Exhibit
4.1

    EXECUTION
VERSION

     

    JUNIOR
SUBORDINATED INDENTURE

     

    between

     

    BRT
REALTY TRUST

     

    and

     

    THE BANK
OF NEW YORK MELLON,

    as
Trustee

     

      
        

      

    

     

    Dated as
of May 26, 2009

     

      
        

      

    

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    
      TABLE
OF CONTENTS

       

      
        
          
            	 
      	
                    Page

                  
	 
      	 
      
	
                    Article
      I Definitions and Other Provisions of General Application

                  	
                    1

                  
	 
      	
                    Definitions

                  	
                    1

                  
	 
      	
                    Compliance
      Certificate and Opinions

                  	
                    10

                  
	 
      	
                    Forms
      of Documents Delivered to Trustee

                  	
                    11

                  
	 
      	
                    Acts
      of Holders

                  	
                    11

                  
	 
      	
                    Notices,
      Etc. to Trustee and Company

                  	
                    13

                  
	 
      	
                    Notice
      to Holders; Waiver

                  	
                    14

                  
	 
      	
                    Effect
      of Headings and Table of Contents

                  	
                    14

                  
	 
      	
                    Successors
      and Assigns

                  	
                    15

                  
	 
      	
                    Separability
      Clause

                  	
                    15

                  
	 
      	
                    Benefits
      of Indenture

                  	
                    15

                  
	 
      	
                    Governing
      Law

                  	
                    15

                  
	 
      	
                    Submission
      to Jurisdiction

                  	
                    15

                  
	 
      	
                    Non-Business
      Days

                  	
                    16

                  
	
                    SECTION
      1.14.

                  	
                    Account.

                  	
                    16

                  
	
                    Article
      II Security Forms

                  	
                    17

                  
	 
      	
                    Form
      of Security

                  	
                    17

                  
	 
      	
                    Restricted
      Legend

                  	
                    21

                  
	 
      	
                    Form
      of Trustee’s Certificate of Authentication

                  	
                    23

                  
	 
      	
                    Temporary
      Securities

                  	
                    24

                  
	 
      	
                    Definitive
      Securities

                  	
                    24

                  
	
                    Article
      III The Securities

                  	
                    25

                  
	 
      	
                    Payment
      of Principal and Interest

                  	
                    25

                  
	 
      	
                    Denominations

                  	
                    26

                  
	 
      	
                    Execution,
      Authentication, Delivery and Dating

                  	
                    27

                  
	 
      	
                    Global
      Securities

                  	
                    28

                  
	 
      	
                    Registration,
      Transfer and Exchange Generally

                  	
                    29

                  
	 
      	
                    Mutilated,
      Destroyed, Lost and Stolen Securities

                  	
                    31

                  
	 
      	
                    Persons
      Deemed Owners

                  	
                    32

                  
	 
      	
                    Cancellation

                  	
                    32

                  
	 
      	
                    Reserved

                  	
                    32

                  
	 
      	
                    Reserved

                  	
                    32

                  
	 
      	
                    Agreed
      Tax Treatment

                  	
                    32

                  
	 
      	
                    CUSIP
      Numbers

                  	
                    33

                  
	
                    Article
      IV Satisfaction and Discharge

                  	
                    33

                  
	 
      	
                    Satisfaction
      and Discharge of Indenture

                  	
                    33

                  
	 
      	
                    Application
      of Trust Money

                  	
                    35

                  
	
                    Article
      V Remedies

                  	
                    35

                  
	 
      	
                    Events
      of Default

                  	
                    35

                  
	 
      	
                    Acceleration
      of Maturity; Rescission and Annulment

                  	
                    36

                  
	 
      	
                    Collection
      of Indebtedness and Suits for Enforcement by Trustee

                  	
                    37

                  
	 
      	
                    Trustee
      May File Proofs of Claim

                  	
                    37

                  


          

        

      

       

      
        
          
          

        

        
          i

          
            

          

        

        
          
          

        

      

       

      
        
          
            	 
      	
                    Trustee
      May Enforce Claim Without Possession of Securities

                  	
                    38

                  
	 
      	
                    Application
      of Money Collected

                  	
                    38

                  
	 
      	
                    Limitation
      on Suits

                  	
                    38

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

                  	
                    39

                  
	 
      	
                    Restoration
      of Rights and Remedies

                  	
                    39

                  
	 
      	
                    Rights
      and Remedies Cumulative

                  	
                    39

                  
	 
      	
                    Delay
      or Omission Not Waiver

                  	
                    40

                  
	 
      	
                    Control
      by Holders

                  	
                    40

                  
	 
      	
                    Waiver
      of Past Defaults

                  	
                    40

                  
	 
      	
                    Undertaking
      for Costs

                  	
                    41

                  
	 
      	
                    Waiver
      of Usury, Stay or Extension Laws

                  	
                    41

                  
	
                    Article
      VI The Trustee

                  	
                    41

                  
	 
      	
                    Corporate
      Trustee Required

                  	
                    41

                  
	 
      	
                    Certain
      Duties and Responsibilities

                  	
                    42

                  
	 
      	
                    Notice
      of Defaults

                  	
                    43

                  
	 
      	
                    Certain
      Rights of Trustee

                  	
                    43

                  
	 
      	
                    May
      Hold Securities

                  	
                    45

                  
	 
      	
                    Compensation;
      Reimbursement; Indemnity

                  	
                    45

                  
	 
      	
                    Resignation
      and Removal; Appointment of Successor

                  	
                    46

                  
	 
      	
                    Acceptance
      of Appointment by Successor

                  	
                    47

                  
	 
      	
                    Merger,
      Conversion, Consolidation or Succession to Business

                  	
                    47

                  
	 
      	
                    Not
      Responsible for Recitals or Issuance of Securities

                  	
                    48

                  
	 
      	
                    Appointment
      of Authenticating Agent

                  	
                    48

                  
	
                    Article
      VII Holder’s Lists and Reports by Company

                  	
                    49

                  
	 
      	
                    Company
      to Furnish Trustee Names and Addresses of Holders

                  	
                    49

                  
	 
      	
                    Preservation
      of Information, Communications to Holders

                  	
                    50

                  
	 
      	
                    Reports
      by Company

                  	
                    50

                  
	
                    Article
      VIII No Consolidation, Merger, Conveyance, Transfer or
    Lease

                  	
                    51

                  
	 
      	
                    Company
      May Consolidate, Etc., Only on Certain Terms

                  	
                    51

                  
	 
