**Exhibit 10.25**

 

JUNIOR SUBORDINATED INDENTURE

 

between

 

 

GKK CAPITAL LP

 

 

and

 

 

JPMORGAN CHASEBANK, NATIONAL ASSOCIATION,

*asTrustee*

 

 

Dated as of January27, 2006

 

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JUNIOR SUBORDINATED INDENTURE,dated as of January 27, 2006, between GKK Capital LP, a Delaware limitedpartnership (the “Company”),and JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a national bankingassociation, as Trustee (in such capacity, the “Trustee”).

 

RECITALS OF THE COMPANY

 

WHEREAS, the Company has duly authorizedthe execution and delivery of this Indenture to provide for the issuance of itsunsecured junior subordinated deferrable interest notes (the “Securities”) issued to evidence loansmade to the Company of the proceeds from the issuance by Gramercy Capital TrustIII, a Delaware statutory trust (the “Trust”),of undivided preferred beneficial interests in the assets of the Trust (the “Preferred Securities”) and undividedcommon beneficial interests in the assets of the Trust (the “Common Securities” and, collectivelywith the Preferred Securities, the “TrustSecurities”), and to provide the terms and conditions upon which theSecurities are to be authenticated, issued and delivered; and

 

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

 

NOW, THEREFORE, this Indenture Witnesseth:

 

For and in considerationof the premises and the purchase of the Securities by the Holders thereof, itis mutually covenanted and agreed, for the equal and proportionate benefit ofall Holders of the Securities, as follows:

 

**ARTICLE IDEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION**

** **

SECTION 1.1         *Definitions*.

 

For all purposes of thisIndenture, except as otherwise expressly provided or unless the contextotherwise requires:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“Administrative Trustee” means, with respect to the Trust, eachPerson identified as an “Administrative Trustee” in the Trust Agreement, solelyin its capacity as Administrative Trustee of the Trust under the TrustAgreement and not in its individual capacity, or its successor in interest insuch capacity, or any successor Administrative Trustee appointed as thereinprovided.

 

“*Additional Interest*” means the interest,if any, that shall accrue on any amounts payable  on the Securities, the payment of which hasnot been made on the applicable Interest Payment Date and which shall accrue atthe rate per annum specified or determined as specified in such Security, ineach case to the extent legally enforceable.

 

“*Additional Tax Sums*” has the meaningspecified in Section 10.5.

 

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

 

“*Affiliate*” of any specified Person meansany other Person directly or indirectly controlling or controlled by or underdirect or indirect common control with such specified Person. For the purposesof this definition, “control,” when used with respect to any specified Person,means the power to direct the management and policies of such Person, directlyor indirectly, whether through the ownership of voting securities, by contractor otherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

 

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

 

“*Authenticating Agent*” means any Personauthorized by the Trustee pursuant to Section 6.11 to act on behalf ofthe Trustee to authenticate the Securities.

 

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

 

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

 

“*Board Resolution*” means a copy of aresolution certified by the Secretary or an Assistant Secretary of the Companyto have been duly adopted by the Board of

 

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

 

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

 

“*Calculation Agent*” has the meaningspecified in Section 10.4.

 

“*Commission*” has the meaning specified in Section7.3(c).

 

“*Common Securities*” has the meaningspecified in the first recital of this Indenture.

 

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

 

“*Company Request*” and “*Company Order*” mean, respectively, thewritten request or order signed in the name of the Company by its Chairman ofthe Board of Directors, its Vice Chairman of the Board of Directors, its ChiefExecutive Officer, President or a Vice President, and by its Chief FinancialOfficer, its Treasurer, an Assistant Treasurer, its Secretary or an AssistantSecretary, and delivered to the Trustee.

 

“*Corporate Trust Office*” means theprincipal office of the Trustee at which at any particular time its corporatetrust business shall be administered, which office at the date of thisIndenture is located at 600 Travis, 50th Floor, Houston, Texas 77019,Attn: Worldwide Securities Services—Gramercy Capital Trust III. **Initially, all notices and correspondenceshall be addressed to Mudassir Mohamed, telephone (713) 216-2826.**

 

“*Debt*” means, with respect to any Person,whether recourse is to all or a portion of the assets of such Person, whethercurrently existing or hereafter incurred and whether or not contingent andwithout duplication, (i) every obligation of such Person for money borrowed;(ii) every obligation of such Person evidenced by bonds, debentures, notes orother similar instruments, including obligations incurred in connection withthe acquisition of property, assets or businesses; (iii) every reimbursementobligation 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 purchaseprice of property or services (but excluding trade accounts payable or otheraccrued liabilities arising in the ordinary course of business); (v) everycapital lease obligation of such Person; (vi) all indebtedness of such Person,whether incurred on or prior to the date of this Indenture or thereafterincurred, for claims in respect of derivative products, including interestrate, foreign exchange rate and commodity forward contracts, options and swapsand similar arrangements; (vii) every obligation of the type referred to inclauses (i) through (vi) of another Person and all dividends of another Personthe payment of which, in either case, such Person has guaranteed or isresponsible or liable for, directly or indirectly, as obligor or otherwise; and(viii) any renewals, extensions, refundings, amendments or modifications of anyobligation of the type referred to in clauses (i) through (vii).

