**Exhibit 10.22**

 

**JUNIOR SUBORDINATED INDENTURE**

 

between

 

 

**GKK CAPITAL LP**

 

 

and

 

 

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,*as Trustee*

 

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Dated as of May 20, 2005

 

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**TABLE OFCONTENTS**

 
| ARTICLE I     | DEFINITIONS AND OTHER PROVISIONS OF GENERAL  APPLICATION   |   |
|--------------------|------------------------------------------------------------|--------|
| Section 1.1.  | Definitions                                                |   |
| Section 1.2.  | Compliance Certificate  and Opinions                       |   |
| Section 1.3.  | Forms of Documents  Delivered to Trustee                   |   |
| Section 1.4.  | Acts of Holders                                            |   |
| Section 1.5.  | Notices, Etc. to  Trustee and Company                      |   |
| Section 1.6.  | Notice to Holders;  Waiver                                 |   |
| Section 1.7.  | Effect of Headings and  Table of Contents                  |   |
| Section 1.8.  | Successors and Assigns                                     |   |
| Section 1.9.  | Separability Clause                                        |   |
| Section 1.10. | Benefits of Indenture                                      |   |
| Section 1.11. | Governing Law                                              |   |
| Section 1.12. | Submission to  Jurisdiction                                |   |
| Section 1.13. | Non-Business Days                                          |   |
| ARTICLE II    | SECURITY FORMS                                             |   |
| Section 2.1.  | Form of Security                                      |   |
| Section 2.2.  | Restricted Legend                                          |   |
| Section 2.3.  | Form of  Trustee’s Certificate of Authentication |   |
| Section 2.4.  | Temporary  Securities                                      |   |
| Section 2.5.  | Definitive  Securities                                     |   |
| ARTICLE III   | THE SECURITIES                                             |   |
| Section 3.1.  | Payment  of Principal and Interest                         |   |
| Section 3.2.  | Denominations                                              |   |
| Section 3.3.  | Execution,  Authentication, Delivery and Dating            |   |
| Section 3.4.  | Global  Securities                                         |   |
| Section 3.5.  | Registration,  Transfer and Exchange Generally             |   |
| Section 3.6.  | Mutilated,  Destroyed, Lost and Stolen Securities          |   |
| Section 3.7.  | Persons  Deemed Owners                                     |   |
| Section 3.8.  | Cancellation                                               |   |
|                    |                                                            |        |  |

 

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| Section 3.9.  | Deferrals  of Interest Payment Dates                                                                                                   |   |
|--------------------|----------------------------------------------------------------------------------------------------------------------------------------|--------|
| Section 3.10. | Reserved                                                                                                                               |   |
| Section 3.11. | Agreed  Tax Treatment                                                                                                                  |   |
| Section 3.12. | CUSIP  Numbers                                                                                                                         |   |
| ARTICLE IV    | SATISFACTION AND DISCHARGE                                                                                                             |   |
| Section 4.1.  | Satisfaction  and Discharge of Indenture                                                                                               |   |
| Section 4.2.  | Application  of Trust Money                                                                                                            |   |
| ARTICLE V     | REMEDIES                                                                                                                               |   |
| Section 5.1.  | Events  of Default                                                                                                                     |   |
| Section 5.2.  | Acceleration  of Maturity; Rescission and Annulment                                                                                    |   |
| Section 5.3.  | Collection  of Indebtedness and Suits for Enforcement by Trustee.                                                                      |   |
| Section 5.4.  | Trustee  May File Proofs of Claim                                                                                                 |   |
| Section 5.5.  | Trustee  May Enforce Claim Without Possession of Securities                                                                       |   |
| Section 5.6.  | Application  of Money Collected                                                                                                        |   |
| Section 5.7.  | Limitation  on Suits                                                                                                                   |   |
| Section 5.8.  | Unconditional  Right of Holders to Receive Principal, Premium, if any, and Interest; Direct  Action by Holders of Preferred Securities |   |
| Section 5.9.  | Restoration  of Rights and Remedies                                                                                                    |   |
| Section 5.10. | Rights  and Remedies Cumulative                                                                                                        |   |
| Section 5.11. | Delay  or Omission Not Waiver                                                                                                          |   |
| Section 5.12. | Control  by Holders                                                                                                                    |   |
| Section 5.13. | Waiver  of Past Defaults                                                                                                               |   |
| Section 5.14. | Undertaking  for Costs                                                                                                                 |   |
| Section 5.15. | Waiver  of Usury, Stay or Extension Laws                                                                                               |   |
| ARTICLE VI    | THE TRUSTEE                                                                                                                            |   |
| Section 6.1.  | Corporate  Trustee Required                                                                                                            |   |
| Section 6.2.  | Certain  Duties and Responsibilities                                                                                                   |   |
| Section 6.3.  | Notice  of Defaults                                                                                                                    |   |
| Section 6.4.  | Certain  Rights of Trustee                                                                                                             |   |
|                    |                                                                                                                                        |        |  |

 

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| Section 6.5.  | May Hold  Securities                                    |   |
|--------------------|--------------------------------------------------------------|--------|
| Section 6.6.  | Compensation;  Reimbursement; Indemnity                      |   |
| Section 6.7.  | Resignation  and Removal; Appointment of Successor           |   |
| Section 6.8.  | Acceptance  of Appointment by Successor                      |   |
| Section 6.9.  | Merger,  Conversion, Consolidation or Succession to Business |   |
| Section 6.10. | Not  Responsible for Recitals or Issuance of Securities      |   |
| Section 6.11. | Appointment  of Authenticating Agent                         |   |
| ARTICLE VII   | HOLDER’S LISTS AND REPORTS BY  COMPANY                  |   |
| Section 7.1.  | Company  to Furnish Trustee Names and Addresses of Holders   |   |
| Section 7.2.  | Preservation  of Information, Communications to Holders      |   |
| Section 7.3.  | Reports  by Company                                          |   |
| ARTICLE VIII  | CONSOLIDATION, MERGER,  CONVEYANCE, TRANSFER OR LEASE        |   |
| Section 8.1.  | Company  May Consolidate, Etc., Only on Certain Terms   |   |
| Section 8.2.  | Successor  Company Substituted                               |   |
| ARTICLE IX    | SUPPLEMENTAL INDENTURES                                      |   |
| Section 9.1.  | Supplemental  Indentures without Consent of Holders          |   |
| Section 9.2.  | Supplemental  Indentures with Consent of Holders             |   |
| Section 9.3.  | Execution  of Supplemental Indentures                        |   |
| Section 9.4.  | Effect  of Supplemental Indentures                           |   |
| Section 9.5.  | Reference  in Securities to Supplemental Indentures          |   |
| ARTICLE X     | COVENANTS                                                    |   |
| Section 10.1. | Payment  of Principal, Premium, if any, and Interest         |   |
| Section 10.2. | Money  for Security Payments to be Held in Trust             |   |
| Section 10.3. | Statement  as to Compliance                                  |   |
| Section 10.4. | Calculation  Agent                                           |   |
| Section 10.5. | Additional  Tax Sums                                         |   |
| Section 10.6. | Additional  Covenants                                        |   |
| Section 10.7. | Waiver  of Covenants                                         |   |
| Section 10.8. | Treatment  of Securities                                     |   |
|                    |                                                              |        |  |

 

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| ARTICLE XI     | REDEMPTION OF SECURITIES                                                                  |   |
|---------------------|-------------------------------------------------------------------------------------------|--------|
| Section 11.1.  | Optional  Redemption                                                                      |   |
| Section 11.2.  | Special  Event Redemption                                                                 |   |
| Section 11.3.  | Election  to Redeem; Notice to Trustee                                                    |   |
| Section 11.4.  | Selection  of Securities to be Redeemed                                                   |   |
| Section 11.5.  | Notice  of Redemption                                                                     |   |
| Section 11.6.  | Deposit  of Redemption Price                                                              |   |
| Section 11.7.  | Payment  of Securities Called for Redemption                                              |   |
| ARTICLE XII    | SUBORDINATION OF SECURITIES                                                               |   |
| Section 12.1.  | Securities  Subordinate to Senior Debt                                                    |   |
| Section 12.2.  | No  Payment When Senior Debt in Default; Payment Over of Proceeds Upon  Dissolution, Etc. |   |
| Section 12.3.  | Payment  Permitted If No Default                                                          |   |
| Section 12.4.  | Subrogation  to Rights of Holders of Senior Debt                                          |   |
| Section 12.5.  | Provisions  Solely to Define Relative Rights                                              |   |
| Section 12.6.  | Trustee  to Effectuate Subordination                                                      |   |
| Section 12.7.  | No  Waiver of Subordination Provisions                                                    |   |
| Section 12.8.  | Notice  to Trustee                                                                        |   |
| Section 12.9.  | Reliance  on Judicial Order or Certificate of Liquidating Agent                           |   |
| Section 12.10. | Trustee  Not Fiduciary for Holders of Senior Debt                                         |   |
| Section 12.11. | Rights  of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights        |   |
| Section 12.12. | Article Applicable  to Paying Agents                                                 |   |
|                     |                                                                                           |        |  |

 

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| **SCHEDULES**   |   |                                              |   |
|-----------------|--------|---------------------------------------------------|--------|
|            |   |                                              |   |
| Schedule A | – | Determination of LIBOR                            |   |
|            |   |                                              |   |
| Exhibit A  | -      | Form of Officer’s Financial Certificate |   |

 

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JUNIOR SUBORDINATED INDENTURE, dated as of****May 20, 2005, between GKK Capital LP, a Delaware limited partnership (the “*Company**”*), and JPMORGANCHASE BANK, NATIONALASSOCIATION, a national banking association, as Trustee (in suchcapacity, the “*Trustee**”*).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company has duly authorized the executionand delivery of this Indenture to provide for the issuance of its unsecuredjunior subordinated deferrable interest notes (the “*Securities**”*)issued to evidence loans made to the Company of the proceeds from the issuanceby **Gramercy******Capital Trust I, a **Delaware**statutorytrust (the “*Trust**”*), ofundivided preferred beneficial interests in the assets of the Trust (the “*Preferred Securities**”*) andundivided common beneficial interests in the assets of the Trust (the “*Common Securities**”***and, collectively with the PreferredSecurities, the “*TrustSecurities**”*),and to provide the terms and conditions upon which the Securities are to beauthenticated, issued and delivered; and

 

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

 

NOW, THEREFORE, this Indenture Witnesseth:

 

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

 

ARTICLE I

 

DEFINITIONS AND OTHER PROVISIONS OFGENERAL 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) unless the context otherwise requires, any reference to an “Article” or a “Section”refers to an Article or a Section, as the case may be, of this Indenture;

 

(e)  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*”*whenused with respect to any Holder, has the meaning specified in Section 1.4.

 

“*AdministrativeTrustee*” means, with respect to the Trust, each Person identified asan “Administrative Trustee” in the Trust Agreement, solely in its capacity asAdministrative Trustee of the Trust under the Trust Agreement and not in itsindividual capacity, or its successor in interest in such capacity, or anysuccessor Administrative Trustee appointed as therein provided.