      	
                    Successor
      Company Substituted

                  	
                    52

                  
	
                    Article
      IX Supplemental Indentures

                  	
                    52

                  
	 
      	
                    Supplemental
      Indentures without Consent of Holders

                  	
                    52

                  
	 
      	
                    Supplemental
      Indentures with Consent of Holders

                  	
                    53

                  
	 
      	
                    Execution
      of Supplemental Indentures

                  	
                    54

                  
	 
      	
                    Effect
      of Supplemental Indentures

                  	
                    54

                  
	 
      	
                    Reference
      in Securities to Supplemental Indentures

                  	
                    54

                  
	
                    Article
      X Covenants

                  	
                    54

                  
	 
      	
                    Payment
      of Principal, Premium, if any, and Interest

                  	
                    54

                  
	 
      	
                    Money
      for Security Payments to be Held in Trust

                  	
                    55

                  
	 
      	
                    Statement
      as to Compliance

                  	
                    55

                  
	 
      	
                    Calculation
      Agent

                  	
                    56

                  
	 
      	
                    Additional
      Covenants

                  	
                    56

                  


          

        

      

       

      
        
          
          

        

        
          ii

          
            

          

        

        
          
          

        

      

      


      
        
          
            
              
                	 
      	
                        Waiver
      of Covenants

                      	
                        57

                      
	 
      	
                        Treatment
      of Securities

                      	
                        57

                      
	 
      	
                        Inspection
      of Books and Records

                      	
                        57

                      
	
                        Article
      XI Redemption of Securities

                      	
                        58

                      
	 
      	
                        Optional
      Redemption

                      	
                        58

                      
	 
      	
                        Reserved

                      	
                        58

                      
	 
      	
                        Election
      to Redeem; Notice to Trustee

                      	
                        58

                      
	 
      	
                        Selection
      of Securities to be Redeemed

                      	
                        58

                      
	 
      	
                        Notice
      of Redemption

                      	
                        59

                      
	 
      	
                        Deposit
      of Redemption Price

                      	
                        60

                      
	 
      	
                        Payment
      of Securities Called for Redemption

                      	
                        60

                      
	
                        Article
      XII Subordination of Securities

                      	
                        60

                      
	 
      	
                        Securities
      Subordinate to Senior Debt

                      	
                        60

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

                      	
                        61

                      
	 
      	
                        Payment
      Permitted If No Default

                      	
                        62

                      
	 
      	
                        Subrogation
      to Rights of Holders of Senior Debt

                      	
                        62

                      
	 
      	
                        Provisions
      Solely to Define Relative Rights

                      	
                        63

                      
	 
      	
                        Trustee
      to Effectuate Subordination

                      	
                        63

                      
	 
      	
                        No
      Waiver of Subordination Provisions

                      	
                        63

                      
	 
      	
                        Notice
      to Trustee

                      	
                        64

                      
	 
      	
                        Reliance
      on Judicial Order or Certificate of Liquidating Agent

                      	
                        64

                      
	 
      	
                        Trustee
      Not Fiduciary for Holders of Senior Debt

                      	
                        65

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

                      	
                        65

                      
	 
      	
                        Article
      Applicable to Paying Agents

                      	
                        65

                      


              

            

          

        

      

    


    
      
         


      

      
        iii

        
          

        

      

      
         


      

    

     

    Junior
Subordinated
Indenture,
dated as of May 26, 2009 , between BRT Realty Trust, a Massachusetts business
trust (the “Company”), and The Bank of New
York Mellon, a New York banking corporation, as Trustee (in such capacity, the
“Trustee”).

     

    Recitals
of the Company

     

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

    

     

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

     

    Now,
Therefore,
this Indenture Witnesseth:

     

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

     

    1.

     

    Definitions
and Other Provisions of General Application

     

    (a)                            Definitions.

     

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

     

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

     

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

     

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

     

    (iv)         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;

     

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

     

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


    
      
         


      

      
        1

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

    “Advance Interest Amounts”
shall mean all interest paid by the Company annually in advance during the
first, second and third years of the Modification Period.

     

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

     

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

     

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

     

    “Board of Trustees” means the board of
trustees of the Company or any duly authorized committee of that
board.

     

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

     

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

     

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

     

    “Code” means the Internal
Revenue Code of 1986, as amended.

     

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

     

    
      
         


      

      
        2

        
          

        

      

      
         


      

    

     

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

     

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

     

    “Corporate Trust Office” means the principal
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of this Indenture is
located at 101 Barclay St 4W (ABS), New York, NY 10286 Attn: Corporate Trust –
BRT Realty Trust.  Initially, all notices and correspondence shall be
addressed to Jared Fischer, telephone (212) 815-8139.

     

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

     

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

     

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

     

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

     

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

     

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

     

    
      
         


      

      
        3

        
          

        

      

      
         


      

    

     

    “Equity Interests” means (a) the
partnership interests (general or limited) in a partnership, (b) the membership
interests in a limited liability company, (c) the shares or stock interests
(both common stock and preferred stock) in a corporation, and (d) the shares of
beneficial interest (both preferred and common shares of beneficial interest) in
a business trust.

     

    “Eligible Investments” means
any Dollar-denominated investment that is one or more of the following (and may
include investments for which the Trustee and/or its affiliates provides
services or receives compensation):

     

    (a)          direct
registered obligations of, and registered obligations the timely payment of
principal of and interest on which is fully and expressly guaranteed by, the
United States of America, or any agency or instrumentality of the United States
of America the obligations of which are backed by the full faith and credit of
the United States of America;

     

    (b)          demand
and time deposits in, and certificates of deposit of, bankers acceptances issued
by, or federal funds sold by any depository institution or trust company
(including the Trustee) organized under the laws of the United States of America
or any state thereof and subject to the supervision and examination by federal
and/or state banking authorities so long as the commercial paper and/or debt
obligations of such depository institution or trust company (or, in the case of
the principal depository institution in a holding company system, the commercial
paper or debt obligations of such holding company) at the time of such
investment or contractual commitment providing for such investment have a credit
rating of “Aa2” by Moody’s, “AA-” by Standard & Poor’s and, if rated by
Fitch, “AA-” by Fitch, in the case of debt obligations, or “P-1” by Moody’s and,
if rated by Fitch, “F1+” by Fitch or better, in the case of commercial paper and
short-term debt obligations;

     