 

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“*Defaulted Interest*” has the meaningspecified in Section 3.1.

 

“*Delaware Trustee*” means, with respect tothe Trust, the Person identified as the “Delaware Trustee” in the TrustAgreement, solely in its capacity as Delaware Trustee of the Trust under theTrust Agreement and not in its individual capacity, or its successor ininterest in such capacity, or any successor Delaware Trustee appointed astherein provided.

 

“*Depositary*” means an organizationregistered as a clearing agency under the Exchange Act that is designated asDepositary by the Company or any successor thereto. DTC will be the initialDepositary.

 

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

 

“*Distributions*” means amounts payable inrespect of the Trust Securities as provided in the Trust Agreement and referredto therein as “Distributions.”

 

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

 

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

 

“*EDGAR*” has the meaning specified in Section7.3(c).

 

“*Event of Default*” has the meaningspecified in Section 5.1.

 

“*Exchange Act*” means the SecuritiesExchange Act of 1934 or any statute successor thereto, in each case as amendedfrom time to time.

 

“*Expiration Date*” has the meaning specifiedin Section 1.4.

 

“*Extension Period*” has the meaningspecified in Section 3.9.

 

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

 

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

 

“*Global Security*” means a Security thatevidences all or part of the Securities, the ownership and transfers of whichshall be made through book entries by a Depositary.

 

“*Government Obligation*” means (a) anysecurity that is (i) a direct obligation of the United States of America ofwhich 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 anagency or instrumentality of the United States of America or the payment ofwhich is unconditionally

 

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guaranteed as a full faith and credit obligation by the United Statesof America, which, in either case (i) or (ii), is not callable or redeemable atthe option of the issuer thereof, and (b) any depositary receipt issued by abank (as defined in Section 3(a)(2) of the Securities Act) as custodian withrespect to any Government Obligation that is specified in clause (a) above andheld by such bank for the account of the holder of such depositary receipt, orwith respect to any specific payment of principal of or interest on anyGovernment Obligation that is so specified and held, *provided* that (except as required by law) such custodian isnot authorized to make any deduction from the amount payable to the holder ofsuch depositary receipt from any amount received by the custodian in respect ofthe Government Obligation or the specific payment of principal or interestevidenced by such depositary receipt.

 

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

 

“*Indenture*” means this instrument asoriginally executed or as it may from time to time be amended or supplementedby one or more amendments or indentures supplemental hereto entered intopursuant to the applicable provisions hereof.

 

“*Interest Payment Date*” means January 30, April 30, July 30 and October 30 of each year,commencing on April 30, 2006, during the term of this Indenture.

 

“*Investment Company Act*” means theInvestment Company Act of 1940 or any successor statute thereto, in each caseas amended from time to time.

 

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

 

“*LIBOR*” has the meaning specified in ScheduleA.

 

“*LIBOR Business Day*” has the meaningspecified in Schedule A.

 

“*LIBOR Determination Date*” has the meaningspecified in Schedule A.

 

“*Liquidation Amount*” has the meaningspecified in the Trust Agreement.

 

“*Maturity*,” when used with respect to any Security, means the date onwhich the principal of such Security or any installment of principal becomesdue and payable as therein or herein *provided,*whether at the Stated Maturity or by declaration of acceleration, call forredemption or otherwise.

 

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

 

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“*Officers’ Certificate*” means a certificatesigned by the Chairman of the Board, a Vice Chairman of the Board, the ChiefExecutive Officer, the President or a Vice President, and by the ChiefFinancial Officer, the Treasurer, an Assistant Treasurer, the Secretary or anAssistant Secretary, of the Company and delivered to the Trustee.

 

“*Operative Documents*” means the TrustAgreement, the Indenture, the Purchase Agreements and the Securities.

 

“*Opinion of Counsel*” means a writtenopinion of counsel, who may be counsel for or an employee of the Company or anyAffiliate of the Company.

 

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

 

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

 

“*Outstanding*” means, when used in referenceto any Securities, as of the date of determination, all Securities theretoforeauthenticated and delivered under this Indenture, except:

 

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

 

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

 

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

 

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

 

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notwithstanding theownership by the Company or an Affiliate of any beneficial interest in theTrust.

 

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

 

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

 

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

 

“*Preferred Securities*” has the meaningspecified in the first recital of this Indenture.

 

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

 

“*Proceeding*” has the meaning specified in Section12.2.