 

*“*AdditionalInterest*”*meansthe interest, if any, that shall accrue on any amounts payable on theSecurities, the payment of which has not been made on the applicable InterestPayment Date and which shall accrue at the rate per annum specified ordetermined as specified in such Security, in each case to the extent legallyenforceable.

 

*“*AdditionalTax Sums*”*hasthe meaning specified in Section 10.5.

 

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

 

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

 

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

 

*“*AuthenticatingAgent*”* meansany Person authorized by the Trustee pursuant to Section 6.11 toact on behalf of the Trustee to authenticate the Securities.

 

*“*BankruptcyCode*”* meansTitle 11 of the United States Code or any successor statute(s) thereto, or anysimilar federal or state law for the relief of debtors, in each case as amendedfrom time to time.

 

*“*Boardof Directors*”*means the board of directors of the Company or any duly authorizedcommittee of that board.

 

*“*BoardResolution*”*meansa copy of a resolution certified by the Secretary or an Assistant Secretary ofthe Company to have been duly adopted by the Board of Directors and to be infull force and effect on the date of such certification.

 

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*“*BusinessDay*”* meansany day other than (i) a Saturday or Sunday, (ii) a day on whichbanking institutions in the City of New York are authorized or required by lawor executive order to remain closed or (iii) a day on which the CorporateTrust Office of the Trustee is closed for business.

 

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

 

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

 

*“*CommonSecurities*”*hasthe meaning specified in the first recital of this Indenture.

 

*“*CommonStock*”*meansthe common stock, par value $0.001 per share, of the Company.

 

*“*Company*”*meansthe Person named as the “*Company**”*in the first paragraph of this Indenture until a successor corporation shallhave become such pursuant to the applicable provisions of this Indenture, andthereafter “*Company**”* shallmean such successor corporation.

 

*“*CompanyRequest*”*and “*Company Order**”*mean,respectively, the written request or order signed in the name of the Company byits Chairman of the Board of Directors, its Vice Chairman of the Board ofDirectors, its Chief Executive Officer, President or a Vice President, and byits 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 at any particulartime its corporate trust business shall be administered, which office at thedate of this Indenture is located at**600 Travis, 50th Floor, Houston, Texas 77019 Attn:Institutional Trust Services—****Gramercy Capital Trust I****.**

 

*“*Debt*”* means,with respect to any Person, whether recourse is to all or a portion of theassets 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).

 

*“*DefaultedInterest*”* hasthe meaning specified in Section 3.1.

 

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

 

*“*Depositary*”*meansan organization registered as a clearing agency under the Exchange Act that isdesignated as Depositary by the Company or any successor thereto.  DTC will be the initial Depositary.

 

*“*DepositaryParticipant*”* meansa broker, dealer, bank, other financial institution or other Person for whomfrom time to time a Depositary effects book-entry transfers and pledges ofsecurities 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 the United Statesof America that, as at the time of payment, is legal tender for the payment ofpublic and private debts.

 

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

 

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

 

*“*Eventof Default*”*hasthe meaning specified in Section 5.1.

 

*“*ExchangeAct*”* meansthe Securities Exchange Act of 1934 or any statute successor thereto, in eachcase as amended from time to time.

 

*“*ExpirationDate*”* hasthe meaning specified in Section 1.4.

 

*“*ExtensionPeriod*”*hasthe meaning specified in Section 3.9.

 

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

 

 “*GAAP*” means United States generallyaccepted accounting principles, consistently applied, from time to time ineffect.

 

*“*GlobalSecurity*”*meansa Security that evidences all or part of the Securities, the ownership andtransfers of which shall be made through book entries by a Depositary.

 

*“*GovernmentObligation*”***means (a) any security that is (i) adirect obligation of the United States of America of which the full faith andcredit of the United States of America is pledged or (ii) an obligation ofa Person controlled or supervised by and acting as an agency or instrumentalityof the United States of America or the payment of which is unconditionallyguaranteed as a full faith and credit obligation by the United States ofAmerica, which, in either case (i) or (ii), is not callable or redeemableat the option of the issuer thereof, and (b) any depositary receipt issuedby a bank (as defined in Section 3(a)(2) of the Securities Act) as

 

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custodian with respect toany Government Obligation that is specified in clause (a) above and heldby such bank for the account of the holder of such depositary receipt, or withrespect to any specific payment of principal of or interest on any GovernmentObligation that is so specified and held, *provided*, that (except asrequired by law) such custodian is not authorized to make any deduction fromthe amount payable to the holder of such depositary receipt from any amountreceived by the custodian in respect of the Government Obligation or thespecific payment of principal or interest evidenced by such depositary receipt.

 

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

 

*“*Indenture*”*meansthis 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 March 30**,**June 30,****September 30**,**and****December 30of each year, commencing on September 30,2005, during the term of this Indenture.

 

*“*InvestmentCompany Act*”* meansthe Investment Company Act of 1940 or any successor statute thereto, in eachcase as amended from time to time.

 

“*Investment Company 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*”* hasthe meaning specified in Schedule A.

 

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

 

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

 

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

 

*“*Maturity,*”*whenused with respect to any Security, means the date on which the principal ofsuch Security or any installment of principal becomes due and payable astherein or herein provided, whether at the Stated Maturity or by declaration ofacceleration, call for redemption or otherwise.

 

*“*Noticeof Default*”***means a written notice of the kindspecified in Section 5.1(c).

 

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

 

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the Chief FinancialOfficer, the Treasurer, an Assistant Treasurer, the Secretary or an AssistantSecretary, of the Company and delivered to the Trustee.

 

*“*OperativeDocuments*”*meansthe Trust Agreement, the Indenture, the Purchase Agreement and the Securities.

 

*“*Opinionof Counsel*”*meansa written opinion of counsel, who may be counsel for or an employee of theCompany or any Affiliate of the Company.

 

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

 

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

 

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

 

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

 

(ii) Securities for whose payment or redemption money in the necessary amount hasbeen theretofore 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 of such redemptionhas been duly given pursuant to this Indenture or provision thereforsatisfactory to the Trustee has been made; and

 

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

 

*provided**,*thatin determining 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 or suchother obligor shall be disregarded and deemed not to be Outstanding, unless theCompany shall hold all Outstanding Securities, except that, in determiningwhether the Trustee shall be protected in relying upon any such request,demand, authorization, direction, notice, consent or waiver, only Securitiesthat a Responsible Officer of the Trustee actually knows to be so owned shallbe so disregarded. Securities so owned that have been pledged in good faith maybe regarded as Outstanding if the pledgee establishes to the satisfaction ofthe Trustee the pledgee’s right so to act with respect to such Securities andthat the pledgee is not the Company or any other obligor upon the Securities orany Affiliate of the Company or such other obligor. Notwithstanding anythingherein to the contrary, Securities initially issued to the Trust that are ownedby the Trust shall be deemed to be Outstanding notwithstanding the ownership bythe Company or an Affiliate of any beneficial interest in the Trust.

 

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*“*PayingAgent*”***means the Trustee or any Personauthorized by the Company to pay the principal of or any premium or intereston, or other amounts in respect of, any Securities on behalf of the Company.

 

*“*Person*”***means a legal person, including anyindividual, corporation, estate, partnership, joint venture, association, jointstock company, company, limited liability company, trust, unincorporatedassociation or government, or any agency or political subdivision thereof, or anyother entity of whatever nature.

 

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

 

*“*PreferredSecurities*”*hasthe meaning specified in the first recital of this Indenture.

 

*“*PredecessorSecurity*”*of anyparticular Security means every previous Security evidencing all or a portionof the same debt as that evidenced by such particular Security. For thepurposes of this definition, any security authenticated and delivered under Section 3.6in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed toevidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

*“*Proceeding*”*hasthe meaning specified in Section 12.2.

 

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

 

*“*PurchaseAgreement*”*meansthe agreement, dated as of the date hereof, between the Company and the Trustand Merrill Lynch International.

 

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

 

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

 

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

 

*“*RegularRecord Date*”*forthe interest payable on any Interest Payment Date with respect to theSecurities means the date that is fifteen (15) days preceding such InterestPayment Date (whether or not a Business Day).

 

*“*ResponsibleOfficer*”* means,when used with respect to the Trustee, the officer in the Institutional TrustServices department of the Trustee having direct responsibility for theadministration of this Indenture.

 

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*“*RightsPlan*”***means a plan of the Company providing forthe issuance by the Company to all holders of its Common Stock of rightsentitling the holders thereof to subscribe for or purchase shares of any classor series of capital stock of the Company which rights (i) are deemed tobe transferred with such shares of such Common Stock and (ii) are alsoissued in respect of future issuances of such Common Stock, in each case untilthe occurrence of a specified event or events.

 

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

 

*“*SecuritiesAct*”* meansthe Securities Act of 1933 or any successor statute thereto, in each case asamended from time to time.

 

*“*SecuritiesRegister*”*and “*Securities Registrar**”*havethe respective meanings specified in Section 3.5.

 

*“*SeniorDebt*”*meansthe principal of and any premium and interest on (including interest accruingon or after the filing of any petition in bankruptcy or for reorganizationrelating to the Company, whether or not such claim for post-petition interestis allowed in such proceeding) all Debt of the Company, whether incurred on orprior to the date of this Indenture or thereafter 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,******thatSenior Debt shall not be deemed to include any other debt securities (andguarantees, if any, in respect of such debt securities) issued to any trustother than the Trust (or a trustee of any such trust), partnership or otherentity affiliated with the Company that is a financing vehicle of the Company(a “financing entity”) in connection with the issuance by such financing entityof equity securities or other securities pursuant to an instrument that ranks *pari passu* with or junior in right ofpayment to this Indenture********.****

 

*“*SpecialEvent*”*meansthe occurrence of an Investment Company Event or a Tax Event.

 

*“*SpecialRecord Date*”*forthe payment of any Defaulted Interest means a date fixed by the Trustee pursuantto Section 3.1.

 

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

 

*“*StatedMaturity*”* means June 30,2035.

 

*“*Subsidiary*”* meansa Person more than fifty percent (50%) of the outstanding voting stock or othervoting interests of which is owned, directly or indirectly, by the Company orby one or more other Subsidiaries, or by the Company and one or more otherSubsidiaries. For purposes of this definition, “*voting stock*” means stock that ordinarily has voting powerfor the election of directors, whether at all times or only so long as nosenior class of stock has such voting power by reason of any contingency.

 

*“*TaxEvent*”* meansthe receipt by the Company of an Opinion of Counsel experienced in such mattersto 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

 

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official administrativepronouncement (including any private letter ruling, technical advice memorandumor field service advice) or regulatory procedure, including any notice orannouncement of intent to adopt any such pronouncement or procedure (an “*Administrative Action*”), regardless ofwhether such judicial decision or Administrative Action is issued to or inconnection with a proceeding involving the Company or the Trust and whether ornot subject to review or appeal, which amendment, change, judicial decision orAdministrative Action is enacted, promulgated or announced, in each case, on orafter 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 *deminimis* amount of other taxes, duties or other governmental charges.