    (c)           registered
securities bearing interest or sold at a discount issued by any corporation
under the laws of the United States of America or any state thereof that have a
credit rating of “Aa3” by Moody’s, “AA-” by Standard & Poor’s and, if rated
by Fitch, “AA-” by Fitch at the time of such investment or contractual
commitment providing for such investment;

     

    (d)          unleveraged
repurchase obligations with respect to any security described in clause (a)
above, entered into with a depository institution or trust company (acting as
principal) described in clause (b) or entered into with a corporation (acting as
principal) whose short-term debt has a credit rating of “P-1” by Moody’s, “A
-1+” by Standard & Poor’s and, if rated by Fitch, “F1+” by Fitch or better
at the time of such investment in the case of any repurchase obligation for a
security having a maturity not more than 183 days from the date of its issuance
or whose long-term debt has a credit rating of “Aa3” by Moody’s, “AA-” by
Standard & Poor’s and, if rated by Fitch, “AA-” by Fitch or better at the
time of such investment in the case of any repurchase obligation for a security
having a maturity more than 183 days from the date of its issuance;

     

    (e)          commercial
paper or other short-term obligations having at the time of such investment a
credit rating of “P-1” by Moody’s, “A -1+” by Standard & Poor’s and, if
rated by Fitch, “F1+” by Fitch or better and either are bearing interest or are
sold at a discount from the face amount thereof and that have a maturity of not
more than 183 days from its date of issuance; provided, that in the case of
commercial paper with a maturity of longer than 91 days, the issuer of such
commercial paper (or, in the case of a principal depository institution in a
holding company system, the holding company of such system), if rated by any
Rating Agency, must have at the time of such investment a long-term credit
rating of “Aa2” by Moody’s, “AA-” by Standard & Poor’s and, if rated by
Fitch, “AA-” by Fitch;

     

    
      
         


      

      
        4

        
          

        

      

      
         


      

    

     

    (f)           offshore
money market funds with respect to any investments described in clauses (a)
through (e) above having, at the time of such investment, a credit rating of not
less than “MR1+” and “Aaa” by Moody’s, “AAAm” or “AAAm-G” by Standard &
Poor’s and, if rated by Fitch, “AAA” by Fitch; and

     

    (g)          interest-bearing
demand cash accounts held at the Bank;

     

    provided,
that Eligible Investments purchased with funds in the Payment Account shall be
held until maturity except as otherwise specifically provided herein and shall
include only such obligations or securities as mature no later than the Business
Day prior to the Interest Payment Date next succeeding the date of investment in
such obligations or securities, unless such Eligible Investments are issued by
the Trustee in its capacity as a banking institution, in which event such
Eligible Investments may mature on such Interest Payment Date; and provided,
further, that Eligible Investments shall not have payments subject to foreign or
United States withholding tax, shall not be subject to an Offer, shall not be
“mortgage -backed securities,” shall not have a Standard & Poor’s rating
which contains a subscript “r,” “t,” “p,” “pi” or “q” and shall not have all, or
substantially all, of the remaining amounts payable thereunder consist of
interest and not principal payments

     

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

     

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

     

    “Exchange Agreement” means
that certain Exchange Agreement executed and delivered contemporaneously with
this Indenture by the Company and Taberna Preferred Funding IV, Ltd, Taberna
Preferred Funding V, Ltd. and Taberna Preferred Funding VI, Ltd, as the same may
be amended from time to time.

     

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

     

    “Fixed Rate” means a rate equal to
(a) for each Interest Period occurring during the Modification Period, a fixed
rate equal to three and one-half percent (3.50%) per annum and (b) for the
Interest Period commencing on August 1, 2012 and for each Interest Period
thereafter through and including April 29, 2016, a fixed rate equal to
8.37%.

     

    “Fixed Rate Period” has the
meaning specified in Section
3.1(a).

     

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

     

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

     

    
      
         


      

      
        5

        
          

        

      

      
         


      

    

     

    “Government Obligation” means (a) any security
that is (i) a direct obligation of the United States of America of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (b) any depositary receipt
issued by a bank (as defined in section 3(a)(2) of the Securities Act) as
custodian with respect to any Government Obligation that is specified in clause
(a) above and held by such bank for the account of the holder of such depositary
receipt, or with respect to any specific payment of principal of or interest on
any Government Obligation that is so specified and held, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of principal or interest evidenced by such depositary receipt.

     

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

     

    “Holder Representative” means,
for so long as the Modification Period remains in effect, the person designated
by a majority of the Holders to direct the Trustee in respect of the investment
of Advance Interest Amounts received by the Trustee and deposited in the Payment
Account and the distribution of Advance Interest Amounts and investment proceeds
earned thereon as contemplated by Section 1.14
hereof.  The Holders have initially designated Taberna Capital
Management, LLC as the Holder Representative.

     

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

     

    “Interest Payment Date” means (a) during the
Modification Period, a date no later than fifteen (15) days prior to May 1 of
each year, and (b) following the Modification Period, January 30, April 30, July
30 and October 30 of each year, commencing on October 30, 2012, during the
remaining term of this Indenture.

     

    “Interest Period” means (a)
during the term of the Modification Period, the period commencing on May 1 of
each year, commencing on May 1, 2009, and continuing through and including the
day prior to the next succeeding May 1, provided that the Interest
Period commencing on May 1, 2012 shall continue through and include July 31,
2012, and (b) following the Modification Period, the period commencing on an
Interest Payment Date and continuing through and including the day prior to the
next succeeding Interest Payment Date; provided, however, that the first
Interest Period after the Modification Period shall commence on August 1, 2012
and continue through and including the day prior to the next succeeding Interest
Payment Date.

     

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

     

    
      
         


      

      
        6

        
          

        

      

      
         


      

    

     

    “LIBOR” has the meaning
specified in Schedule
A.

     

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

     

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

     

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

     

    “Modification Period” means
the means the period commencing on May 1, 2009 and continuing through and
including July 31, 2012.

     

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

     

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

     

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

     

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

     

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

     

    “Other Taxes” has the meaning
set forth in Section
3.11(c).

     

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

     

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

     

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

     

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

     

    
      
         


      

      
        7

        
          

        

      

      
         


      

    

     

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

     

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

     

    “Payment Account” has the
meaning set forth in Section
1.14.

     

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

     

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

     

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

     

    “Proceeding” has the meaning
specified in Section
12.2(b).