 

“*Property Trustee*” means the Personidentified as the “Property Trustee” in the Trust Agreement, solely in itscapacity as Property Trustee of the Trust under the Trust Agreement and not inits individual capacity, or its successor in interest in such capacity, or anysuccessor Property Trustee appointed as therein provided.

 

“*Purchase Agreements*” means the twoagreements, each dated as of the date hereof, between the Company and the Trustand the Purchaser(s) named therein.

 

“*Redemption Date*” means, when used withrespect to any Security to be redeemed, the date fixed for such redemption byor pursuant to this Indenture.

 

“*Redemption Price*” means, when used withrespect to any Security to be redeemed, in whole or in part, the SpecialRedemption Price or the Optional Redemption Price, as applicable, at which suchSecurity or portion thereof is to be redeemed as fixed by or pursuant to thisIndenture.

 

“*Reference Banks*” has the meaning specifiedin Schedule A.

 

“*Regular Record Date*” for the interestpayable on any Interest Payment Date with respect to the Securities means thedate that is fifteen (15) days preceding such Interest Payment Date (whether ornot a Business Day).

 

“*Responsible Officer*” means, when used withrespect to the Trustee, the officer in the Worldwide Securities Servicesdepartment of the Trustee having direct responsibility for the

 

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administration of this Indenture.

 

“*Rights Plan*” means a plan of the Companyproviding for the issuance by the Company to all holders of its limitedpartnership interests of rights entitling the holders thereof to subscribe foror purchase shares of any class or series of limited partnership interests ofthe Company which rights (i) are deemed to be transferred with such shares ofsuch limited partnership interests and (ii) are also issued in respect offuture issuances of such limited partnership interests, in each case until theoccurrence of a specified event or events.

 

“*Securities*” or “*Security*” meansany debt securities or debt security, as the case may be, authenticated anddelivered under this Indenture.

 

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

 

“*Securities Register*” and “*Securities Registrar*” have the respectivemeanings specified in Section 3.5.

 

“*Senior Debt*” means the principal of andany premium and interest on (including interest accruing on or after the filingof any petition in bankruptcy or for reorganization relating to the Company,whether or not such claim for post-petition interest is allowed in suchproceeding) all Debt of the Company, whether incurred on or prior to the dateof this Indenture or thereafter incurred, unless it is provided in theinstrument creating or evidencing the same or pursuant to which the same isoutstanding, that such obligations are not superior in right of payment to theSecurities issued under this Indenture;*provided*that Senior Debtshall not be deemed to include any other debt securities (and guarantees, ifany, in respect of such debt securities) issued to any trust other than theTrust (or a trustee of any such trust), partnership or other entity affiliatedwith the Company that is a financing vehicle of the Company (a “financingentity”) in connection with the issuance by such financing entity of equitysecurities or other securities pursuant to an instrument that ranks *pari passu* with or junior in right ofpayment to this Indenture.

 

“*Special Event*” means the occurrence of anInvestment Company Event or a Tax Event.

 

“*Special Record Date*” for the payment ofany Defaulted Interest means a date fixed by the Trustee pursuant to Section3.1.

 

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

 

“*Stated Maturity*” means January 30, 2036.

 

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

 

“*Tax Event*” means the receipt by theCompany of an Opinion of Counsel experienced in

 

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such matters to the effect that, as a result of (a) any amendment to orchange (including any announced prospective change) in the laws or anyregulations thereunder of the United States or any political subdivision ortaxing authority thereof or therein or (b) any judicial decision or anyofficial administrative pronouncement (including any private letter ruling,technical advice memorandum or field service advice) or regulatory procedure,including any notice or announcement of intent to adopt any such pronouncementor procedure (an “AdministrativeAction”), regardless of whether such judicial decision or AdministrativeAction is issued to or in connection with a proceeding involving the Company orthe Trust and whether or not subject to review or appeal, which amendment,change, judicial decision or Administrative Action is enacted, promulgated orannounced, in each case, on or after the date of issuance of the Securities,there is more than an insubstantial risk that (i) the Trust is, or will bewithin ninety (90) days of the date of such opinion, subject to United Statesfederal income tax with respect to income received or accrued on theSecurities, (ii) interest payable by the Company on the Securities is not, orwithin ninety (90) days of the date of such opinion, will not be, deductible bythe Company, in whole or in part, for United States federal income taxpurposes, or (iii) the Trust is, or will be within ninety (90) days of the dateof such opinion, subject to more than a deminimis amount of other taxes, duties or other governmental charges.

 

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

 

“*Trust Agreement*” means the Amended andRestated Trust Agreement executed and delivered by the Company, the PropertyTrustee, Chase Bank USA, National Association, as Delaware Trustee and the AdministrativeTrustees named therein, contemporaneously with the execution and delivery ofthis Indenture, for the benefit of the holders of the Trust Securities, asamended or supplemented from time to time.

