Indenture or the Securities or (b) pursuantto an election of the Company which is subject to a condition specified in thisIndenture or the Securities, the Company shall furnish the Trustee with anOfficers’ Certificate and an Opinion of Counsel evidencing compliance with suchrestriction or condition.

 

SECTION 11.4  *Selection of Securities tobe Redeemed*.

 

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

 

(b)                                 TheTrustee shall promptly notify the Company in writing of the Securities selectedfor redemption and, in the case of any Securities selected for partialredemption, the principal amount thereof to be redeemed. For all purposes ofthis Indenture, unless the context otherwise requires, all provisions relatingto the redemption of Securities shall relate, in the case of any Securityredeemed or to be redeemed only in part, to the portion of the principal amountof such Security that has been or is to be redeemed.

 

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

 

SECTION 11.5  *Notice of Redemption*.

 

(a)                                  Noticeof redemption shall be given not later than the thirtieth (30th) day, and not earlier than thesixtieth (60th) day,prior to the Redemption Date to each Holder of Securities to be

 

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redeemed, in wholeor in part (unless a shorter notice shall be satisfactory to the PropertyTrustee under the related Trust Agreement).

 

(b)                                 Withrespect to Securities to be redeemed, in whole or in part, each notice ofredemption shall state:

 

(i)                                     theRedemption Date;

 

(ii)                                  theRedemption Price or, if the Redemption Price cannot be calculated prior to thetime 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 estimateand that the actual Redemption Price will be calculated on the fifth BusinessDay prior to the Redemption Date (and if an estimate is provided, a furthernotice shall be sent of the actual Redemption Price on the date that such RedemptionPrice is calculated);

 

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

 

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

 

(v)                                 theplace or places where such Securities are to be surrendered for payment of theRedemption Price.

 

(c)                                  Noticeof redemption of Securities to be redeemed, in whole or in part, at theelection of the Company shall be given by the Company or, at the Company’srequest, by the Trustee in the name and at the expense of the Company and shallbe irrevocable. The notice if mailed in the manner provided above shall beconclusively presumed to have been duly given, whether or not the Holderreceives such notice. In any case, a failure to give such notice by mail or anydefect in the notice to the Holder of any Security designated for redemption asa whole or in part shall not affect the validity of the proceedings for theredemption of any other Security.

 

SECTION 11.6  *Deposit of RedemptionPrice*.

 

Prior to 10:00 a.m., New York City time,on the Redemption Date specified in the notice of redemption given as providedin Section 11.5, the Company will deposit with the Trustee or withone 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 accruedinterest (including any Additional Interest) on, all the Securities (orportions thereof) that are to be redeemed on that date.

 

SECTION 11.7  *Payment of SecuritiesCalled for Redemption*.

 

(a)                                  Ifany notice of redemption has been given as provided in Section 11.5,the Securities or portion of Securities with respect to which such notice hasbeen given shall become

 

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due and payable onthe date and at the place or places stated in such notice at the applicableRedemption Price, together with accrued interest (including any AdditionalInterest) to the Redemption Date. On presentation and surrender of suchSecurities at a Place of Payment specified in such notice, the Securities orthe specified portions thereof shall be paid and redeemed by the Company at theapplicable Redemption Price, together with accrued interest (including anyAdditional Interest) to the Redemption Date.

 

(b)                                 Uponpresentation of any Security redeemed in part only, the Company shall executeand the Trustee shall authenticate and deliver to the Holder thereof, at theexpense of the Company, a new Security or Securities, of authorizeddenominations, in aggregate principal amount equal to the unredeemed portion ofthe Security so presented and having the same Original Issue Date, StatedMaturity and terms.

 

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

 

**ARTICLE XII**

** **

**SUBORDINATION OF SECURITIES**

** **

SECTION 12.1  *Securities Subordinate toSenior Debt*.

 

The Company covenants and agrees, and eachHolder 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 anyAdditional Interest) on each and all of the Securities are hereby expresslymade subordinate and subject in right of payment to the prior payment in fullof all Senior Debt.

 

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

 

(a)                                  Inthe event and during the continuation of any default by the Company in thepayment of any principal of or any premium or interest on any Senior Debt(following any grace period, if applicable) when the same becomes due andpayable, whether at maturity or at a date fixed for prepayment or bydeclaration of acceleration or otherwise, then, upon written notice of suchdefault to the Company by the holders of such Senior Debt or any trusteetherefor, unless and until such default shall have been cured or waived orshall 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 onaccount of the principal of or any premium or interest (including anyAdditional Interest) on any of the Securities, or in respect of any redemption,repayment, retirement, purchase or other acquisition of any of the Securities.