 

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

 

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

 

*“*Trustee*”*meansthe 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**”* shallmean or include each Person who is then a Trustee hereunder.

 

“*Trust Indenture Act**”***meansthe Trust Indenture Act of 1939, as amended and as in effect on the date as ofthis Indenture.

 

*“*TrustSecurities*”* hasthe meaning specified in the first recital of this Indenture.

 

SECTION 1.2.*  Compliance Certificate and Opinions*.

 

(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 thatin the opinion of such counsel all such conditions precedent (includingcovenants compliance with which 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)  a statement byeach individual signing such certificate or opinion that such individual hasread such covenant or condition and the definitions herein relating thereto;

 

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(ii)  a briefstatement as to the nature and scope of the examination or investigation uponwhich the statements or opinions of such individual contained in suchcertificate or opinion are based;

 

(iii)  a statementthat, in the opinion of such individual, he or she has made such examination orinvestigation 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)  a statement asto whether, in the opinion of such individual, such condition or covenant hasbeen complied with.

 

SECTION 1.3.*  Forms of Documents Delivered 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 mattersbe certified by, or covered by the opinion of, only one such Person, or thatthey be 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 and effect as if originally received in thecorrected form and, irrespective of the date or dates of the actual executionand/or delivery thereof, such substitute document or instrument shall be deemedto have been executed and/or delivered as of the date or dates required withrespect to the document or instrument for which it is substituted.  Without limiting the generality of theforegoing, any Securities issued under the authority of such defective documentor instrument shall nevertheless be the valid obligations of the Companyentitled to the benefits of this Indenture equally and ratably with all otherOutstanding Securities.

 

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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 Holders signing such instrument orinstruments. Proof of execution of any such instrument or of a writingappointing any such agent shall be sufficient for any purpose of this Indentureand conclusive in favor of the Trustee and the Company, if made in the mannerprovided 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 such instrumentor writing acknowledged to him or her the execution thereof. Where suchexecution is by a Person acting in other than his or her individual capacity,such certificate or affidavit shall also constitute sufficient proof of his orher authority.  The fact and date of theexecution by any Person of any such instrument or writing, or the authority ofthe Person executing the same, may also be proved in any other manner that theTrustee or the Company, as the case may be, deems sufficient and in accordance withsuch 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.

 

(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 hereunderunless taken on or prior to the applicable Expiration Date (as defined in Section 1.4(h))by Holders of the requisite principal amount of Outstanding Securities on suchrecord date.  Nothing in this paragraphshall be construed to prevent the Company from setting a

 

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new record datefor any 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 any record date is setpursuant to this paragraph, the Company, at its own expense, shall cause noticeof such record date, the proposed action by Holders and the applicableExpiration Date to be given to the Trustee in writing and to each Holder ofSecurities 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 Securitieson such 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 record date is setpursuant to this paragraph, the Trustee, at the Company’s expense, shall causenotice of such record date, the proposed action by Holders and the applicableExpiration Date to be given to the Company in writing and to each Holder ofSecurities 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**”***andfrom time to time may change the Expiration Date to any earlier or later day; *provided**,* thatno such change shall be effective unless notice of the proposed new ExpirationDate is given to the other party hereto in writing, and to each Holder ofSecurities in the manner set forth in Section 1.6, on or prior tothe existing Expiration Date. If an Expiration Date is not designated withrespect to any record date set pursuant to this Section 1.4, theparty hereto that set such record date shall be deemed to have initiallydesignated the ninetieth (90th) day after such record date as theExpiration Date with respect thereto, subject to its right to change theExpiration Date as provided in this paragraph. Notwithstanding the foregoing,no Expiration Date shall be later than the one hundred eightieth (180th)day after the applicable record date.

 

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

 

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

 

(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

 

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(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 52ndStreet, New York, NY 10019, Attention: Larry P. Medvinsky, or at any other address previously furnished inwriting to the Trustee by the Company.

 

SECTION 1.6.*  Notice to Holders; Waiver*.

 

Where this Indenture provides for notice to Holders ofany event, such notice shall be sufficiently given (unless otherwise hereinexpressly provided) if in writing and mailed, first class, postage prepaid, toeach Holder affected by such event to the address of such Holder as it appearsin the Securities Register, not later than the latest date, if any, and notearlier than the earliest date, if any, prescribed for the giving of suchnotice. If, by reason of the suspension of or irregularities in regular mailservice or for any other reason, it shall be impossible or impracticable tomail 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 and Table of Contents*.

 

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

 

SECTION 1.8.*  Successors and Assigns*.

 

This Indenture shall be binding upon and shall inureto the benefit of any successor to the Company and the Trustee, including anysuccessor by operation of law.  Except inconnection with a transaction involving the Company that is permitted under Article VIIIand pursuant to which the assignee agrees in writing to perform the Company’sobligations hereunder, the 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.

 

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SECTION 1.10.*  Benefits of Indenture*.

 

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

 

SECTION 1.11.*  Governing Law*.

 

**This Indenture and the rights and obligations of eachof the Holders, the Company and the Trustee shall be construed and enforced inaccordance with and governed by the laws of the State of New York withoutreference to its conflict of laws provisions (other than Section 5-1401 ofthe General Obligations Law).**

 

SECTION 1.12.  Submission to Jurisdiction.

 

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

 

SECTION 1.13.*  Non-Business Days*.

 

If any Interest Payment Date, Redemption Date orStated 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 Date or Redemption Date or at the Stated Maturity.

 

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ARTICLE II

 

SECURITY FORMS

 

SECTION 2.1.*  Form of Security*.

 

Any Security issuedhereunder shall be in substantially the following form:

 

**GKK CAPITAL LP**

** **

**Floating Rate Junior Subordinated Note due 2035**

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

 

GKK Capital LP, alimited partnership organized and existing under the laws of Delaware (hereinafter called the “*Company**,”* whichterm includes any successor Person under the Indenture hereinafter referredto), for value received, hereby promises to pay to JPMorgan Chase Bank,National Association, not in its individual capacity, but solely as PropertyTrustee for Gramercy Capital Trust I, or registered assigns, the principal sumof Fifty One Million Five Hundred FiftyThousand Dollars ($51,550,000) **[*if the Security is a Global Security, then insert—* or suchother principal amount represented hereby as may be set forth in the records ofthe Securities Registrar hereinafter referred to in accordance with theIndenture]** on June 30,2035.  The Company further promises topay interest on said principal sum from May 20, 2005, or from the mostrecent Interest Payment Date to which interest has been paid or duly providedfor, quarterly (subject todeferral as set forth herein) in arrears on March 30, June 30, September 30 and December 30of each year, commencing September 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 7.57% perannum through the interest payment date in June 2015 (“Fixed RatePeriod”) and thereafter at****avariable rate equal to LIBOR plus 3.00% per annum, together with Additional TaxSums, if any, as provided in Section 10.5 of the Indenture, untilthe principal hereof is paid or duly provided for or made available forpayment; *provided*,*further*, that any overdueprincipal, premium, if any, or Additional Tax Sums and any overdue installmentof interest shall bear Additional Interest at a fixed rate equal to 7.57% through the interest payment date in June 2015and thereafter at a variable rate equal to LIBOR plus 3.00% per annum(to the extent that the payment of such interest shall be legally enforceable),compounded quarterly, from thedates such amounts are due until they are paid or made available for payment,and such interest shall be payable on demand.

 

During the Fixed Rate Period, the amount of interestpayable 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-daymonths.  Upon expiration of the FixedRate Period, the amount of interest payable for any Interest Payment Periodwill be computed on the basis of a 360-day year and the actual number of dayselapsed in the relevant interest period.** **The interest so payable, andpunctually paid or

 

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duly provided for, on anyInterest Payment Date shall, as provided in the Indenture, be paid to thePerson in whose name this Security (or one or more Predecessor Securities) isregistered at the close of business on the Regular Record Date for suchinterest installment.  Any such interestnot so punctually paid or duly provided for shall forthwith cease to be payableto the Holder on such Regular Record Date and may either be paid to the Personin whose name this Security (or one or more Predecessor Securities) isregistered at the close of business on a Special Record Date for the payment ofsuch Defaulted Interest to be fixed by the Trustee, notice whereof shall begiven to Holders of Securities not less than ten (10) days prior to such SpecialRecord Date, or be paid at any time in any other lawful manner not inconsistentwith the requirements of any securities exchange on which the Securities may belisted, and upon such notice as may be required by such exchange, all as morefully provided in the Indenture.

 

So long as no Event of Default has occurred and iscontinuing, the Company shall have the right, at any time and from time to timeduring the term of this Security, to defer the payment of interest on thisSecurity for a period of up to four (4) **c**onsecutive**quarterly** interestpayment periods (each such period, an “*Extension Period**”*),during which Extension Period(s), no interest shall be due and payable (exceptany Additional 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.  Priorto the termination of any such Extension Period, the Company may further deferthe payment of interest; *provided*, that (i) all such previous and furtherextensions comprising such Extension Period do 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 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 Extension Period does not exceed****four(4) quarterly interest payment periods, (ii) no Extension Periodshall end on a date other than an Interest Payment Date and (iii) no ExtensionPeriod shall extend beyond the Stated Maturity of the principal of thisSecurity.  The Company shall give theHolder of this Security and the Trustee written notice of its election to beginany 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 shallnot (i) declare or pay any dividends or distributions on, or redeem,purchase, acquire or make a liquidation payment with respect to, any of theCompany’s capital stock or (ii) make any payment of principal of or anyinterest or premium, if any, on or repay, repurchase or redeem any debtsecurities of the Company that rank *pari passu* in all respects withor junior in interest to this Security (other than (a) repurchases,redemptions or other acquisitions of shares of capital stock 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 consultants, (2) a dividend reinvestment or stockholder stockpurchase plan and (3) the issuance of capital stock of the Company (orsecurities convertible into or exercisable for such capital stock) asconsideration in an acquisition transaction entered into prior to theapplicable Extension Period, (b) as a result of an exchange or conversionof any class or series of the Company’s capital stock (or any capital

 

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stock of a Subsidiary ofthe Company) for any class or series of the Company’s capital stock or of anyclass or series of the Company’s indebtedness for any class or series of theCompany’s capital stock, (c) the purchase of fractional interests inshares of the Company’s capital stock pursuant to the conversion or exchangeprovisions of such capital stock or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any Rights Plan, the issuance ofrights, stock or other property under any Rights Plan, or the redemption orrepurchase of rights pursuant thereto or (e) any dividend in the form ofstock, warrants, options or other rights where the dividend stock or the stockissuable upon exercise of such warrants, options or other rights is the samestock as that on which the dividend is being paid or ranks *pari passu*with or junior to such stock).