 

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

 

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

 

“*Trust Securities*” has the meaningspecified in the first recital of this Indenture.

 

SECTION 1.2         *Compliance Certificate andOpinions*.

 

(a)           Upon any application or request bythe Company to the Trustee to take any action under any provision of thisIndenture, the Company shall, if requested by the Trustee, furnish to theTrustee 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 havebeen complied with and an Opinion of Counsel stating that in the opinion ofsuch counsel all such conditions precedent (including covenants compliance withwhich constitutes a condition precedent), if any, have been complied with.

 

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

 

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

 

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

 

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

 

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

 

SECTION 1.3         *Forms of DocumentsDelivered to Trustee*.

 

(a)           In any case where several matters arerequired 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 theopinion of, only one such Person, or that they be so certified or covered byonly one document, but one such Person may certify or give an opinion withrespect 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 orseveral documents.

 

(b)           Any certificate or opinion of anofficer of the Company may be based, insofar as it relates to legal matters,upon a certificate or opinion of, or representations by, counsel, unless suchofficer knows, or after reasonable inquiry should know, that the certificate oropinion or representations with respect to matters upon which his or hercertificate or opinion is based are erroneous. Any such certificate or Opinionof Counsel may be based, insofar as it relates to factual matters, upon acertificate or opinion of, or representations by, an officer or officers of theCompany stating that the information with respect to such factual matters is inthe possession of the Company, unless such counsel knows, or after reasonableinquiry should know, that the certificate or opinion or representations withrespect to such matters are erroneous.

 

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

 

(d)           Whenever, subsequent to the receiptby the Trustee of any Board Resolution, Officers’ Certificate, Opinion ofCounsel or other document or instrument, a clerical, typographical or otherinadvertent or unintentional error or omission shall be discovered therein, anew document or instrument may be substituted therefor in corrected form withthe 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 deliverythereof, such substitute document or instrument shall be deemed to have beenexecuted and/or delivered as of the date or dates required with respect to

 

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thedocument or instrument for which it is substituted. Without limiting thegenerality of the foregoing, any Securities issued under the authority of suchdefective document or instrument shall nevertheless be the valid obligations ofthe Company entitled to the benefits of this Indenture equally and ratably withall other Outstanding Securities.

 

SECTION 1.4         *Acts of Holders*.

 

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

 

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

 

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

 

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

 

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

 

(f)            Except as set forth in paragraph (g)of this Section 1.4, the Company may set any day as a record date forthe purpose of determining the Holders of Outstanding Securities entitled togive, make or take any request, demand, authorization, direction, notice,consent, waiver or other action provided or permitted by this Indenture to begiven, made or taken by Holders of 

 

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Securities.If any record date is set pursuant to this paragraph, the Holders ofOutstanding Securities on such record date, and no other Holders, shall beentitled to take the relevant action, whether or not such Holders remainHolders after such record date; *provided*that no such action shall be effective hereunder unless taken on or prior tothe applicable Expiration Date (as defined in Section 1.4(h)) by Holdersof the requisite principal amount of Outstanding Securities on such record date.Nothing in this paragraph shall be construed to prevent the Company fromsetting a new record date for any action for which a record date has previouslybeen set pursuant to this paragraph (whereupon the record date previously setshall automatically and with no action by any Person be canceled and of noeffect). Promptly after any record date is set pursuant to this paragraph, theCompany, at its own expense, shall cause notice of such record date, theproposed action by Holders and the applicable Expiration Date to be given tothe Trustee in writing and to each Holder of Securities in the manner set forthin Section 1.6.

 

(g)           The Trustee may set any day as arecord date for the purpose of determining the Holders of OutstandingSecurities entitled to join in the giving or making of (i) any Notice ofDefault, (ii) any declaration of acceleration or rescission or annulmentthereof referred to in Section 5.2, (iii) any request to instituteproceedings referred to in Section 5.7(b) or (iv) any direction referredto in Section 5.12. If any record date is set pursuant to thisparagraph, the Holders of Outstanding Securities on such record date, and noother Holders, shall be entitled to join in such notice, declaration, requestor direction, whether or not such Holders remain Holders after such recorddate; *provided* that no suchaction shall be effective hereunder unless taken on or prior to the applicableExpiration Date by Holders of the requisite principal amount of OutstandingSecurities on such record date. Nothing in this paragraph shall be construed toprevent the Trustee from setting a new record date for any action for which arecord date has previously been set pursuant to this paragraph (whereupon therecord date previously set shall automatically and with no action by any Personbe canceled and of no effect). Promptly after any record date is set pursuantto this paragraph, the Trustee, at the Company’s expense, shall cause notice ofsuch record date, the proposed action by Holders and the applicable ExpirationDate to be given to the Company in writing and to each Holder of Securities inthe manner set forth in Section 1.6.