 

(b)                                 Inthe 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, hereinsometimes referred to as a “*Proceeding*”),all Senior Debt (including any interest thereon accruing after the commencementof any such proceedings) shall first be paid in full before any payment or

 

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distribution,whether in cash, securities or other property, shall be made to any Holder ofany of the Securities on account thereof. Any payment or distribution, whetherin cash, securities or other property (other than securities of the Company orany other entity provided for by a plan of reorganization or readjustment thepayment of which is subordinate, at least to the extent provided in thesesubordination provisions with respect to the indebtedness evidenced by theSecurities, to the payment of all Senior Debt at the time outstanding and toany securities issued in respect thereof under any such plan of reorganizationor readjustment), which would otherwise (but for these subordinationprovisions) be payable or deliverable in respect of the Securities shall bepaid or delivered directly to the holders of Senior Debt in accordance with thepriorities then existing among such holders until all Senior Debt (includingany interest thereon accruing after the commencement of any Proceeding) shallhave been paid in full.

 

(c)                                  Inthe event of any Proceeding, after payment in full of all sums owing withrespect to Senior Debt, the Holders of the Securities, together with theholders of any obligations of the Company ranking on a parity with theSecurities, shall be entitled to be paid from the remaining assets of theCompany the amounts at the time due and owing on account of unpaid principal ofand any premium and interest (including any Additional Interest) on theSecurities and such other obligations before any payment or other distribution,whether in cash, property or otherwise, shall be made on account of any limitedpartnership interests of the Company or any obligations of the Company rankingjunior to the Securities and such other obligations. If, notwithstanding theforegoing, any payment or distribution of any character on any security,whether in cash, securities or other property (other than securities of theCompany or any other entity provided for by a plan of reorganization orreadjustment the payment of which is subordinate, at least to the extentprovided in these subordination provisions with respect to the indebtednessevidenced by the Securities, to the payment of all Senior Debt at the timeoutstanding and to any securities issued in respect thereof under any such planof reorganization or readjustment) shall be received by the Trustee or anyHolder in contravention of any of the terms hereof and before all Senior Debtshall have been paid in full, such payment or distribution or security shall bereceived in trust for the benefit of, and shall be paid over or delivered andtransferred to, the holders of the Senior Debt at the time outstanding inaccordance with the priorities then existing among such holders for applicationto the payment of all Senior Debt remaining unpaid, to the extent necessary topay all such Senior Debt (including any interest thereon accruing after thecommencement of any Proceeding) in full. In the event of the failure of theTrustee or any Holder to endorse or assign any such payment, distribution orsecurity, each holder of Senior Debt is hereby irrevocably authorized toendorse or assign the same.

 

(d)                                 TheTrustee and the Holders, at the expense of the Company, shall take suchreasonable action (including the delivery of this Indenture to an agent for anyholders of Senior Debt or consent to the filing of a financing statement withrespect hereto) as may, in the opinion of counsel designated by the holders ofa majority in principal amount of the Senior Debt at the time outstanding, benecessary or appropriate to assure the effectiveness of the subordinationeffected by these provisions.

 

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

 

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

 

SECTION 12.3  *Payment Permitted If NoDefault*.

 

Nothing contained in this Article XIIor elsewhere in this Indenture or in any of the Securities shall prevent (a) theCompany, at any time, except during the pendency of the conditions described inparagraph (a) of Section 12.2 or of any Proceeding referred toin Section 12.2, from making payments at any time of principal ofand any premium or interest (including any Additional Interest) on theSecurities or (b) the application by the Trustee of any moneys depositedwith it hereunder to the payment of or on account of the principal of and anypremium or interest (including any Additional Interest) on the Securities orthe retention of such payment by the Holders, if, at the time of suchapplication 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 ofHolders of Senior Debt*.