 

Payment of principal of, premium, if any, and intereston this Security shall be made in such coin or currency of the United States ofAmerica as at the time of payment is legal tender for payment of public andprivate debts.  Payments of principal,premium, if any, and interest due at the Maturity of this Security shall bemade at the *Place of Payment*upon surrender of such Securities to the Paying Agent, and payments of interestshall be made, subject to such surrender where applicable, by wire transfer atsuch place and to such account at a banking institution in the United States asmay be designated in writing to the Paying Agent at least ten (10) BusinessDays prior to the date for payment by the Person entitled thereto unless properwritten transfer instructions have not been received by the relevant recorddate, in which case such payments shall be made by check mailed to the addressof such Person as such address shall appear in the Security Register.  Notwithstanding the foregoing, so long as theHolder of this Security is the Property Trustee, the payment of the principalof (and premium, if any) and interest (including any overdue installment ofinterest and Additional Tax Sums, if any) on this Security will be made at suchplace and to such account as may be designated by the Property Trustee.

 

The indebtedness evidenced by this Security is, to theextent provided in the Indenture, subordinate and junior in right of payment tothe 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 hereon hasbeen executed by the Trustee by manual signature, this Security shall not beentitled to any benefit under the Indenture or be valid or obligatory for anypurpose.

 

**[FORM OFREVERSE OF SECURITY]**

 

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

 

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

 

All terms used in this Security that are defined inthe Indenture or in the **Amended andRestated** Trust Agreement, dated as of May 20, 2005 (asmodified, amended or supplemented from time to time, the “*Trust Agreement**”*),relating to the **Gramercy******Capital Trust I (the “*Trust**”*) amongthe Company, as Depositor, the Trustees named therein and the Holders from timeto time of the Trust Securities issued pursuant thereto, shall have themeanings assigned to them in the Indenture or the Trust Agreement, as the casemay be.

 

The Company may, on anyInterest Payment Date, at its option, upon not less than thirty (30) days’ normore than sixty (60) days’ written notice to the Holders of the Securities(unless a shorter notice period shall be satisfactory to the Trustee) on orafter June 30, 2010 and subject to the terms and conditions of Article XIof the Indenture, redeem this Security in whole at any time or in part fromtime to time at a Redemption Price equal to one hundred percent (100%) of theprincipal amount hereof, together, in the case of any such redemption, withaccrued interest, including any Additional Interest, through but excluding thedate fixed as the Redemption Date.

 

In addition, upon the occurrence and during thecontinuation of a Special Event, the Company may, at its option, upon not lessthan thirty (30) days’ nor more than sixty (60) days’ written notice to theHolders of the Securities (unless a shorter notice period shall be satisfactoryto the Trustee), redeem this Security, in whole but not in part, subject to theterms and conditions of Article XI of the Indenture at a RedemptionPrice equal to one hundred seven and one half percent (107.5%) 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 the event of redemption of this Security in partonly, a new Security or Securities for the unredeemed portion hereof will beissued in the name of the Holder hereof upon the cancellation hereof.  If less than all the Securities are to beredeemed, the particular Securities to be redeemed shall be selected not morethan sixty (60) days prior to the Redemption Date by the Trustee from theOutstanding Securities not previously called for redemption, by such method asthe 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 certain exceptions astherein provided, the Company and the Trustee at any time to enter into asupplemental indenture or indentures for the purpose of modifying in any mannerthe rights and obligations of the Company and of the Holders of the Securities,with the consent of the Holders of not less than a majority in principal amountof the Outstanding Securities. The Indenture also contains provisionspermitting Holders of specified percentages in principal amount of theSecurities, on behalf of the Holders of all Securities, to waive compliance bythe Company with certain provisions of the Indenture and certain past defaultsunder the Indenture and their consequences. Any such consent or waiver by theHolder of this Security shall be conclusive and binding upon such Holder andupon all future Holders of this Security and of any Security issued upon theregistration 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.

 

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

 

As provided in the Indenture and subject to certainlimitations therein set forth, the transfer of this Security is restricted totransfers to “Qualified Purchasers” (as such term is defined in the InvestmentCompany Act of 1940, as amended, and is registrable in the Securities Register,upon surrender of this Security for registration of transfer at the office oragency of the Company maintained for such purpose, duly endorsed by, oraccompanied by a written instrument of transfer in form satisfactory to theCompany and the Securities Registrar and duly executed by, the Holder hereof orsuch Holder’s attorney duly authorized in writing, and thereupon one or morenew Securities, of like tenor, of authorized denominations and for the sameaggregate principal amount, will be issued to the designated transferee ortransferees.

 

The Securities are issuable only in registered formwithout coupons in minimum denominations of $100,000 and any integral multipleof $1,000 in excess thereof. As provided in the Indenture and subject tocertain limitations therein set forth, Securities are exchangeable for a likeaggregate principal amount of Securities and of like tenor of a differentauthorized denomination, as requested by the Holder surrendering the same.

 

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 the Companyor the Trustee may treat the Person in whose name this Security is registeredas the owner hereof for all purposes, whether or not this Security be overdue,and neither the Company, the Trustee nor any such agent shall be affected bynotice to the contrary.

 

The Company and, by its acceptance of this Security ora beneficial interest herein, the Holder of, and any Person that acquires abeneficial interest in, this Security agree that, for United States federal,state and local tax purposes, it is intended that this Security constituteindebtedness.

 

**This Security shall be construed and enforced inaccordance with and governed by 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 caused thisinstrument to be duly executed on this        dayof                   ,20    .

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

 

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SECTION 2.2.*  Restricted Legend*.

 

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

 

“**[IF THISSECURITY IS A GLOBAL SECURITY INSERT:**THIS SECURITY IS A GLOBALSECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND ISREGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OFDTC.  THIS SECURITY IS EXCHANGEABLE FORSECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEEONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFEROF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO ANOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BEREGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

 

UNLESSTHIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUEROR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANYSECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCHOTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENTHEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTEDBY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USEHEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THEREGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.**]**

 

THESECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN ATRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOTBE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATIONOR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OFTHE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.

 

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

 

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

 

THEHOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF ORTHEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEEBENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TOTITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (*“ERISA”*), OR SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE *“CODE”*)(EACH A *“PLAN”*), OR AN ENTITYWHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’SINVESTMENT IN THE 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.”

 

(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 satisfactory evidence, the Company shall executeand deliver to the Trustee, and the Trustee shall deliver, upon receipt of aCompany Order directing it to do so, a Security that does not bear the legend.

 

SECTION 2.3.*  Form of Trustee’s Certificate ofAuthentication*.

 

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

 

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

 

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| 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 officers executingsuch Securities may determine, as evidenced by their execution of suchSecurities.

 

(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 Issue Date shallbe in definitive form.  The definitiveSecurities shall be printed, lithographed or engraved, or produced by anycombination of these methods, if required by any securities exchange on whichthe Securities may be listed, on a steel engraved border or steel engravedborders or may be produced in any other manner permitted by the rules ofany securities exchange on which the Securities may be listed, all asdetermined by the officers executing such Securities, as evidenced by theirexecution 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 rate equal to 7.57% per annum throughthe interest payment date in June 2015 and thereafter at a variablerate of LIBOR plus 3.00% per annum until paid or duly provided for, suchinterest to accrue from the Original Issue Date or from the most recentInterest Payment Date to which interest has been paid or duly provided for, andany overdue principal, premium, if any, or

 

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Additional TaxSums and any overdue installment of interest shall bear Additional Interest atthe rate equal to a fixed rate equal to7.57% per annum through the interest payment date in June 2015 andthereafter at a variable****rateof LIBOR plus 3.00%****per annum,compounded quarterly from thedates such amounts are due until they are paid or funds for the payment thereofare 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) is registeredat the close of business on the Regular Record Date for such interest, exceptthat interest and any Additional Interest payable on the Stated Maturity (orany date of principal repayment upon early maturity) of the principal of aSecurity or on a Redemption Date shall be paid to the Person to whom principalis paid. The initial payment of interest on any Security that is issued betweena Regular Record Date and the related Interest Payment Date shall be payable asprovided 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**”*) shallforthwith cease to be payable to the registered Holder on the relevant RegularRecord Date by virtue of having been such Holder, and such Defaulted Interestmay be paid by the Company, at its election in each case, as provided inparagraph (i) or (ii) below:

 

(i)  The Company mayelect to make payment of any Defaulted Interest to the Persons in whose namesthe Securities (or their respective Predecessor Securities) are registered atthe close of business on a Special Record Date for the payment of suchDefaulted Interest (a “*Special Record Date**”*), which shall be fixed in the followingmanner.  At least thirty (30) days priorto the date of the proposed payment, the Company shall notify the Trustee inwriting of the amount of Defaulted Interest proposed to be paid on eachSecurity and the date of the proposed payment, and at the same time the Companyshall deposit with the Trustee an amount of money equal to the aggregate amountproposed to be paid in respect of such Defaulted Interest or shall makearrangements satisfactory to the Trustee for such deposit prior to the date ofthe proposed payment, such money when deposited to be held in trust for thebenefit of the Persons 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 proposedpayment of such Defaulted Interest and the Special Record Date therefor to bemailed, first class, postage prepaid, to each Holder of a Security at the addressof such 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 such Defaulted Interest and theSpecial Record Date therefor having been so mailed, such Defaulted Interestshall be paid to the Persons in whose names the Securities (or their respectivePredecessor Securities) are registered on such Special Record Date; or

 

(ii)  The Companymay make payment of any Defaulted Interest in any other lawful manner notinconsistent with the requirements of any securities exchange or

 

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automated quotation system on which the Securities maybe listed, traded or quoted and, upon such notice as may be required by suchexchange or automated quotation system (or by the Trustee if the Securities arenot listed), if, after notice given by the Company to the Trustee of theproposed payment pursuant to this clause, such payment shall be deemedpracticable 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 FixedRate Period, the amount of interest payable for any Interest Payment Periodwill be computed on the basis of a 360-day year and the actual number of dayselapsed 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 of principal, premium, if any, andinterest due at the Maturity of such Securities shall be made at the Place ofPayment upon surrender of such Securities to the Paying Agent and payments ofinterest shall be made subject to such surrender where applicable, by wiretransfer at such place and to such account at a banking institution in theUnited States as may be designated in writing to the Paying Agent at least ten (10) BusinessDays prior to the date for payment by the Person entitled thereto unless properwritten transfer instructions have not been received by the relevant recorddate, in which case such payments shall be made by check mailed to the addressof such Person as such address shall appear in the Security Register.  Notwithstanding the foregoing, so long as theholder of this Security is the Property Trustee, the payment of the principalof (and premium, if any) and interest (including any overdue installment ofinterest and Additional Tax Sums, if any) on this Security will be made at suchplace and to such account as may be designated by the Property Trustee.

 

(f)                                    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 form withoutcoupons and shall be issuable in minimum denominations of $100,000 and anyintegral multiple of $1,000 in excess thereof.

 

SECTION 3.3.*  Execution, Authentication, Delivery andDating*.

 

(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 Million Five Hundred Fifty ThousandDollars ($51,550,000) executedby the Company to the Trustee for authentication, together with a Company Orderfor the authentication and delivery of such Securities, and the Trustee inaccordance with the Company Order shall authenticate and deliver suchSecurities. In

 

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authenticatingsuch Securities, and accepting the additional responsibilities under thisIndenture in relation to such Securities, the Trustee shall be entitled toreceive, and shall be fully protected in relying upon:

 

(i)  a copy of anyBoard Resolution relating thereto; and

 

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

 

(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 shallconstitute a single Security for all purposes of this Indenture.