 

(h)           With respect to any record date setpursuant to paragraph (f) or (g) of this Section 1.4, the party heretothat sets such record date may designate any day as the “*Expiration Date*” and from time to time maychange the Expiration Date to any earlier or later day; *provided* that no such change shall beeffective unless notice of the proposed new Expiration Date is given to theother party hereto in writing, and to each Holder of Securities in the mannerset 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 setpursuant to this Section 1.4, the party hereto that set such record dateshall be deemed to have initially designated the ninetieth (90th) day after such record date asthe Expiration Date with respect thereto, subject to its right to change theExpiration Date as provided in this paragraph. Notwithstanding the foregoing,no Expiration Date shall be later than the one hundred eightieth (180th) day after the applicablerecord date.

 

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

 

Any request, demand,authorization, direction, notice, consent, waiver, Act of Holders, or otherdocument provided or permitted by this Indenture to be made upon, given orfurnished to,

 

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or filed with:

 

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

 

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

 

SECTION 1.6         *Notice to Holders; Waiver*.

 

Where this Indentureprovides for notice to Holders of any event, such notice shall be sufficientlygiven (unless otherwise herein expressly provided) if in writing and mailed,first class, postage prepaid, to each Holder affected by such event to theaddress of such Holder as it appears in the Securities Register, not later thanthe 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 orirregularities in regular mail service or for any other reason, it shall beimpossible or impracticable to mail notice of any event to Holders when saidnotice 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 Trusteeshall be deemed to be a sufficient giving of such notice. In any case wherenotice 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 affectthe sufficiency of such notice with respect to other Holders. Where thisIndenture provides for notice in any manner, such notice may be waived inwriting by the Person entitled to receive such notice, either before or afterthe event, and such waiver shall be the equivalent of such notice. Waivers ofnotice by Holders shall be filed with the Trustee, but such filing shall not bea condition precedent to the validity of any action taken in reliance upon suchwaiver.

 

SECTION 1.7         *Effect of Headings andTable of Contents*.

 

The Article and Sectionheadings herein and the Table of Contents are for convenience only and shallnot affect the construction of this Indenture.

 

SECTION 1.8         *Successors and Assigns*.

 

This Indenture shall bebinding upon and shall inure to the benefit of any successor to the Company andthe Trustee, including any successor by operation of law. Except in connectionwith a transaction involving the Company that is permitted under ArticleVIII and pursuant to which the assignee agrees in writing to perform theCompany’s obligations hereunder, the Company shall not assign its obligationshereunder.

 

SECTION 1.9         *Separability Clause*.

 

If any provision in thisIndenture or in the Securities shall be invalid, illegal or

 

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unenforceable, the validity, legality and enforceability of theremaining provisions shall not in any way be affected or impaired thereby, andthere shall be deemed substituted for the provision at issue a valid, legal andenforceable provision as similar as possible to the provision at issue.

 

SECTION 1.10       *Benefits of Indenture*.

 

Nothing in this Indentureor in the Securities, express or implied, shall give to any Person, other thanthe parties hereto and their successors and assigns, the holders of Senior Debt,the Holders of the Securities and, to the extent expressly provided in Section5.2, Section 5.8, Section 5.9, Section 5.11, Section5.13, Section 9.2 and Section 10.7, the holders of PreferredSecurities, any benefit or any legal or equitable right, remedy or claim underthis Indenture.

 

SECTION 1.11       *Governing Law*.

 

**ThisIndenture and the rights and obligations of each of the Holders, the Companyand the Trustee shall be construed and enforced in accordance with and governedby the laws of the State of New York without reference to its conflict of lawsprovisions (other than Section 5-1401 of the General Obligations Law).**

 

SECTION 1.12       *Submission to Jurisdiction*.

 

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

 

SECTION 1.13       Non-Business Days.

 

If any Interest PaymentDate, Redemption Date or Stated Maturity of any Security shall not be aBusiness Day, then (notwithstanding any other provision of this Indenture orthe Securities) payment of interest, premium, if any, or principal or otheramounts in respect of such Security shall not be made on such date, but shallbe made on the next succeeding Business Day (and no interest shall accrue inrespect of the amounts whose payment is so delayed for the period from andafter such Interest Payment Date, Redemption Date or Stated Maturity, as thecase may be, until such next succeeding Business Day) except that, if suchBusiness Day falls in the next succeeding calendar year, such payment shall bemade on the immediately preceding Business Day, in each case with the sameforce and effect as if made on the Interest Payment Date or Redemption Date orat the Stated Maturity.

 

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**ARTICLE IISECURITY FORMS**

** **

SECTION 2.1         *Form of Security*.