 

Subject to the payment in full of all amountsdue or to become due on all Senior Debt, or the provision for such payment incash or cash equivalents or otherwise in a manner satisfactory to the holdersof Senior Debt, the Holders of the Securities shall be subrogated to the extentof the payments or distributions made to the holders of such Senior Debtpursuant to the provisions of this Article XII (equally and ratablywith the holders of all indebtedness of the Company that by its express termsis subordinated to Senior Debt of the Company to substantially the same extentas the Securities are subordinated to the Senior Debt and is entitled to likerights of subrogation by reason of any payments or distributions made toholders of such Senior Debt) to the rights of the holders of such Senior Debtto receive payments and distributions of cash, property and securitiesapplicable to the Senior Debt until the principal of and any premium andinterest (including any Additional Interest) on the Securities shall be paid infull. For purposes of such subrogation, no payments or distributions to theholders of the Senior Debt of any cash, property or securities to which theHolders of the Securities or the Trustee would be entitled except for theprovisions of this Article XII, and no payments made pursuant tothe provisions of this Article XII to the holders of Senior Debt byHolders of the Securities or the Trustee, shall, as among the Company, itscreditors 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 ofthe Senior Debt.

 

SECTION 12.5  *Provisions Solely toDefine Relative Rights*.

 

The provisions of this Article XIIare and are intended solely for the purpose of defining the relative rights ofthe Holders of the Securities on the one hand and the holders of Senior Debt onthe other hand. Nothing contained in this Article XII or elsewherein 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 ofthe Company, which are absolute and unconditional, to pay to the Holders of theSecurities the principal of and any premium and

 

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interest (including any Additional Interest) on the Securities as andwhen the same shall become due and payable in accordance with their terms, (b) affectthe relative rights against the Company of the Holders of the Securities andcreditors of the Company other than their rights in relation to the holders ofSenior Debt or (c) prevent the Trustee or the Holder of any Security (orto the extent expressly provided herein, the holder of any Preferred Security)from exercising all remedies otherwise permitted by applicable law upon defaultunder this Indenture, including filing and voting claims in any Proceeding,subject to the rights, if any, under this Article XII of theholders of Senior Debt to receive cash, property and securities otherwisepayable or deliverable to the Trustee or such Holder.

 

SECTION 12.6  *Trustee to EffectuateSubordination*.

 

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

 

SECTION 12.7  *No Waiver of SubordinationProvisions*.

 

(a)                                  Noright of any present or future holder of any Senior Debt to enforcesubordination as herein provided shall at any time in any way be prejudiced orimpaired by any act or failure to act on the part of the Company or by any actor failure to act, in good faith, by any such holder, or by any noncomplianceby the Company with the terms, provisions and covenants of this Indenture,regardless of any knowledge thereof that any such holder may have or beotherwise charged with.

 

(b)                                 Withoutin 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 theconsent of or notice to the Trustee or the Holders of the Securities, withoutincurring responsibility to such Holders of the Securities and withoutimpairing or releasing the subordination provided in this Article XIIor the obligations hereunder of such Holders of the Securities to the holdersof Senior Debt, do any one or more of the following: (i) change themanner, place or terms of payment or extend the time of payment of, or renew oralter, Senior Debt, or otherwise amend or supplement in any manner Senior Debtor any instrument evidencing the same or any agreement under which Senior Debtis outstanding, (ii) sell, exchange, release or otherwise deal with anyproperty pledged, mortgaged or otherwise securing Senior Debt, (iii) releaseany Person liable in any manner for the payment of Senior Debt and (iv) exerciseor refrain from exercising any rights against the Company and any other Person.

 

SECTION 12.8  *Notice to Trustee*.

 

(a)                                  TheCompany shall give prompt written notice to a Responsible Officer of theTrustee of any fact known to the Company that would prohibit the making of anypayment to or by the Trustee in respect of the Securities. Notwithstanding theprovisions of this Article XII or any other provision of thisIndenture, the Trustee shall not be charged with knowledge of the existence ofany facts that would prohibit the making of any payment to or by the Trustee inrespect of the Securities, unless and until a Responsible Officer of theTrustee shall have

 

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received writtennotice 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 noticeprovided for in this Section 12.8 at least two Business Days priorto the date upon which by the terms hereof any monies may become payable forany purpose (including, the payment of the principal of and any premium on orinterest (including any Additional Interest) on any Security), then, anythingherein contained to the contrary notwithstanding, the Trustee shall have fullpower and authority to receive such monies and to apply the same to the purposefor which they were received and shall not be affected by any notice to thecontrary that may be received by it within two Business Days prior to suchdate.