 

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(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 of any event specified inclause (i), (ii), (iii) or (iv) above, the Trustee shall notify theDepositary and instruct the Depositary to notify all owners of beneficialinterests in such Global Security of the occurrence of such event and of theavailability of Securities to such owners of beneficial interests requestingthe same.  The Trustee may conclusivelyrely, and be protected in relying, upon the written identification of theowners of beneficial interests furnished by the Depositary, and shall not beliable for any delay resulting from a delay by the Depositary.  Upon the issuance of such Securities and theregistration in the Securities Register of such Securities in the names of the Holdersof the beneficial interests therein, the Trustees shall recognize such holdersof 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, whereuponthe Trustee, in accordance with the Applicable Depositary Procedures, shallinstruct 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 the

 

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Securitiesrepresented thereby (or such other accounts as they may direct).  Securities distributed to holders ofPreferred Securities other than Book-Entry Preferred Securities upon thedissolution of the Trust shall not be issued in the form of a Global Securityor any other form intended to facilitate book-entry trading in beneficialinterests in such Securities.

 

(f)                                    TheDepositary or its nominee, as the registered owner of a Global Security, shall bethe 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 ofprincipal and interest thereon and the giving of instructions or directions byowners of beneficial interests therein and the giving of notices) as the soleHolder of the Security and shall have no obligations to the 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 and Exchange Generally*.

 

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

 

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designatedtransferee or transferees, one or more new Securities of any authorizeddenominations of like tenor 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 instrument of transfer in form satisfactory to the Company and theSecurities Registrar, duly executed by the Holder thereof or such Holder’sattorney duly authorized in writing.

 

(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 Company shall give prompt written noticeto the Trustee and to the Holders of any change in the location of any suchoffice 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, thatif a certificate is specifically required by the express terms of this Section 3.5to be delivered to the Trustee or the Securities Registrar by a Holder ortransferee of a Security, the Trustee and the Securities Registrar shall beunder a duty to receive and examine the same to determine whether or not thecertificate substantially conforms on its

 

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face to therequirements of this Indenture and shall promptly notify the party deliveringthe same if such certificate does not comply with such terms

 

SECTION 3.6.*  Mutilated, Destroyed, Lost and StolenSecurities*.

 

(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 Companyshall execute 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 the replacementor payment of mutilated, destroyed, lost or stolen Securities.

 

SECTION 3.7.*  Persons Deemed Owners*.

 

The Company, the Trustee and any agent of the Companyor the Trustee shall treat the Person in whose name any Security is registeredas the owner of such Security for the purpose of receiving payment of principalof and any interest on such Security and for all other purposes whatsoever, andneither the Company, the Trustee nor any agent of the Company or the Trusteeshall be affected by notice to the contrary.

 

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SECTION 3.8.*  Cancellation*.

 

All Securities surrendered for payment, redemption,transfer or exchange shall, if surrendered to any Person other than theTrustee, be delivered to the Trustee, and any such Securities and Securitiessurrendered directly to the Trustee for any such purpose shall be promptlycanceled 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.

 

SECTION 3.9.*Deferrals ofInterest Payment 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** interestpayment periods (each such period, an “*Extension Period**”**)*, during which Extension Period(s), theCompany 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).  NoExtension Period shall end on a date other than an Interest Payment Date and noExtension Period shall extend beyond the Stated Maturity of the principal ofthe Securities.  No interest shall be dueand payable during an Extension Period, except at the end thereof.  At the end of any such Extension Period, theCompany shall pay all interest 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 furtherextensions comprising such Extension Period do not exceed **four (4) quarterly**interest 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.  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) 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.  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).

 

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SECTION 3.10.*  Reserved*.

 

SECTION 3.11.*  Agreed Tax Treatment*.

 

Each Security issued hereunder shall provide that theCompany and, by its acceptance or acquisition of a Security or a beneficialinterest therein, the Holder of, and any Person that acquires a direct orindirect beneficial interest in, such Security, intend and agree to treat suchSecurity as indebtedness of the Company for United States Federal, state andlocal tax purposes and to treat the Preferred Securities (including but notlimited to all payments and proceeds with respect to the Preferred Securities)as an undivided beneficial ownership interest in the Securities (and any otherTrust property) (and payments and proceeds therefrom, respectively) for UnitedStates Federal, state and local tax purposes. The provisions of this Indenture shall be interpreted to further thisintention 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 materials may statethat no representation is made as to the correctness of such numbers either asprinted on the Securities or as contained in any notice of redemption or othermaterials and that reliance may be placed only on the other identificationnumbers printed on the Securities, and any such redemption shall not beaffected by any defect in or omission of such numbers.

 

ARTICLE IV

 

SATISFACTION AND DISCHARGE

 

SECTION 4.1.*  Satisfaction and Discharge of Indenture*.

 

This Indenture shall, upon Company Request, cease tobe of further effect (except as to any surviving rights of registration oftransfer or exchange of Securities herein expressly provided for and asotherwise provided in this Section 4.1) and the Trustee, on demandof and at the expense of the Company, shall execute proper instrumentsacknowledging satisfaction and discharge of this Indenture, when

 

(a)                                  either

 

(i) all Securitiestheretofore authenticated and delivered (other than (A) Securities thathave been mutilated, destroyed, lost or stolen and that have been replaced orpaid as provided in Section 3.6 and (B) Securities for whosepayment money has theretofore been deposited in trust or segregated and held intrust by the Company and thereafter repaid to the Company or discharged fromsuch trust as provided in Section 10.2) have been delivered to theTrustee for cancellation; or

 

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

 

(A)                              havebecome due and payable, or

 

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(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 theCompany, in the case of subclause (ii)(A), (B) or (C) above, hasdeposited or caused to be deposited with the Trustee as trust funds in trustfor such purpose (x) an amount in the currency or currencies in which theSecurities are payable, (y) Government Obligations which through the scheduledpayment of principal and interest in respect thereof in accordance with theirterms will provide, not later than the due date of any payment, money in anamount or (z) a combination thereof, in each case sufficient, in the opinion ofa nationally recognized firm of independent public accountants expressed in awritten certification thereof delivered to the Trustee, to pay and dischargethe entire indebtedness on such Securities not theretofore delivered to theTrustee for cancellation, for principal and any premium and interest (includingany Additional Interest) to the date of such deposit (in the case of Securitiesthat have become due and payable) or to the Stated Maturity (or any date ofprincipal repayment upon early maturity) or Redemption Date, as the case maybe;

 

(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 thisIndenture, the obligations of the Company to the Trustee under Section 6.6,the obligations 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.

 

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ARTICLE V

 

REMEDIES

 

SECTION 5.1.*  Events of Default*.

 

*“*Eventof Default*”* means,wherever used herein with respect to the Securities, any one of the followingevents (whatever the reason for such Event of Default and whether it shall bevoluntary or involuntary or be effected by operation of law or pursuant to anyjudgment, decree or order of any court or any order, rule or regulation ofany 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

 

(c)                                  defaultin the performance, or breach, of any covenant or warranty in any materialrespect of the Company in this Indenture or the Purchase Agreement 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 substantialpart of 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

 

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(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, consolidationsor amalgamations, each as and to the extent permitted by the Trust Agreement.

 

SECTION 5.2.*  Acceleration of Maturity; Rescission andAnnulment*.

 

(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 than twentyfive percent (25%) in principal amount of the Outstanding Securities fail todeclare the principal of all the Outstanding Securities to be immediately dueand payable, the holders of at least twenty five percent (25%) in aggregateLiquidation Amount of the Preferred Securities then outstanding shall have theright to make such declaration by a notice in writing to the Property Trustee, theCompany and the Trustee; and upon any such declaration the principal amount ofand the accrued interest (including any Additional Interest) on all theSecurities shall become immediately 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)  the Company haspaid 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)  all Events ofDefault with respect to Securities, other than the non-payment of the principalof Securities that has become due solely by such acceleration, have been curedor waived as provided in Section 5.13;

 

*provided*, that if the Holdersof such Securities fail to annul such declaration and waive such default, theholders of not less than a majority in aggregate Liquidation Amount of thePreferred

 

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

 

SECTION 5.3.*  Collection of Indebtedness and Suits forEnforcement by Trustee*. 

 

(a)                                  TheCompany covenants that if:

 

(i)  default is madein 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)  default ismade in the payment of the principal of and any premium on any Security at theMaturity thereof,

 

the Company will, upon demand of the Trustee, pay tothe Trustee, for the benefit of the Holders of such Securities, the wholeamount then due and payable on such Securities for principal and any premiumand interest (including any Additional Interest) and, in addition thereto, allamounts owing the 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 File Proofs of Claim*.

 

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

 

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disbursements andadvances of the Trustee, its agents and counsel, and any other amounts owingthe Trustee, any predecessor Trustee and other Persons under Section 6.6.

 

SECTION 5.5.*  Trustee May Enforce Claim WithoutPossession of Securities*.

 

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

 

SECTION 5.6.*  Application of Money Collected*.

 

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

 

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

 

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

 

THIRD:  Subjectto Article XII, to the payment of the amounts then due and unpaidupon the Securities for principal and any premium and interest (including anyAdditional Interest) in respect of which or for the benefit of which such moneyhas been collected, ratably, without preference or priority of any kind,according to the amounts due and payable on the Securities for principal andany premium and interest (including any Additional Interest), respectively; and

 

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

 

SECTION 5.7.*  Limitation on Suits*.

 

Subject to Section 5.8, no Holder of anySecurities shall have any right to institute any proceeding, judicial orotherwise, with respect to this Indenture or for the appointment of a custodian,receiver, assignee, trustee, liquidator, sequestrator (or other similarofficial) 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;

 

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(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 moreof such Holders shall have any right in any manner whatever by virtue of, or byavailing itself of, any provision of this Indenture to affect, disturb orprejudice the rights of any other Holders of Securities, or to obtain or toseek to obtain priority or preference over any other of such Holders or toenforce any right under this Indenture, except in the manner herein providedand for the equal and ratable benefit of all such Holders.

 

SECTION 5.8.*  Unconditional Right of Holders to ReceivePrincipal, Premium*, if any,*and Interest; DirectAction by Holders of Preferred Securities*.

 

Notwithstanding any other provision in this Indenture,the Holder of any Security shall have the right, which is absolute andunconditional, to receive payment of the principal of and any premium on suchSecurity 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 aprincipal amount equal to the aggregate Liquidation Amount of the PreferredSecurities held by such holder.

 

SECTION 5.9.*  Restoration of Rights and Remedies*.

 

If the Trustee, any Holder or any holder of PreferredSecurities has instituted any proceeding to enforce any right or remedy underthis Indenture and such proceeding has been discontinued or abandoned for anyreason, or has been determined adversely to the Trustee, such Holder or suchholder of Preferred Securities, then and in every such case the Company, theTrustee, such Holders and such holder of Preferred Securities shall, subject toany determination in such proceeding, be restored severally and respectively totheir former positions hereunder, and thereafter all rights and remedies of theTrustee, such Holder and such holder of Preferred Securities shall continue asthough no such proceeding had been instituted.