 

Any Security issuedhereunder shall be in substantially the following form:

 

**GKKCAPITAL LP**

 

**FloatingRate Junior Subordinated Note due 2036**

 

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

 

GKK Capital LP, a limitedpartnership organized and existing under the laws of Delaware (hereinafter calledthe “Company,” which termincludes any successor Person under the Indenture hereinafter referred to), forvalue received, hereby promises to pay to JPMorgan Chase Bank, NationalAssociation, not in its individual capacity, but solely as Property Trustee forGramercy Capital Trust III, or registered assigns, the principal sum of FiftyOne Million Five Hundred Fifty Thousand Dollars ($51,550,000) **[*if the Security isa Global Security, then insert*— or such other principal amount represented hereby as may be set forthin the records of the Securities Registrar hereinafter referred to inaccordance with the Indenture]** on January 30, 2036. The Companyfurther promises to pay interest on said principal sum from January 27, 2006 orfrom the most recent Interest Payment Date to which interest has been paid orduly provided for, quarterly (subject to deferral as set forth herein) inarrears on January 30, April 30, July 30 and October 30 of each year,commencing April 30, 2006, or if any such day is not a Business Day, on thenext succeeding Business Day (and no interest shall accrue in respect of theamounts whose payment is so delayed for the period from and after such InterestPayment Date until such next succeeding Business Day), except that, if suchBusiness Day falls in the next succeeding calendar year, such payment shall bemade on the immediately preceding Business Day, in each case, with the sameforce and effect as if made on the Interest Payment Date, at a fixed rate equalto 7.65% per annum through the interest payment date in January 2016 (“FixedRate Period”) and thereafter at a variable rate equal to LIBOR plus 2.70%per annum, together with Additional Tax Sums, if any, as provided in Section10.5 of the Indenture, until the principal hereof is paid or duly providedfor or made available for payment; *provided*,*further*, that any overdueprincipal, premium, if any, or Additional Tax Sums and any overdue installmentof interest shall bear Additional Interest at a fixed rate equal to 7.65%through the interest payment date in January 2016 and thereafter at a variablerate equal to LIBOR plus 2.70% per annum (to the extent that the payment ofsuch interest shall be legally enforceable), compounded quarterly, from thedates such amounts are due until they are paid or made available for payment,and such interest shall be payable on demand.

 

During the Fixed RatePeriod, the amount of interest payable shall be computed on the basis of a360-day year of twelve 30-day months and the amount payable for any partialperiod shall be computed on the basis of the number of days elapsed in a360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period,the amount of interest payable for any Interest Payment Period will be computedon the basis of a 360-day year and the actual number

 

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of days elapsed in the relevant interest period. The interest sopayable, and punctually paid or duly provided for, on any Interest Payment Dateshall, as provided in the Indenture, be paid to the Person in whose name thisSecurity (or one or more Predecessor Securities) is registered at the close ofbusiness on the Regular Record Date for such interest installment. Any suchinterest not so punctually paid or duly provided for shall forthwith cease tobe payable to the Holder on such Regular Record Date and may either be paid tothe 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 paymentof such Defaulted Interest to be fixed by the Trustee, notice whereof shall begiven to Holders of Securities not less than ten (10) days prior to suchSpecial Record Date, or be paid at any time in any other lawful manner notinconsistent with the requirements of any securities exchange on which theSecurities may be listed, and upon such notice as may be required by suchexchange, all as more fully provided in the Indenture.

 

So long as no Event ofDefault has occurred and is continuing, the Company shall have the right, atany time and from time to time during the term of this Security, to defer thepayment of interest on this Security for a period of up to four (4) consecutive quarterly interestpayment periods (each such period, an “*ExtensionPeriod*”), during which Extension Period(s), no interest shall be dueand payable (except any Additional Tax Sums that may be due and payable). NoExtension Period shall end on a date other than an Interest Payment Date, andno Extension Period shall extend beyond the Stated Maturity of the principal ofthis Security. No interest shall be due and payable during an Extension Period(except any Additional Tax Sums that may be due and payable), except at the endthereof. At the end of any such Extension Period, the Company shall pay allinterest then accrued and unpaid on this Security. Prior to the termination ofany such Extension Period, the Company may further defer the payment ofinterest; *provided* that (i) allsuch previous and further extensions comprising such Extension Period do notexceed four (4) quarterly interest payment periods, (ii) no Extension Periodshall end on a date other than an Interest Payment Date and (iii) no ExtensionPeriod shall extend beyond the Stated Maturity of the principal of thisSecurity. Upon the termination of any such Extension Period and upon thepayment of all accrued and unpaid interest then due on any Interest PaymentDate, the Company may elect to begin a new Extension Period; *provided* that (i) such Extension Perioddoes not exceed four (4) quarterly interest payment periods, (ii) no ExtensionPeriod shall end on a date other than an Interest Payment Date and (iii) noExtension Period shall extend beyond the Stated Maturity of the principal ofthis Security. The Company shall notify in writing (i) the Security Holders atthe address provided upon request to the Securities Registrar, (ii) the Trusteeat the Corporate Trust Office and (iii) Taberna Capital Management, LLC, 450Park Avenue, New York, NY 10022, attn: Thomas Bogal, telephone: (212) 735-1490 ofits election to begin any such Extension Period at least thirty (30) days’prior to the next succeeding Interest Payment Date on which interest on thisSecurity would be payable but for such deferral.