     

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

     

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

     

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

     

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


    
      
         


      

      
        8

        
          

        

      

      
         


      

    

     

    “REIT” means “real estate
investment trust” within the meaning of Section 856 of the Code.

     

    “Responsible Officer” means, when used with
respect to the Trustee, any officer in the Corporate Trust Office (or any
successor office of the Trustee) authorized to act for and on behalf of the
Trustee, including any vice president, assistant vice president or other officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred in the Corporate Trust Office because of such
person’s knowledge and familiarity with the particular subject.

     

    “Revenue Procedure” means
Internal Revenue Service Revenue Procedure 2008-68 or any procedure successor
thereto, in each case as extended or amended from time to time.

     

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

     

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

     

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

     

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

     

    “Shareholders Act” means the
Shareholders Communication Act of 1985 (as amended from time to
time).

     

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

     

    “Stated Maturity” means April 30,
2036.

     

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

     

    
      
         


      

      
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     “Subsidiary” of a Person means (a)
any corporation more than 50% of the outstanding securities having ordinary
voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person and/or by one or more of its Subsidiaries or (b) any
partnership, limited liability company, association, joint venture or similar
business organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be owned or controlled, directly or
indirectly, by such Person and/or by one or more of its
Subsidiaries.  Unless otherwise expressly provided, all references
herein to a “Subsidiary” shall mean a Subsidiary of the Company.

     

    “ Taxes” has the meaning set
forth in Section
3.11(b).

     

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

     

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

     

    (b)                            Compliance
Certificate and Opinions.

     

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

     

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

     

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

     

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

     

    a
statement that, in the opinion of such individual, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and

     

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

     

    
      
         


      

      
        10

        
          

        

      

      
         


      

    

     

    (c)                            Forms
of Documents Delivered to Trustee.

     

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

     

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

     

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

     

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

     

    (d)                            Acts
of Holders.

     

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

     

    
      
         


      

      
        11

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

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

     

    (vi)           Except
as set forth in paragraph (g) of this Section 1.4, the
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given, made or taken by Holders of
Securities.  If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date (as defined in Section 1.4(h)), by
Holders of the requisite principal amount of Outstanding Securities on such
record date.  Nothing in this paragraph shall be construed to prevent
the Company from setting a new record date for any action for which a record
date has previously been set pursuant to this paragraph (whereupon the record
date previously set shall automatically and with no action by any Person be
canceled and of no effect).  Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section
1.6.

     

    
      
         


      

      
        12

        
          

        

      

      
         


      

    

     

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

     

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

     

    (e)                            Notices,
Etc. to Trustee and Company.

     

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

     

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

     

     the
Company by the Trustee or any Holder shall be sufficient for every purpose
hereunder if in writing and mailed, first class or overnight delivery, postage
prepaid, to the Company addressed to it at 60 Cutter Mill Road, Suite 303, Great
Neck, NY 11021, Attention: Jeffrey Gould or at any other address previously
furnished in writing to the Trustee by the Company with a copy to Milbank,
Tweed, Hadley & McCloy LLP addressed to it at 1 Chase Manhattan Plaza, New
York, New York 10005, Attention: Robert B. Williams.

     

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

     

    
      
         


      

      
        13

        
          

        

      

      
         


      

    

     

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

     

    (f)                            Notice
to Holders; Waiver.

     

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

     

    (g)                            Effect
of Headings and Table of Contents.

     

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

     

    
      
         


      

      
        14

        
          

        

      

      
         


      

    

     

    (h)                            Successors
and Assigns.

     

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

     

    (i)                            Separability
Clause.

     

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

     

    (j)                            Benefits
of Indenture.

     

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

     

    (k)                            Governing
Law.

     

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

     

    (l)                            Submission
to Jurisdiction.

     

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

     

    
      
         


      

      
        15

        
          

        

      

      
         


      

    

     

    (m)                            Non-Business
Days.

     

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

     

    With
respect to Securities issued in the United States, the Shareholders Act requires
the Trustee to disclose to the issuers, upon their request, the name, address
and securities position of its customers who are (a) the “beneficial owners” (as
defined in the Shareholders Act) of the issuer’s Securities, if the beneficial
owner does not object to such disclosure, or (b) acting as a “respondent bank”
(as defined in the Shareholders Act) with respect to the
Securities.  (Under the Shareholders Act, “respondent banks” do not
have the option of objecting to such disclosure upon the issuers’
request.)  The Shareholders Act defines a “beneficial owner” as any
person who has, or shares, the power to vote a security (pursuant to an
agreement or otherwise), or who directs the voting of a security.  The
Shareholders Act defines a “respondent bank” as any bank, association or other
entity that exercises fiduciary powers which holds securities on behalf of
beneficial owners and deposits such securities for safekeeping with a bank, such
as the Trustee.  Under the Shareholders Act, each Holder is either the
“beneficial owner” or a “respondent bank.”

     

    For
purposes of this Indenture, until the Trustee receives a contrary written
instruction from a Holder, the Trustee shall assume that such Holder is the
beneficial owner of the Securities.

     

    For
purposes of this Indenture, until the Trustee receives a contrary instruction
from a Holder, the Trustee shall release the name, address and securities
position to any issuer which requests such information pursuant to the
Shareholders Act for the specific purpose of direct communications between such
issuer and such Holder.  With respect to Securities issued outside of
the United States, information shall be released to issuers only if required by
law or regulation of the particular country in which the Securities are
located.

     

    (n)                            Account.

     

    In
connection with any funds received by the Trustee hereunder and any payments
made on account of any Holder of Securities, the Trustee shall, on or prior to
the date of this Indenture, establish a segregated non-interest bearing trust
account in the name of the Trustee, which shall be designated as the “Payment
Account.”  Amounts received from the Company, including Advance
Interest Amounts received by the Trustee during the Modification Period, shall
be deposited by the Trustee into the Payment Account and shall relieve the
Company of its obligations with respect to amounts so paid.  The
Trustee shall, without any further direction from the Company, make payments in
respect of the Securities from amounts on deposit in the Payment Account as the
same become due on each Interest Payment Date, provided that each Holder agrees
that Advance Interest Amounts shall be disbursed by the Trustee in equal amounts
quarterly on each date that would be an Interest Payment Date following the
Modification Period commencing on July 30, 2009 and as otherwise set forth in
this Section 1.14 (except in the case of the Interest Period ending on July 31,
2012, in which instance all Advance Interest Amounts shall be disbursed to the
Holders).  Any Advance Interest Amounts shall be invested in Eligible
Investments as directed by the Holder Representative (and agreed to by the
Trustee).  Neither the Company nor the Trustee shall be liable for
losses incurred on investments made at the direction of the Holder
Representative as provided herein.  Any investment proceeds deposited
into the Payment Account shall be distributed to the Holders on a pro rata basis at such times
and as so directed by the Holder Representative.  The Trustee may
establish any number of subaccounts as it deems necessary or advisable for
purposes of performing its obligations under this Indenture.  The only
permitted withdrawals from or application of funds on deposit in, or otherwise
to the credit of, the Payment Account shall be to pay amounts due and payable to
the Trustee pursuant to Section 6.6 hereof and to the Holders on account of the
Securities in accordance with their terms and the provisions of this
Indenture.  Except for Advance Interest Amounts invested in accordance
with this Section, amounts in the Payment Account shall be held
uninvested.