 

SECTION 5.10.*  Rights and Remedies Cumulative*.

 

Except as otherwise provided in Section 3.6(f),no right or remedy herein conferred upon or reserved to the Trustee or 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.

 

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SECTION 5.11.*  Delay or Omission Not Waiver*.

 

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

 

SECTION 5.12.*  Control by Holders*.

 

The Holders of not less than a majority in aggregateprincipal amount of the Outstanding Securities (or, as the case may be, theholders 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)  in the paymentof the principal of or any premium or interest (including any AdditionalInterest) on any Outstanding Security (unless such Event of Default has beencured 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)  in respect ofa covenant or provision hereof that under Article IX cannot bemodified or amended without the consent of each Holder of any OutstandingSecurity.

 

(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.

 

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(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 purposeof this 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 each Holderof 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 assess reasonable costs, includingreasonable attorneys’ fees and expenses, against any party litigant in suchsuit, having due regard to the merits and good faith of the claims or defensesmade by such party litigant; but the provisions of this Section 5.14shall not apply to any suit instituted by the Trustee, to any suit institutedby any Holder, or group of Holders, holding in the aggregate more than tenpercent (10%) in aggregate principal amount of the Outstanding Securities, orto any suit instituted by any Holder for the enforcement of the payment of theprincipal of or any premium on the Security after the Stated Maturity or anyinterest (including any Additional Interest) on any Security after it is dueand payable.

 

SECTION 5.15.*  Waiver of Usury, Stay or Extension Laws*.

 

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

 

ARTICLE VI

 

THE TRUSTEE

 

SECTION 6.1.*  Corporate Trustee Required*.

 

There shall at all times be a Trustee hereunder withrespect to the Securities.  The Trusteeshall be a corporation organized and doing business under the laws of theUnited States or of any state thereof, authorized to exercise corporate trust powers,having a combined capital and surplus of at least $50,000,000, subject tosupervision or examination by Federal or state authority and having an officewithin the United States. If such corporation publishes reports of condition atleast annually, pursuant to law or to the requirements of such supervising orexamining 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 timethe Trustee shall cease to be eligible in

 

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

 

SECTION 6.2.*  Certain Duties and Responsibilities*.

 

Except during the continuance of an Event of Default:

 

(i)  the Trusteeundertakes to perform such duties and only such duties as are specifically setforth in this Indenture, and no implied covenants or obligations shall be readinto this Indenture against the Trustee; and

 

(ii)  in the absenceof bad faith on its part, the Trustee may conclusively rely, as to the truth ofthe statements and the correctness of the opinions expressed therein, uponcertificates or opinions furnished to the Trustee and conforming to therequirements 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 Trusteeshall be 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, the Trusteeshall, prior to the receipt of directions, if any, from the Holders of at leasta majority in aggregate principal amount of the Outstanding Securities (or, ifapplicable, from the holders of at least a majority in aggregate LiquidationAmount of Preferred Securities), exercise such of the rights and powers vestedin it by this Indenture, and use the same degree of care and skill in itsexercise, as a prudent person would exercise or use under the circumstances inthe 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 its rightsor powers, if it shall have reasonable grounds for believing that repayment ofsuch funds or adequate indemnity against such risk or liability is notreasonably assured to it. Whether or not therein expressly so provided, everyprovision of this Indenture relating to the conduct or affecting the liabilityof or affording protection to the Trustee shall be subject to the provisions ofthis Section 6.2.  To theextent that, at law or in equity, the Trustee has duties and liabilitiesrelating to the Holders, the Trustee shall not be liable to any Holder or anyholder of Preferred Securities for the Trustee’s good faith reliance on theprovisions 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)  the Trusteeshall 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;

 

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(ii)  the Trustee shallnot be liable with respect to any action taken or omitted to be taken by it ingood faith in accordance with the direction of the Holders of at least amajority in aggregate principal amount of the Outstanding Securities (or, asthe case may be, the holders of a majority in aggregate Liquidation Amount ofPreferred Securities) relating to the time, method and place of conducting anyproceeding for any remedy available to the Trustee under this Indenture; and

 

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

 

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

 

(i)  whenever areference is made herein to the dissolution, termination or liquidation of theTrust, 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)  the Trusteeshall not be charged with notice or knowledge that any Person is a holder ofPreferred Securities or Common Securities issued by the Trust or whether anygroup of holders of Preferred Securities constitutes any specified percentageof all outstanding Preferred Securities for any purpose under this Indenture,unless and until the Trustee is furnished with a list of holders by suchProperty 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 occurrence of anydefault actually known to the Trustee, the Trustee shall give the Holdersnotice of such default unless such default shall have been cured or waived; * provided**,*that except in the case of a default in the paymentof the principal of or any premium or interest on any Securities, the Trusteeshall be fully protected in withholding the notice if and so long as the boardof directors, the executive committee or a trust committee

 

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

 

SECTION 6.4.*  Certain Rights of Trustee*.

 

Subject to the provisions of Section 6.2:

 

(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 orpresented by 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 instructions from the Company withinten Business Days after it has delivered such notice or such reasonably shorterperiod of time set forth in such notice the Trustee may, but shall be under noduty to, take such action, or refrain from taking such action, as the Trusteeshall deem advisable and in the best interests of the Holders, in which eventthe Trustee shall have no liability except for its own negligence, bad faith orwillful 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 itagainst the costs, expenses (including reasonable attorneys’ fees and expenses)and liabilities that

 

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might be incurredby it in compliance with such request or direction, including reasonableadvances 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;

 

(g)                                 theTrustee may execute any of the trusts or powers hereunder or perform any dutieshereunder either directly or by or through agents, attorneys, custodians ornominees and the Trustee shall not be responsible for any misconduct ornegligence on the part of any such agent, attorney, custodian or nomineeappointed with due care 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 be underany obligation to take any action that is discretionary under the provisions ofthis 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.

 

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SECTION 6.5.*  May Hold Securities*.

 

The Trustee, any Authenticating Agent, any PayingAgent, any Securities Registrar or any other agent of the Company, in itsindividual or any other capacity, may become the owner or pledgee of Securitiesand may otherwise deal with the Company with the same rights it would have ifit were not Trustee, Authenticating Agent, Paying Agent, Securities Registraror such other agent.

 

SECTION 6.6.*  Compensation; Reimbursement; Indemnity*.

 

(a)                                  TheCompany agrees:

 

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

 

(ii)  to reimbursethe Trustee upon its request for all reasonable expenses, disbursements andadvances incurred or made by the Trustee in accordance with any provision ofthis Indenture (including the reasonable compensation and the expenses anddisbursements of its agents and counsel), except any such expense, disbursementor advance as may be attributable to its negligence, bad faith or willfulmisconduct; and

 

(iii)  to thefullest extent permitted by applicable law, to indemnify the Trustee and itsAffiliates, 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 alien prior 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.

 

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(e)                                  Inno event shall the Trustee be liable for any failure or delay in theperformance of its obligations hereunder because of circumstances beyond its control,including, but not limited to, acts of God, flood, war (whether declared orundeclared), terrorism, fire, riot, embargo, government action, including anylaws, ordinances, regulations, governmental action or the like which delay,restrict or prohibit the providing of the services contemplated by thisIndenture.

 

SECTION 6.7.*  Resignation and Removal; Appointment ofSuccessor*.

 

(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 shallinclude the name of the successor Trustee and the address of its CorporateTrust Office.

 

SECTION 6.8.*  Acceptance of Appointment by 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

 

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the retiringTrustee shall become effective and such successor Trustee, without any furtheract, deed or conveyance, shall become vested with all the rights, powers,trusts and duties of the retiring Trustee; but, on the request of the Companyor the successor Trustee, such retiring Trustee shall, upon payment of itscharges, execute and deliver an instrument transferring to such successorTrustee all the rights, powers and trusts of the retiring Trustee and shallduly assign, transfer and deliver to such successor Trustee all property andmoney held by such retiring Trustee hereunder.

 

(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 suchacceptance such successor Trustee shall be qualified and eligible under this Article VI.

 

SECTION 6.9.*  Merger, Conversion, Consolidation orSuccession to Business*.

 

Any Person into which the Trustee may be merged or convertedor with which it may be consolidated, or any Person resulting from any merger,conversion or consolidation to which the Trustee shall be a party, or anyPerson succeeding to all or substantially all of the corporate trust businessof the Trustee, shall be the successor of the Trustee hereunder, without theexecution or filing of any paper or any further act on the part of any of theparties 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 for Recitals or Issuance ofSecurities*.

 

The recitals contained herein and in the Securities,except the Trustee’s certificates of authentication, shall be taken as thestatements of the Company, and neither the Trustee nor any Authenticating Agentassumes any responsibility for their correctness. The Trustee makes norepresentations as to the validity or sufficiency of this Indenture or of theSecurities. Neither the Trustee nor any Authenticating Agent shall beaccountable for the use or application by the Company of the Securities or theproceeds thereof.

 

SECTION 6.11.*  Appointment of Authenticating 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

 

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delivery ofSecurities by the Trustee or the Trustee’s certificate of authentication, suchreference shall be deemed to include authentication and delivery on behalf ofthe Trustee by an Authenticating Agent. Each Authenticating Agent shall beacceptable to the Company and shall at all times be a corporation organized anddoing business under the laws of the United States of America, or of any Stateor Territory thereof or the District of Columbia, authorized under such laws toact as Authenticating Agent, having a combined capital and surplus of not lessthan $50,000,000 and subject to supervision or examination by Federal or stateauthority. If such Authenticating Agent publishes reports of condition at leastannually pursuant to law or to the requirements of said supervising orexamining authority, then for the purposes of this Section 6.11 thecombined capital and surplus of such Authenticating Agent shall be deemed to beits combined capital and surplus as set forth in its most recent report ofcondition so published. If at any time an Authenticating Agent shall cease tobe eligible in accordance with the provisions of this Section 6.11,such Authenticating Agent shall resign immediately in the manner and with theeffect 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 theSecurities referred to in the within mentioned Indenture.

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

 

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ARTICLE VII

 

HOLDER’S LISTS AND REPORTS BY COMPANY

 

SECTION 7.1.*  Company to Furnish Trustee Names andAddresses of Holders*.

 

The Company will furnish or cause to be furnished tothe 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 thepossession or control of the Company and has not otherwise been received by theTrustee in its capacity as Securities Registrar.

 

SECTION 7.2.*  Preservation of Information, Communicationsto 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.

 

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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.

 

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

 

(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 shall notifythe Trustee in the manner prescribed herein of each such annual and quarterlyfiling.  The Trustee is hereby authorizedand directed to access the EDGAR system for purposes of retrieving thefinancial information so filed.  Compliancewith the foregoing shall constitute delivery by the Company of its financialstatements to the Trustee in compliance with the provisions of Section 314(a) ofthe Trust Indenture Act, if applicable. The Trustee shall have no duty to search for or obtain any electronic orother filings that the Company makes with the Commission, regardless of whethersuch filings 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.  The Trustee’s receipt of such reports,information and documents shall not constitute notice to it of the contentthereof or any matter determinable from the content thereof, including theCompany’s compliance with any of its covenants hereunder, as to which theTrustee is entitled to rely upon Officers’ Certificates.