 

During any such ExtensionPeriod, the Company shall not (i) declare or pay any dividends or distributionson, or redeem, purchase, acquire or make a liquidation payment with respect to,any of the Company’s limited partnership interests (ii) vote in favor of orpermit or otherwise allow any of its subsidiaries to declare or pay anydividends or distributions on, or redeem, purchase, acquire or make aliquidation payment with respect to or otherwise retire, any shares of suchsubsidiaries preferred stock (for the avoidance of doubt, whether suchpreferred stock is perpetual or otherwise) or (iii) make any payment ofprincipal of or any interest or premium, if any, on or repay, repurchase orredeem any debt securities of the Company that rank *pari passu*

 

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in all respects with orjunior in interest to this Security (other than (a) repurchases, redemptions orother acquisitions of limited partnership interests of the Company inconnection with (1) any employment contract, benefit plan or other similararrangement with or for the benefit of any one or more employees, officers, directorsor consultants, (2) a dividend reinvestment or limited partnership interestspurchase plan and (3) the issuance of limited partnership interests of theCompany (or securities convertible into or exercisable for such units oflimited partnership interests) as consideration in an acquisition transactionentered into prior to the applicable Extension Period, (b) as a result of anexchange or conversion of any class or series of the Company’s limitedpartnership interests (or any capital stock or limited partnership interests ofa Subsidiary of the Company) for any class or series of the Company’s limitedpartnership interests or of any class or series of the Company’s indebtednessfor any class or series of the Company’s limited partnership interests, (c) thepurchase of fractional interests in shares of the Company’s limited partnershipinterests pursuant to the conversion or exchange provisions of such limitedpartnership interests or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any Rights Plan, the issuance ofrights, limited partnership interests or other property under any Rights Plan,or the redemption or repurchase of rights pursuant thereto or (e) any dividendin the form of limited partnership interests, warrants, options or other rightswhere the dividend limited partnership interests or the limited partnershipinterests issuable upon exercise of such warrants, options or other rights isthe same stock as that on which the dividend is being paid or ranks *pari passu* with or junior to such limitedpartnership interests).

 

Payment of principal of,premium, if any, and interest on this Security shall be made in such coin orcurrency of the United States of America as at the time of payment is legal tenderfor payment of public and private debts. Payments of principal, premium, ifany, and interest due at the Maturity of this Security shall be made at thePlace of Payment upon surrender of such Securities to the Paying Agent, andpayments 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 inthe United States as may be designated in writing to the Paying Agent at leastten (10) Business Days prior to the date for payment by the Person entitledthereto unless proper written transfer instructions have not been received bythe relevant record date, in which case such payments shall be made by checkmailed to the address of such Person as such address shall appear in theSecurity Register. Notwithstanding the foregoing, so long as the Holder of thisSecurity is the Property Trustee, the payment of the principal of (and premium,if any) and interest (including any overdue installment of interest andAdditional Tax Sums, if any) on this Security will be made at such place and tosuch account as may be designated by the Property Trustee.

 

The indebtednessevidenced 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 allSenior Debt, and this Security is issued subject to the provisions of theIndenture with respect thereto. Each Holder of this Security, by accepting thesame, (a) agrees to and shall be bound by such provisions, (b) authorizes anddirects the Trustee on his or her behalf to take such actions as may benecessary 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 theacceptance of the subordination provisions contained herein and in theIndenture by each holder of Senior Debt, whether now outstanding or hereafterincurred, and waives reliance by each such holder upon said provisions.

 

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

 

**[FORMOF REVERSE OF SECURITY]**

 

This Security is one of aduly authorized issue of securities of the Company (the “*Securities*”) issued under the JuniorSubordinated Indenture, dated as of January 27, 2006 (the “*Indenture*”), between the Company andJPMorgan Chase Bank, National Association, as Trustee (in such capacity, the “*Trustee*,” which term includes anysuccessor trustee under the Indenture), to which Indenture and all indenturessupplemental thereto reference is hereby made for a statement of the respectiverights, limitations of rights, duties and immunities thereunder of the Company,the Trustee, the holders of Senior Debt, the Holders of the Securities and theholders of the Preferred Securities, and of the terms upon which the Securitiesare, and are to be, authenticated and delivered.

 

All terms used in thisSecurity that are defined in the Indenture or in the Amended and Restated TrustAgreement, dated as of January 27, 2006 (as modified, amended or supplementedfrom time to time, the “*Trust Agreement*”),relating to the Gramercy Capital Trust III (the “*Trust*”) among the Company, as Depositor, the Trustees namedtherein and the Holders from time to time of the Trust Securities issuedpursuant thereto, shall have the meanings assigned to them in the Indenture orthe Trust Agreement, as the case may be.