     

    
      
         


      

      
        16

        
          

        

      

      
         


      

    

     

    2.

     

    Security
Forms

     

    (a)                            Form
of Security.

     

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

     

    BRT
Realty Trust

     

    Junior
Subordinated Note due 2036

     

    
      	
              No.

            	 
      	 
      	
              $

            	 
      


    

     

    BRT
Realty Trust, a business trust organized and existing under the laws of
Massachusetts (hereinafter called the “Company” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [____________________], or registered
assigns, the principal sum of ________________ ($__________) [if the Security
is a Global Security, then insert — or such other principal amount
represented hereby as may be set forth in the records of the Securities
Registrar hereinafter referred to in accordance with the Indenture] on
April 30, 2036.  During the Modification Period, the Company further
promises to pay interest on said principal sum from May 1, 2009, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, annually in advance (all such interest paid by the Company in
advance during the first, second and third years of the Modification Period, the
“Advance Interest Amounts”)  no later than fifteen (15) days prior to
May 1 of each year (for purposes of clarification, the interest payable no later
than fifteen (15) days prior to May 1, 2012 shall be with respect to the period
ending July 31, 2012) provided that each Holder agrees that Advance Interest
Amounts shall be disbursed by the Trustee in equal amounts quarterly on each
date that would be an Interest Payment Date following the Modification Period
commencing on July 30, 2009 and as otherwise set forth in this Section 1.14
(except in the case of the Interest Period ending on July 31, 2012, in which
instance all Advance Interest Amounts shall be disbursed to the
Holders).  Further, following the Modification Period, the Company
further promises to pay interest on said principal sum from August 1, 2012, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, quarterly in arrears on January 30, April 30, July 30 and
October 30 of each year, commencing on October 30, 2012, or if any such day is
not a Business Day, then such payment shall be paid on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after such Interest Payment Date
until such next succeeding Business Day), except that, if such Business Day
falls in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case, with the same force and effect
as if made on the Interest Payment Date, at a fixed rate equal to the applicable
Fixed Rate through the Interest Payment Date occurring in April 2016 (the “Fixed Rate Period”), and
thereafter, the Company further promises to pay interest on said principal sum
at a variable rate equal to LIBOR plus 2.95% per annum, until the principal
hereof is paid or duly provided for or made available for payment; provided, further, that any
overdue principal, premium, if any, and any overdue installment of interest
shall bear Additional Interest at a fixed rate equal to the applicable Fixed
Rate then in effect through the Interest Payment Date occurring in April 2016
and thereafter at a variable rate equal to LIBOR plus 2.95% per annum (to the
extent that the payment of such interest shall be legally enforceable),
compounded quarterly, from the dates such amounts are due until they are paid or
made available for payment, and such interest shall be payable on
demand.

     

    
      
         


      

      
        17

        
          

        

      

      
         


      

    

     

    If the
Company elects to redeem this Security in whole or in part during the
Modification Period, the Advance Interest Amount paid by the Company for the
year in which such redemption shall occur shall be credited dollar for dollar
against and shall reduce, on a pro-rata basis (based on the number of days
remaining in the Interest Period during which such redemption shall occur), the
amount which would otherwise be due and payable to holders of this Security from
the Company upon such redemption.

     

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


    
      
         


      

      
        18

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

    For
information regarding the “issue price,” “issue date,” the amount of “original
issue discount” and “yield to maturity” for U.S. federal income tax purposes,
please contact David Kalish at
davidk@brtrealty.com.

     

    [FORM
OF REVERSE OF SECURITY]

     

    This
Security is one of a duly authorized issue of securities of the Company (the
“Securities”) issued
under the Junior Subordinated Indenture, dated as of May 26, 2009 (the “Indenture”), between the Company and
The Bank of New York Mellon, a New York banking corporation, as Trustee (in such
capacity, the “Trustee” which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee, the holders of Senior Debt and the Holders of the Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.

     

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

     

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

     

    
      
         


      

      
        19

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

    As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is restricted to transfers to (i) the Company or
an Affiliate thereof, (ii) “Qualified Institutional Buyers” (as defined in Rule
144A under the Securities Act of 1933, as amended (the “Securities Act”)), (iii)
outside the United States in an offshore transaction in accordance with
Regulation S under the Securities Act, (iv) pursuant to an effective
registration statement under the Securities Act or (v) pursuant to another
exemption from registration under the Securities Act and, in the case of clauses
(ii), (iii), (iv) or (v), a person whom the Company reasonably believes also is
a “Qualified Purchaser” (as defined in Section 2(a)(51) of the Investment
Company Act of 1940, as amended, and is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar and duly executed by, the Holder hereof or
such Holder’s attorney duly authorized in writing, and thereupon one or more new
Securities, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.

     

    
      
         


      

      
        20

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

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

     

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

     

    IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed on
this _____ day of May, 2009.

     

    
      
        
          
            	
                    BRT
      Realty
      Trust

                  
	 
	
                    By:

                  	 
      
	 
      	
                    Name:

                  
	 
      	
                    Title:

                  


          

        

      

    

     

    (b)                            Restricted
Legend.

     

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

     

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

     

    
      
         


      

      
        21

        
          

        

      

      
         


      

    

     

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

     

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

     

    THE
HOLDER OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY OR AN AFFILIATE THEREOF, (II) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS
DEFINED IN RULE 144A OF THE SECURITIES ACT), (III) OUTSIDE THE UNITED STATES
IN  AN OFFSHORE TRANSACTION IN  ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES  ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, OR (V) PURSUANT TO ANOTHER EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND, IN THE CASE OF CLAUSES II, III, IV,
OR V, TO A PERSON WHOM THE ISSUER REASONABLY BELIEVES ALSO IS A “QUALIFIED
PURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACT OF
1940, AS AMENDED, AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANY SECURITIES
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.