 

ARTICLE VIII

 

CONSOLIDATION, MERGER, CONVEYANCE,TRANSFER OR LEASE

 

SECTION 8.1.*  Company May Consolidate, Etc., Only onCertain Terms*.

 

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

 

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(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 ismerged or the Person that acquires by conveyance or transfer, or that leases,the properties and assets of the Company substantially as an entirety shall bean entity organized and existing under the laws of the United States of Americaor any State or Territory thereof or the District of Columbia and shallexpressly assume, by an indenture supplemental hereto, executed and deliveredto the Trustee, in form reasonably satisfactory to the Trustee, the due andpunctual payment of the principal of and any premium and interest (includingany Additional Interest) on all the Securities and the performance of everycovenant of this Indenture on the part of the Company to be performed orobserved;

 

(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 such transaction,any such supplemental indenture comply with this Article VIII andthat all conditions precedent herein provided for relating to such transactionhave been complied with; and the Trustee may rely upon such Officers’Certificate and Opinion of Counsel as conclusive evidence that such transactioncomplies with this Section 8.1.

 

SECTION 8.2.*  Successor Company Substituted*.

 

(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 theCompany to the Trustee for authentication, and any Securities that suchsuccessor Person thereafter shall cause to be executed and delivered to theTrustee on its behalf. All the Securities so issued shall in all respects havethe same legal rank and benefit under this Indenture as the Securitiestheretofore or thereafter issued in accordance with the terms of thisIndenture.

 

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(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.

 

ARTICLE IX

 

SUPPLEMENTAL INDENTURES

 

SECTION 9.1.*  Supplemental Indentures without Consent ofHolders*.

 

Without the consent of any Holders, the Company, whenauthorized by a Board Resolution, and the Trustee, at any time and from time totime, may enter into one or more indentures supplemental hereto, in form reasonablysatisfactory to the Trustee, for any of the following 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 amend anyother 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) shall not adversely affect inany material respect the interests of any Holders or the holders of thePreferred 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 Indentures with Consent ofHolders*.

 

(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

 

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Indenture; *provided**,*thatno such supplemental indenture shall, without the consent of the Holder of eachOutstanding Security,

 

(i)  change theStated 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)  reduce thepercentage 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

 

(iii)  modify any ofthe provisions of this Section 9.2, Section 5.13 or Section 10.7,except to increase any percentage in aggregate principal amount of theOutstanding Securities, the consent of whose Holders is required for anyreason, or to provide that certain other provisions of this Indenture cannot bemodified or waived without the consent 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 Holderof each Outstanding Security is required for any amendment under thisIndenture, such amendment shall not be effective until the holder of eachOutstanding Preferred Security shall have consented to such amendment.

 

(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 Supplemental Indentures*.

 

In executing or accepting the additional trustscreated 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 execution thereof.

 

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SECTION 9.4.*  Effect of Supplemental Indentures*.

 

Upon the execution of any supplemental indenture underthis Article IX, this Indenture shall be modified in accordancetherewith, and such supplemental indenture shall form a part of this Indenturefor all purposes; and every Holder of Securities and every holder of PreferredSecurities theretofore or thereafter authenticated and delivered hereundershall be bound thereby.

 

SECTION 9.5.*  Reference in Securities to SupplementalIndentures*.

 

Securities authenticated and delivered after theexecution of any supplemental indenture pursuant to this Article IXmay, and shall if required by the Company, bear a notation in form approved bythe 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 the benefit ofthe Holders of the Securities that it will duly and punctually pay theprincipal of and any premium and interest (including any Additional Interest)on the Securities in accordance with the terms of the Securities and thisIndenture.  As of the date of thisIndenture, the Company represents that it has no present intention to exerciseits right under Section 3.9 todefer payments of interest on the Securities.

 

SECTION 10.2.*  Money for Security Payments to be Held inTrust*.

 

(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

 

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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 thewritten request of the Trustee, forthwith pay to the Trustee all sums held intrust by such Paying Agent 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 allliability of the Trustee or such Paying Agent with respect to such trust money,and all liability of the Company as trustee thereof, shall thereupon cease; *provided**,*thatthe 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 onehundred and twenty (120) days after the end of each fiscal year of the Companyending after the date hereof, an Officers’ Certificate covering the precedingcalendar year, stating whether or not to the knowledge of the signers thereofthe Company is in default in the performance or observance of any of the terms,provisions and conditions of this Indenture (without regard to any period ofgrace or requirement of notice provided hereunder), and if the Company shall bein default, specifying all such defaults and the nature and status thereof ofwhich they may have knowledge.  Thedelivery requirements of this Section 10.3 may be satisfied by compliancewith Section 8.16(a) of the Trust Agreement.

 

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

 

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Interest PaymentDate in accordance with the terms of Schedule A (the “*Calculation Agent*”).  The Company has initially appointed theProperty Trustee as Calculation Agent for purposes of determining LIBOR foreach Interest Payment Date.  TheCalculation Agent may be removed by the Company at any time.  So long as the Property Trustee holds any ofthe Securities, the Calculation Agent shall be the Property Trustee, except asdescribed in the immediately preceding sentence.  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 Calculation Agent may not resign itsduties 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’s determination of theforegoing rates and amounts for any Interest Payment Date will (in the absenceof manifest error) be final and binding upon all parties.  For the sole purpose of calculating theinterest rate for the Securities, “Business Day” shall be defined as any day onwhich dealings in deposits in Dollars are transacted in the London interbankmarket.

 

SECTION 10.5.*  Additional Tax Sums*.

 

So long as no Event of Default has occurred and iscontinuing, if (a) the Trust is the Holder of all of the OutstandingSecurities and (b) a Tax Event described in clause (i) or (iii) inthe definition of Tax Event in Section 1.1 hereof has occurred andis continuing, the Company shall pay to the Trust (and its permitted successorsor assigns under the related Trust Agreement) for so long as the Trust (or itspermitted successor or assignee) is the registered holder of the OutstandingSecurities, such amounts as may be necessary in order that the amount ofDistributions (including any Additional Interest Amount (as defined in theTrust Agreement)) then due and payable by the Trust on the Preferred Securitiesand Common Securities that at any time remain outstanding in accordance withthe terms thereof shall not be reduced as a result of any Additional Taxesarising from such Tax Event (additional such amounts payable by the Company tothe Trust, the “*AdditionalTax Sums**”)**.* Whenever in this Indenture or the Securities there is a reference in anycontext to the payment of principal of or interest on the Securities, suchmention shall be deemed to include mention of the payments of the AdditionalTax Sums provided for in this Section 10.5 to the extent that, insuch context, Additional Tax Sums are, were or would be payable in respectthereof pursuant to the provisions of this Section 10.5 and expressmention of the payment of Additional Tax Sums (if applicable) in any provisionshereof shall not be construed as excluding Additional Tax Sums in thoseprovisions hereof where such

 

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express mention is notmade; *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 Sums thatmay 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 shares of the Company’s capital stock (for the avoidance of doubt, the term“capital stock” includes both common stock and preferred stock of the Company),(ii) vote in favor of or permit or otherwise allow any of its subsidiariesto declare or pay any dividends or distributions on, or redeem, purchase,acquire or make a liquidation payment with respect to or otherwise retire, anyshares of such subsidiaries preferred stock (for the avoidance of doubt,whether such preferred stock is perpetual or otherwise), or (iii) make anypayment of principal of or any interest or premium, if any, on or repay,repurchase or redeem any debt securities of the Company that rank *pari passu*in all respects with or junior in interest to the Securities (other than (A) repurchases,redemptions or other acquisitions of shares of capital stock of the Company inconnection with any employment contract, benefit plan or other similararrangement with or for the benefit of any one or more employees, officers,directors or consultants, in connection with a dividend reinvestment orstockholder stock purchase plan or in connection with the issuance of capitalstock of the Company (or securities convertible into or exercisable for suchcapital stock) as consideration in an acquisition transaction entered intoprior to the Event of Default or the applicable Extension Period, (B) as aresult of an exchange or conversion of any class or series of the Company’scapital stock (or any capital stock of a Subsidiary of the Company) for anyclass or series of the Company’s capital stock or of any class or series of theCompany’s indebtedness for any class or series of the Company’s capital stock, (C) thepurchase of fractional interests in shares of the Company’s capital stockpursuant to the conversion or exchange provisions of such capital stock or thesecurity being converted or exchanged, (D) any declaration of a dividendin connection with any Rights Plan, the issuance of rights, stock or otherproperty under any Rights Plan or the redemption or repurchase of rightspursuant thereto or (E) any dividend in the form of stock, warrants,options or other rights where the dividend stock or the stock issuable uponexercise of such warrants, options or other rights is the same stock as that onwhich the dividend is being paid or ranks *pari passu* with or junior to suchstock).

 

(b)                                 TheCompany also covenants with each Holder of Securities (i) to hold, directlyor indirectly, one hundred percent (100%) of the Common Securities of theTrust, *provided**,*thatany permitted successor of the Company hereunder may succeed to the Company’sownership of such Common Securities, (ii) as holder of such CommonSecurities, not to voluntarily dissolve, wind-up or liquidate the Trust otherthan (A) in connection with a distribution of the Securities to theholders of the Preferred Securities in liquidation of the Trust or (B) inconnection with certain mergers, consolidations or amalgamations permitted bythe Trust Agreement and (iii) to use its reasonable commercial efforts,consistent with the terms and provisions of the Trust Agreement, to cause theTrust to continue to be taxable as a grantor trust and not as a corporation forUnited States Federal income tax purposes.

 

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(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.

 

SECTION 10.7.*  Waiver of Covenants*.

 

The Company may omit in any particular instance tocomply with any covenant or condition contained in Section 10.6 if,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 as indebtedness,and the amounts, other than payments of principal, payable in respect of theprincipal amount of such Securities as interest, for all U.S. federal incometax purposes.  All payments in respect ofthe Securities will be made free and clear of U.S. withholding tax to anybeneficial owner thereof that has provided an Internal Revenue Service Form W-9or W-8BEN (or any substitute or successor form) establishing its U.S. ornon-U.S. status for U.S. federal income tax purposes, or any other applicableform establishing a complete exemption from U.S. withholding tax.

 

ARTICLE XI

 

REDEMPTION OF SECURITIES

 

SECTION 11.1.*  Optional Redemption*.

 

The Company may, at itsoption, on any Interest Payment Date, on or after June 30, 2010, redeemthe Securities in whole at any time or in part from time to time, at aRedemption Price equal to one hundred percent (100%) of the principal amountthereof (or of the redeemed portion thereof, as applicable), together, in thecase of any such redemption, with accrued and unpaid interest, including anyAdditional Interest, through but excluding the date fixed as the RedemptionDate (the “*Optional Redemption Price*”).

 

SECTION 11.2.*  Special Event Redemption*.