 

(b)                                 TheTrustee shall be entitled to rely on the delivery to it of a written notice bya Person representing himself or herself to be a holder of Senior Debt (or atrustee, agent, representative or attorney-in-fact therefor) to establish thatsuch 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 Trusteedetermines in good faith that further evidence is required with respect to theright of any Person as a holder of Senior Debt to participate in any payment ordistribution pursuant to this Article XII, the Trustee may requestsuch Person to furnish evidence to the reasonable satisfaction of the Trusteeas to the amount of Senior Debt held by such Person, the extent to which suchPerson is entitled to participate in such payment or distribution and any otherfacts pertinent to the rights of such Person under this Article XII,and if such evidence is not furnished, the Trustee may defer any payment tosuch Person pending judicial determination as to the right of such Person toreceive such payment.

 

SECTION 12.9  *Reliance on Judicial Orderor Certificate of Liquidating Agent*.

 

Upon any payment or distribution of assets ofthe Company referred to in this Article XII, the Trustee and theHolders of the Securities shall be entitled to conclusively rely upon any orderor decree entered by any court of competent jurisdiction in which such Proceedingis pending, or a certificate of the trustee in bankruptcy, receiver,liquidating trustee, custodian, assignee for the benefit of creditors, agent orother Person making such payment or distribution, delivered to the Trustee orto the Holders of Securities, for the purpose of ascertaining the Personsentitled to participate in such payment or distribution, the holders of theSenior Debt and other indebtedness of the Company, the amount thereof orpayable thereon, the amount or amounts paid or distributed thereon and allother facts pertinent thereto or to this Article XII.

 

SECTION 12.10  *Trustee Not Fiduciary forHolders of Senior Debt*.

 

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

 

SECTION 12.11  *Rights of Trustee asHolder of Senior Debt; Preservation of Trustee’s Rights.*

 

The Trustee in its individual capacity shallbe entitled to all the rights set forth in this

 

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Article XIIwith respect to any Senior Debt that may at any time be held by it, to the sameextent as any other holder of Senior Debt, and nothing in this Indenture shalldeprive the Trustee of any of its rights as such holder.

 

SECTION 12.12  *Article Applicable toPaying Agents*.

 

If at any time any Paying Agent other thanthe Trustee shall have been appointed by the Company and be then actinghereunder, the term “Trustee”as used in this Article XII shall in such case (unless the contextotherwise requires) be construed as extending to and including such PayingAgent within its meaning as fully for all intents and purposes as if suchPaying Agent were named in this Article XII in addition to or inplace of the Trustee; *provided**,* that Sections 12.8 and 12.11 shall not applyto the Company or any Affiliate of the Company if the Company or such Affiliateacts as Paying Agent.

 

****

 

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

 

* * * *

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to beduly 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: |

 

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**Schedule A**

 

**DETERMINATION OF LIBOR**

 

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

 

(1)                                  On the second LIBORBusiness Day (as defined below) prior to an Interest Payment Date (except withrespect to the first interest payment period, such date shall be August 5,2005) (each such day, a “*LIBOR DeterminationDate*”), LIBOR for any given security shall for the followinginterest payment period equal the rate, as obtained by the Calculation Agentfrom Bloomberg Financial Markets Commodities News, for three-month Eurodollardeposits that appears on Dow Jones Telerate Page 3750 (as defined in theInternational Swaps and Derivatives Association, Inc. 2000 Interest Rateand Currency Exchange Definitions), or such other page as may replace suchPage 3750, as of 11:00 a.m. (London time) on such LIBOR DeterminationDate.

 

(2)                                  If, on any LIBORDetermination Date, such rate does not appear on Dow Jones Telerate Page 3750or such other page as may replace such Page 3750, the CalculationAgent shall determine the arithmetic mean of the offered quotations of theReference Banks (as defined below) to leading banks in the London interbankmarket for three-month Eurodollar deposits in an amount determined by theCalculation Agent by reference to requests for quotations as of approximately11:00 a.m. (London time) on the LIBOR Determination Date made by theCalculation Agent to the Reference Banks. If, on any LIBOR Determination Date, at least two of the Reference Banksprovide such quotations, LIBOR shall equal such arithmetic mean of suchquotations.  If, on any LIBORDetermination Date, only one or none of the Reference Banks provide suchquotations, LIBOR shall be deemed to be the arithmetic mean of the offered quotationsthat leading banks in the City of New York selected by the Calculation Agentare quoting on the relevant LIBOR Determination Date for three-month Eurodollardeposits in an amount determined by the Calculation Agent by reference to theprincipal London offices of leading banks in the London interbank market; provided that, if the CalculationAgent is required but is unable to determine a rate in accordance with at leastone of the procedures provided above, LIBOR shall be LIBOR as determined on theprevious LIBOR Determination Date.

 

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

 

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