    
      
         


      

      
        22

        
          

        

      

      
         


      

    

     

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

     

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

     

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

     

    (c)                            Form
of Trustee’s Certificate of Authentication.

     

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

     

    
      
         


      

      
        23

        
          

        

      

      
         


      

    

    

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

       

      Dated:
______________, 2009

       

      
        
          	
                  The
      Bank of New York Mellon, not in its individual 
capacity, but solely as
      Trustee

                   

                
	
                  By:

                	 
      
	 
      	
                  Authorized
      Signatory

                


        

      

       

      (d)               Temporary
Securities.

       

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

       

      (ii)           If
temporary Securities are issued, the Company will cause definitive Securities to
be prepared without unreasonable delay.  After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for that purpose without charge to the
Holder.  Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of any authorized
denominations having the same Original Issue Date and Stated Maturity and having
the same terms as such temporary Securities.  Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.

       

      (e)               Definitive
Securities.

       

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


      
        
           


        

        
          24

          
            

          

        

        
           


        

      


      3.

       

      The
Securities

       

      (a)               Payment
of Principal and Interest.

       

      (i)           The
unpaid principal amount of the Securities shall bear interest at the applicable
Fixed Rate through the Interest Payment Date occurring in April 2016 (the “Fixed Rate Period”) and
thereafter at a variable rate equal to LIBOR plus 2.95%  per annum
until paid or duly provided for, such interest to accrue from the Original Issue
Date or from the most recent Interest Payment Date to which interest has been
paid or duly provided for.  Any overdue principal, premium, if any,
and any overdue installment of interest shall bear Additional Interest at a
fixed rate equal to the applicable Fixed Rate per annum during the Fixed Rate
Period and thereafter at a variable rate equal to LIBOR plus 2.95% per annum
compounded quarterly from the dates such amounts are due until they are paid or
funds for the payment thereof are made available for payment.

       

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

       

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

       

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


      
        
           


        

        
          25

          
            

          

        

        
           


        

      


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

       

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

       

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

       

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

       

      (b)               Denominations.

       

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


      
        
           


        

        
          26

          
            

          

        

        
           


        

      


      (c)               Execution,
Authentication, Delivery and Dating.

       

      (i)           At
any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities in an aggregate principal amount
(including all then Outstanding Securities) not in excess of Fifty-Eight Million
Three Hundred Thousand Dollars ($58,300,000) executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities.  In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:

       

      a copy of
any Board Resolution relating thereto; and

       

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

       

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

       

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

      

        
          
             


          

          
            27

            
              

            

          

          
             


          

        

      

       

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


      (d)               Global
Securities.

       

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

       

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

       

      (iii)         If
any Global Security is to be exchanged for other Securities or canceled in part,
or if another Security is to be exchanged in whole or in part for a beneficial
interest in any Global Security, then either (i) such Global Security shall be
so surrendered for exchange or cancellation as provided in this Article III or (ii)
the principal amount thereof shall be reduced or increased by an amount equal to
(x) the portion thereof to be so exchanged or canceled, or (y) the principal
amount of such other Security to be so exchanged for a beneficial interest
therein, as the case may be, by means of an appropriate adjustment made on the
records of the Securities Registrar, whereupon the Trustee, in accordance with
the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its
records.  Upon any such surrender or adjustment of a Global Security
by the Depositary, accompanied by registration instructions, the Company shall
execute and the Trustee shall authenticate and deliver any Securities issuable
in exchange for such Global Security (or any portion thereof) in accordance with
the instructions of the Depositary.  The Trustee shall not be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.


      
        
           


        

        
          28

          
            

          

        

        
           


        

      


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

       

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

       

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

       

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

       

      (e)               Registration,
Transfer and Exchange Generally.

       

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


      
        
           


        

        
          29

          
            

          

        

        
           


        

      


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

       

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

       

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

       

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

       

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

       

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

       

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

       

      (ix)          The
Securities may only be transferred to (i) the Company, (ii) a “qualified
institutional  buyer” (as defined in Rule 144A of the Securities Act),
(iii) outside the United States in an offshore transaction in accordance with
Regulation S under the Securities Act, (iv) pursuant to an effective
registration statement under the Securities Act or (v) pursuant to another
exemption from registration under the Securities Act and, in the case of clauses
(ii), (iii), (iv) or (v), to a Person whom the Company reasonably believes is
also a “Qualified Purchaser” as such term is defined in Section 2(a)(51) of the
Investment Company Act..


      
        
           


        

        
          30

          
            

          

        

        
           


        

      


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

       

      (f)               Mutilated,
Destroyed, Lost and Stolen Securities.

       

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

       

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

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (g)               Persons
Deemed Owners.

       

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

       

      (h)               Cancellation.

       

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

       

      (i)               Reserved.

       

      (j)               Reserved.

       

      (k)               Agreed
Tax Treatment.

       

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

       

      (ii)          Any
and all payments by or for the account of the Holders, or in respect of the
Securities, shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding U.S.
“backup withholding” and any net income taxes and franchise taxes imposed on (or
measured by) net income imposed on any Holder, or any other recipient of any
payment to be made by or on account of any obligation of the Company hereunder
as a result of a present or former connection between such Person and the
jurisdiction imposing such tax levy, impost or withholding or any political
subdivision or taxing authority thereof or therein, other than any such
connection arising solely from such Holder having executed, delivered or
performed its obligations or received a payment under, or enforced, the
Securities (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the
Securities being hereinafter referred to as “Taxes”).  If any
Holder shall be required by law to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Security, (i) the sum payable
by the Company shall be increased as may be necessary so that after the Company
and such Holder, as the case may be, have made all required deductions and
withholdings (including deductions and withholdings applicable to additional
sums payable under this Section 3.11) such
Holder receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) the Company shall make all such
deductions or withholdings, and (iii) the Company shall pay the full amount
deducted or withheld to the relevant taxation authority or other authority in
accordance with applicable law.


      
        
           


        

        
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      (iii)         In
addition, the Company shall pay to the relevant taxing authority in accordance
with applicable law, and indemnify and hold the Holders harmless from, any
present or future stamp, documentary, excise, property or similar taxes, charges
or levies that arise from any payment made hereunder or under the Securities or
from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Indenture or the Securities (hereinafter referred to as
“Other
Taxes”).