 

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

 

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SECTION 11.3.*  Election to Redeem; Notice to Trustee*.

 

The election of the Company to redeem any Securities,in whole or in part, shall be evidenced by or pursuant to a 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 an Officers’Certificate and an Opinion of Counsel evidencing compliance with suchrestriction or condition.

 

SECTION 11.4.*  Selection of Securities to be 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 the sixtieth (60th) day, prior to theRedemption Date to each Holder of Securities to be redeemed, in whole or inpart (unless a shorter notice shall be satisfactory to the Property Trusteeunder the related Trust Agreement).

 

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

 

(i)  the RedemptionDate;

 

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

 

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

 

(iv)  that on theRedemption Date, the Redemption Price will become due and payable upon eachsuch Security or portion thereof, and that any interest (including any AdditionalInterest) on such Security or such portion, as the case may be, shall cease toaccrue on and after said date; and

 

(v)  the place orplaces 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 Redemption Price*.

 

Prior to 10:00 a.m., New York City time, on theRedemption Date specified in the notice of redemption given as provided in Section 11.5,the Company will deposit with the Trustee or with one or more Paying Agents (orif the Company is acting as its own Paying Agent, the Company will segregateand hold in trust as provided in Section 10.2) an amount of moneysufficient to pay the Redemption Price of, and any accrued interest (includingany Additional Interest) on, all the Securities (or portions thereof) that areto be redeemed on that date.

 

SECTION 11.7.*  Payment of Securities Called 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 due and payable on the date and at the place or placesstated in such notice at the applicable Redemption Price, together with accruedinterest (including any Additional Interest) to the Redemption Date. Onpresentation and surrender of such Securities at a Place of Payment specifiedin such notice, the Securities or the specified portions thereof shall be paidand redeemed by the Company at the applicable Redemption Price, together withaccrued interest (including any Additional 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

 

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Company, a newSecurity or Securities, of authorized denominations, in aggregate principalamount equal to the unredeemed portion of the Security so presented and havingthe same Original Issue Date, Stated Maturity 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 to Senior Debt.*

 

The Company covenants and agrees, and each Holder of aSecurity, by its acceptance thereof, likewise covenants and agrees, that, tothe 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 Senior Debt 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 ordistribution, whether in cash, securities or other property, shall be made toany Holder of any of the Securities on account thereof. Any payment ordistribution, whether in cash, securities or other property (other thansecurities of the Company or any other entity provided for by a plan ofreorganization or readjustment the payment of which is subordinate, at least tothe extent provided in these subordination provisions with respect to theindebtedness evidenced by the Securities, to the payment of all Senior Debt atthe time outstanding and to any securities issued in respect thereof under anysuch plan of reorganization or readjustment), which would otherwise (but forthese subordination provisions) be payable or deliverable in respect of theSecurities shall be paid or delivered directly to the holders of Senior Debt inaccordance with the priorities

 

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then existingamong such holders until all Senior Debt (including any interest thereonaccruing after the commencement of any Proceeding) shall have been paid infull.

 

(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 capitalstock or any obligations of the Company ranking junior to the Securities andsuch other obligations. If, notwithstanding the foregoing, any payment ordistribution of any character or any security, whether in cash, securities orother property (other than securities of the Company or any other entityprovided for by a plan of reorganization or readjustment the payment of whichis subordinate, at least to the extent provided in these subordinationprovisions with respect to the indebtedness evidenced by the Securities, to thepayment of all Senior Debt at the time outstanding and to any securities issuedin respect thereof under any such plan of reorganization or readjustment) shallbe received by the Trustee or any Holder in contravention of any of the termshereof and before all Senior Debt shall have been paid in full, such payment ordistribution or security shall be received in trust for the benefit of, andshall be paid over or delivered and transferred to, the holders of the SeniorDebt at the time outstanding in accordance with the priorities then existingamong such holders for application to the payment of all Senior Debt remainingunpaid, to the extent necessary to pay all such Senior Debt (including anyinterest thereon accruing after the commencement of any Proceeding) in full. Inthe event of the failure of the Trustee or any Holder to endorse or assign anysuch payment, distribution or security, each holder of Senior Debt is herebyirrevocably authorized to endorse 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.

 

(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 No Default*.

 

Nothing contained in this Article XII orelsewhere 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

 

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Section 12.2,from making payments at any time of principal of and any premium or interest(including any Additional Interest) on the Securities or (b) theapplication by the Trustee of any moneys deposited with it hereunder to thepayment of or on account of the principal of and any premium or interest(including any Additional Interest) on the Securities or the retention of suchpayment by the Holders, if, at the time of such application by the Trustee, itdid not have knowledge (in accordance with Section 12.8) that suchpayment would have been prohibited by the provisions of this Article XII,except as provided in Section 12.8.

 

SECTION 12.4.*  Subrogation to Rights of Holders of SeniorDebt*.

 

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

 

SECTION 12.5.*  Provisions Solely to Define Relative Rights*.

 

The provisions of this Article XII are andare intended solely for the purpose of defining the relative rights of theHolders of the Securities on the one hand and the holders of Senior Debt on theother hand. Nothing contained in this Article XII or elsewhere inthis Indenture or in the Securities is intended to or shall (a) impair, asbetween the Company and the Holders of the Securities, the obligations of theCompany, which are absolute and unconditional, to pay to the Holders of theSecurities the principal of and any premium and interest (including anyAdditional Interest) on the Securities as and when the same shall become dueand payable in accordance with their terms, (b) affect the relative rightsagainst the Company of the Holders of the Securities and creditors of theCompany other than their rights in relation to the holders of Senior Debt or (c) preventthe Trustee or the Holder of any Security (or to the extent expressly providedherein, the holder of any Preferred Security) from exercising all remediesotherwise permitted by applicable law upon default under this Indenture,including filing and voting claims in any Proceeding, subject to the rights, ifany, under this Article XII of the holders of Senior Debt toreceive cash, property and securities otherwise payable or deliverable to theTrustee or such Holder.

 

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SECTION 12.6.*  Trustee to Effectuate Subordination*.

 

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

 

SECTION 12.7.*  No Waiver of Subordination Provisions*.

 

(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 without impairingor releasing the subordination provided in this Article XII or theobligations hereunder of such Holders of the Securities to the holders ofSenior Debt, do any one or more of the following: (i) change the manner,place or terms of payment or extend the time of payment of, or renew or alter,Senior Debt, or otherwise amend or supplement in any manner Senior Debt or anyinstrument evidencing the same or any agreement under which Senior Debt isoutstanding, (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 received written notice thereof from the Company or a holderof Senior Debt or from any trustee, agent or representative therefor; *provided**,*thatif the Trustee shall not have received the notice provided for in this Section 12.8at least two Business Days prior to the date upon which by the terms hereof anymonies may become payable for any purpose (including, the payment of theprincipal of and any premium on or interest (including any Additional Interest)on any Security), then, anything herein contained to the contrarynotwithstanding, the Trustee shall have full power and authority to receivesuch monies and to apply the same to the purpose for which they were receivedand shall not be affected by any notice to the contrary that may be received byit within two Business Days prior to such date.

 

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(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 Order or Certificate ofLiquidating Agent*.

 

Upon any payment or distribution of assets of theCompany 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 suchProceeding is 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 for Holders of SeniorDebt*.

 

The Trustee, in its capacity as trustee under thisIndenture, 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 as Holder of Senior Debt;Preservation of Trustee’s Rights*.

 

The Trustee in its individual capacity shall beentitled to all the rights set forth in this Article XII withrespect 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 to Paying Agents*.

 

If at any time any Paying Agent other than the Trusteeshall have been appointed by the Company and be then acting hereunder, the term“*Trustee**”* asused 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

 

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Sections12.8 and 12.11 shall not apply to the Company or any Affiliate ofthe Company if the Company or such Affiliate acts 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, theparties hereto have caused this Indenture to be duly executed as of the day andyear 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 London interbankoffered rate (“*LIBOR*”) shall bedetermined by the Calculation Agent in accordance with the following provisions(in each case rounded to the nearest .000001%):

 

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

 

(2)                                  If,on any LIBOR Determination Date, such rate does not appear on Dow JonesTelerate Page 3750 or such other page as may replace such Page 3750,the Calculation Agent shall determine the arithmetic mean of the offeredquotations of the Reference Banks (as defined below) to leading banks in theLondon interbank market for three-monthEurodollar deposits in an amount determined by the Calculation Agent byreference to requests for quotations as of approximately 11:00 a.m.(London time) on the LIBOR Determination Date made by the Calculation Agent tothe Reference Banks.  If, on any LIBORDetermination Date, at least two of the Reference Banks provide suchquotations, LIBOR shall equal such arithmetic mean of such quotations.  If, on any LIBOR Determination Date, only oneor none of the Reference Banks provide such quotations, LIBOR shall be deemedto be the arithmetic mean of the offered quotations that leading banks in theCity of New York selected by the Calculation Agent are quoting on the relevantLIBOR Determination Date for three-monthEurodollar deposits in an amount determined by the Calculation Agent byreference to the principal London offices of leading banks in the Londoninterbank market; *provided* that,if the Calculation Agent is required but is unable to determine a rate inaccordance with at least one of the procedures provided above, LIBOR shall beLIBOR as determined on the previous LIBOR Determination Date.

 

(3)                                  Asused 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.

 

A-1

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Exhibit A

 

**Form of Officer’s Financial Certificate**

** **

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

 

As of **[Quarterly/AnnualFinancial Date]**, 20    

 
| Senior  secured indebtedness for borrowed money (“Debt”) |   | $      |   |   |
|--------------------------------------------------------------------|--------|--------|--------|--------|
| Senior  unsecured Debt                                             |   | $      |   |   |
| Subordinated  Debt                                                 |   | $      |   |   |
| Total Debt                                                         |   | $      |   |   |
| Ratio of (x)  senior secured and unsecured Debt to (y) total Debt  |   |   | %      |

 

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

 

[FOR FISCAL QUARTER END:  Attached hereto are the unauditedconsolidated and consolidating financial statements (including the balancesheet and income statement) of the Company and its consolidated subsidiariesfor the fiscal quarter ended [date], 20    .]

 

The financial statements fairly present in allmaterial respects, in accordance with U.S. generally accepted accountingprinciples (“GAAP”), the financial position of the Company and its consolidatedsubsidiaries, and the results of operations and changes in financial conditionas of the date, and for the [quarter] [annual] period ended [date], 20    ,and such financial statements have been prepared in accordance with GAAPconsistently applied throughout the period involved (expect as otherwise notedtherein).

 

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

 
|   | GKK CAPITAL LP                                    |
|--------|---------------------------------------------------|
|   | By: GRAMERCY  CAPITAL CORP., its general  partner |
|   |                                              |
|   |                                              |
|   | By:                                               |   |   |
|   |                                              | Name: |
|   |                                              | Title: |
|   |                                              |
|   |                                              |
|   | GKK Capital LP                                    |
|   | 420 Lexington Avenue                              |
|   | New York, NY 10170                                |
|   | (212) 297-1000                                    |

 

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