       

      (iv)         The
Company shall indemnify each Holder for and hold each Holder harmless against
the full amount of Taxes and Other Taxes, and for the full amount of Taxes and
Other Taxes of any kind imposed by any jurisdiction on amounts payable under
this Section 3.11,
imposed on or paid by any such Holder and any liability (including penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within thirty (30) days from the
date any such Holder makes written demand therefor.

       

      (v)          Within
thirty (30) days after the date of any payment of Taxes, the Company shall
furnish to any such Holder the original or a certified copy of a receipt
evidencing such payment.

       

      (l)               CUSIP
Numbers.

       

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

       

      4.

       

      Satisfaction
and Discharge

       

      (a)               Satisfaction
and Discharge of Indenture.

       

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


      
        
           


        

        
          33

          
            

          

        

        
           


        

      


      (i)           either

       

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

       

      all such
Securities not theretofore delivered to the Trustee for
cancellation

       

      have
become due and payable, or

       

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

       

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

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (b)               Application
of Trust Money.

       

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

       

      5.

       

      Remedies

      (a)               Events
of Default.

       

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

       

      (i)           default
in the payment of any interest upon any Security, including any Additional
Interest in respect thereof, when it becomes due and payable, and continuance of
such default (a) during the Modification Period, for a period of three (3) days
and (b) following the Modification Period, for a period of thirty (30)
days;

       

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

       

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

       

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


      
        
           


        

        
          35

          
            

          

        

        
           


        

      


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

       

      (b)               Acceleration
of Maturity; Rescission and Annulment.

       

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

       

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

       

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

       

      all
overdue installments of interest on all Securities,

       

      any
accrued Additional Interest on all Securities,

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (c)               Collection of
Indebtedness and Suits for Enforcement by Trustee.

       

      (i)           The
Company covenants that if:

       

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

       

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

       

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

       

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

       

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

       

      (d)               Trustee
May File Proofs of Claim.

       

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


      
        
           


        

        
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      (e)               Trustee
May Enforce Claim Without Possession of Securities.

       

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

       

      (f)               Application
of Money Collected.

       

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

       

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

       

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

       

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

       

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

       

      (g)               Limitation
on Suits.

       

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

       

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

       

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


      
        
           


        

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

       

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

       

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

       

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

       

      (h)               Unconditional
Right of Holders to Receive Principal, Premium, if any, and
Interest.

       

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

       

      (i)               Restoration
of Rights and Remedies.

       

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

       

      (j)               Rights
and Remedies Cumulative.

       

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


      
        
           


        

        
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      (k)               Delay
or Omission Not Waiver.

       

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

       

      (l)               Control
by Holders.

       

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

       

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

       

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

       

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

       

      (m)               Waiver
of Past Defaults.

       

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

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (n)               Undertaking
for Costs.

       

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

       

      (o)               Waiver
of Usury, Stay or Extension Laws.

       

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

       

      6.

       

      The
Trustee

      (a)               Corporate
Trustee Required.

       

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


      
        
           


        

        
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      (b)               Certain
Duties and Responsibilities.

       

      Except
during the continuance of an Event of Default:

       

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

       

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

       

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

       

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

       

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

       

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

       

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


      
        
           


        

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

       

      (c)               Notice
of Defaults.

       

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

       

      (d)               Certain
Rights of Trustee.

       

      Subject
to the provisions of Section
6.2:

       

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

       

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


      
        
           


        

        
          43

          
            

          

        

        
           


        

      


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

       

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

       

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

       

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

       

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

       

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

       

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

       

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


      
        
           


        

        
          44

          
            

          

        

        
           


        

      


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

       

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

       

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

       

      (e)               May
Hold Securities.

       

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

       

      (f)               Compensation;
Reimbursement; Indemnity.

       

      (i)           The
Company agrees:

       

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

       

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

       

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


      
        
           


        

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

       

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

       

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

       

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

       

      (g)               Resignation
and Removal; Appointment of Successor.

       

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

       

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

       

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

       

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


      
        
           


        

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

       

      (h)               Acceptance
of Appointment by Successor.

       

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

       

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

       

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

       

      (i)               Merger,
Conversion, Consolidation or Succession to Business.

       

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


      
        
           


        

        
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      (j)               Not
Responsible for Recitals or Issuance of Securities.

       

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

       

      (k)               Appointment
of Authenticating Agent.

       

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

       

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

       

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


      
        
           


        

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

       

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

       

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

       

      Dated:

       

      
        
          	
                  The
      Bank of New York Mellon, not in its individual 

                  capacity,
      but solely as Trustee

                   

                
	
                  By:

                	 
      
	 
      	
                  Authenticating
      Agent

                   

                
	
                  By:

                	 
      
	 
      	
                  Authorized
      Signatory

                


        

      

       

      7.

       

      Holder’s
Lists and Reports by Company

       

      (a)               Company
to Furnish Trustee Names and Addresses of Holders.

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (b)               Preservation
of Information, Communications to Holders.

       

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

       

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

       

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

       

      (c)               Reports
by Company.

       

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

       

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


      
        
           


        

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

       

      8.

       

      No
Consolidation, Merger, Conveyance, Transfer or Lease

       

      (a)               Company
May Consolidate, Etc., Only on Certain Terms.

       

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

       

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

       

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

       

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


      
        
           


        

        
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      (b)               Successor
Company Substituted.

       

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

       

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

       

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

       

      9.

       

      Supplemental
Indentures

       

      (a)               Supplemental
Indentures without Consent of Holders.

       

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

       

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

       

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

       

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


      
        
           


        

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

       

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

       

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

       

      (b)               Supplemental
Indentures with Consent of Holders.

       

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

       

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

       

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

       

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


      
        
           


        

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

     

    (c)                            Execution
of Supplemental Indentures.

     

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

     

    (d)                            Effect
of Supplemental Indentures.

     

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

     

    (e)                            Reference
in Securities to Supplemental Indentures.

     

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

     

    10.

     

    Covenants

     

    (a)                            Payment
of Principal, Premium, if any, and Interest.

     

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

     

    
      
        
        

      

      
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    (b)                            Money
for Security Payments to be Held in Trust.


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

     

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

     

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

     

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

     

    (c)                            Statement
as to Compliance.

     

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

     

    
      
        
        

      

      
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    (d)                            Calculation
Agent.

     

    (i)           The
Company hereby agrees that for so long as any of the Securities remain
Outstanding, there will at all times be an agent appointed to calculate LIBOR in
respect of each Interest Payment Date in accordance with the terms of Schedule A (the
“Calculation Agent”).
 The Company has
initially appointed the Trustee as Calculation Agent for purposes of determining
LIBOR for each Interest Payment Date.  The Calculation Agent may be
removed by the Company at any time.  If the Calculation Agent is
unable or unwilling to act as such or is removed by the Company, the Company
will promptly appoint as a replacement Calculation Agent the London office of a
leading bank which is engaged in transactions in Eurodollar deposits in the
international Eurodollar market and which does not control or is not controlled
by or under common control with the Company or its Affiliates.  The
Calculation Agent may not resign its duties without a successor having been duly
appointed.

     

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

     

    (e)                            Additional
Covenants.

     

    (i)           The
Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing, in each case it shall not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company’s Equity
Interests, (ii) vote in favor of or permit or otherwise allow any of its
Subsidiaries to declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to or otherwise
retire, any shares of any such Subsidiary’s preferred stock or other Equity
Interests entitling the holders thereof to a stated rate of return (for the
avoidance of doubt, whether such preferred stock or other Equity Interests are
perpetual or otherwise), or (iii) make any payment of principal of or any
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects
with or junior in interest to the Securities.

     

    
      
        
        

      

      
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    (ii)           The
Company also covenants and agrees with each Holder of Securities that if (i) the
Company shall determine not to be treated as a REIT during the Modification
Period, the Company shall not declare or pay any dividend or distribution on any
of the Company’s Equity Interests, and (ii) if the Company shall remain a REIT,
the Company shall be permitted to declare or pay any dividends or distributions
on any of the Company’s Equity Interests during the Modification Period solely
(y) in accordance with the Revenue Procedure for taxable years ended 2008 and
2009 and (z) for taxable years after 2009 either (1) to the extent necessary to
maintain its status as a REIT and avoid incurrence of any excise taxes or (2) to
distribute capital gains, if any, and in either case in compliance with the
Revenue Procedure, if then still in effect.

     

    (f)                            Waiver
of Covenants.

     

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

     

    (g)                            Treatment
of Securities.

     

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

     

    (h)                            Inspection
of Books and Records.

     

    If the
Company is no longer subject to the reporting requirements of the Exchange Act
and if an Event of Default has occurred and is continuing under his Indenture,
the Company shall permit the Holders to examine the books and records of account
of the Company and its Subsidiaries (and to make copies thereof and extracts
therefrom) and to discuss the affairs, finances and accounts of such Persons
with, and to be advised as to the same by, its officers, all at such reasonable
times and intervals during normal business hours as the Holders may reasonably
request, provided, that
prior to any such examination by the Holders, the Company and the Holders shall
have entered into a commercially reasonable confidentiality
agreement.  The Holders shall use good faith efforts to coordinate
such inspections so as to minimize the interference with and disruption to the
Company’s normal business operations.

     

    
      
        
        

      

      
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    11.

     

    Redemption
of Securities

     

    (a)                            Optional
Redemption.

     

    The
Company may, at its option, redeem the Securities in whole at any time or in
part from time to time, at a Redemption Price equal to one hundred percent
(100%) of the principal amount thereof (or of the redeemed portion thereof, as
applicable), together, in the case of any such redemption, with accrued and
unpaid interest, including any Additional Interest, through but excluding the
date fixed as the Redemption Date (the “Optional Redemption
Price”).  If the Company elects to redeem this Security in
whole or in part during the Modification Period, the Advance Interest Amount
paid by the Company for the year in which such redemption shall occur shall be
credited dollar for dollar against and shall reduce, on a pro-rata basis (based
on the number of days remaining in the Interest Period during which such
redemption shall occur), the amount which would otherwise be due and payable to
holders of this Security from the Company upon such redemption.

     

    (b)                            Reserved.

     

    (c)                            Election
to Redeem; Notice to Trustee.

     

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

     

    (d)                            Selection
of Securities to be Redeemed.

     

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

     

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

     

    
      
        
        

      

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

     

    (e)                            Notice
of Redemption.

     

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

     

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

     

     the
Redemption Date;

     

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

     

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

     

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

     

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

     

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

     

    
      
        
        

      

      
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    (f)                            Deposit
of Redemption Price.

     

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

     

    (g)                            Payment
of Securities Called for Redemption.

     

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

     

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

     

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

     

    12.

     

    Subordination
of Securities

     

    (a)                            Securities
Subordinate to Senior Debt.

     

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

     

    
      
        
        

      

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


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

     

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

     

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

     

    
      
        
        

      

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

     

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

     

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

     

    (c)                            Payment
Permitted If No Default.

     

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

     

    (d)                            Subrogation
to Rights of Holders of Senior Debt.

     

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

     

    
      
        
        

      

      
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    (e)                            Provisions
Solely to Define Relative Rights.

     

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

     

    (f)                            Trustee
to Effectuate Subordination.

     

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

     

    (g)                            No
Waiver of Subordination Provisions.

     

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

     

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

     

    
      
        
        

      

      
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    (h)                            Notice
to Trustee.

     

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

     

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

     

    (i)                            Reliance
on Judicial Order or Certificate of Liquidating Agent.

     

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

     

    
      
        
        

      

      
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    (j)                            Trustee
Not Fiduciary for Holders of Senior Debt.

     

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

     

    (k)                            Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s
Rights.

     

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

     

    (l)                            Article
Applicable to Paying Agents.

     

    If at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term “Trustee” as used in this
Article XII
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article XII in
addition to or in place of the Trustee.  For the avoidance of doubt,
neither the Company nor any Affiliate of the Company shall be permitted to serve
as a Paying Agent hereunder.

     

    * * *
*

     

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

     

    
      
        
        

      

      
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      EXECUTION
VERSION

    

     

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

     

    
      
        
          
            	 
      	
                    BRT
      Realty
      Trust

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Mark H. Lundy

                  
	 
      	 
      	
                    Name:

                  	
                    Mark
      H. Lundy

                  
	 
      	 
      	
                    Title:

                  	
                    Senior
      Vice President

                  
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                    The
      Bank of New York Mellon, as Trustee

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	
                    /s/ Michael Burack

                  
	 
      	 
      	
                    Name:

                  	
                    Michael
      Burack

                  
	 
      	 
      	
                    Title:

                  	
                    Assistant
      Treasurer