 

The Company may, on anyInterest Payment Date, at its option, upon not less than thirty (30) days’ normore than sixty (60) days’ written notice to the Holders of the Securities(unless a shorter notice period shall be satisfactory to the Trustee) on orafter January 30, 2011 and subject to the terms and conditions of Article XIof the Indenture, redeem this Security in whole at any time or in part fromtime to time at a Redemption Price equal to one hundred percent (100%) of theprincipal amount hereof, together, in the case of any such redemption, withaccrued interest, including any Additional Interest, through but excluding thedate fixed as the Redemption Date.

 

In addition, upon theoccurrence and during the continuation of a Special Event, the Company may, atits 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 periodshall be satisfactory to the Trustee), redeem this Security, in whole but notin part, subject to the terms and conditions of Article XI of theIndenture at a Redemption Price equal to one hundred seven and one half percent(107.5%) of the principal amount hereof, together, in the case of any suchredemption, with accrued interest, including any Additional Interest, throughbut excluding the date fixed as the Redemption Date.

 

In the event ofredemption of this Security in part only, a new Security or Securities for theunredeemed portion hereof will be issued in the name of the Holder hereof uponthe 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 OutstandingSecurities not previously called for redemption, by such method as the Trusteeshall deem fair and appropriate and which may provide for the selection forredemption of a portion of the principal amount of any Security.

 

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The Indenture permits,with certain exceptions as therein provided, the Company and the Trustee at anytime to enter into a supplemental indenture or indentures for the purpose ofmodifying in any manner the rights and obligations of the Company and of theHolders of the Securities, with the consent of the Holders of not less than amajority in principal amount of the Outstanding Securities. The Indenture alsocontains provisions permitting Holders of specified percentages in principalamount of the Securities, on behalf of the Holders of all Securities, to waivecompliance by the Company with certain provisions of the Indenture and certainpast defaults under the Indenture and their consequences. Any such consent orwaiver by the Holder of this Security shall be conclusive and binding upon suchHolder and upon all future Holders of this Security and of any Security issuedupon the registration of transfer hereof or in exchange herefor or in lieuhereof, whether or not notation of such consent or waiver is made upon thisSecurity.

 

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

 

As provided in theIndenture and subject to certain limitations therein set forth, the transfer ofthis Security is restricted to transfers to “Qualified Purchasers” (as suchterm is defined in the Investment Company Act of 1940, as amended, and isregistrable in the Securities Register, upon surrender of this Security forregistration of transfer at the office or agency of the Company maintained forsuch purpose, duly endorsed by, or accompanied by a written instrument oftransfer in form satisfactory to the Company and the Securities Registrar andduly executed by, the Holder hereof or such Holder’s attorney duly authorizedin writing, and thereupon one or more new Securities, of like tenor, ofauthorized denominations and for the same aggregate principal amount, will beissued to the designated transferee or transferees.

 

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

 

No service charge shallbe made for any such registration of transfer or exchange, but the Company mayrequire payment of a sum sufficient to cover any tax or other governmentalcharge payable in connection therewith.

 

The Company, the Trusteeand any agent of the Company or the Trustee may treat the Person in whose namethis Security is registered as the owner hereof for all purposes, whether ornot this Security be overdue, and neither the Company, the Trustee nor any suchagent shall be affected by notice to the contrary.

 

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

 

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indebtedness.

 

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

 

IN WITNESS WHEREOF, theCompany has caused this instrument to be duly executed on this             day of                ,20           .

 
|                             | GKK Capital LP |
|----------------------------------|----------------|
|                             |           |
|                             |           |
|                             | By:            |   |   |
|                             | Name:          |
|                             | Title:         |
|                             |           |
| SECTION 2.2 *Restricted Legend*. |           |

 

(a)           Any Security issued hereunder shallbear a legend in substantially the following form:

 

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

 

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

 

THE SECURITIESREPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPTFROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIESACT”), AND SUCH SECURITIES, AND ANY INTEREST THEREIN, MAY NOT BE OFFERED,

 

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SOLD OR OTHERWISETRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTIONTHEREFROM. EACH PURCHASER OF ANY SECURITIES IS HEREBY NOTIFIED THAT THE SELLEROF THE SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OFSECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.

 

THE HOLDER OF THESECURITIES REPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THECOMPANY THAT (A) SUCH SECURITIES MAY BE OFFERED, RESOLD OR OTHERWISETRANSFERRED ONLY (I) TO THE COMPANY OR (II) TO A PERSON WHOM THE SELLERREASONABLY BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51)OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), AND (B) THE HOLDER WILLNOTIFY ANY PURCHASER OF ANY SECURITIES FROM IT OF THE RESALE RESTRICTIONSREFERRED TO IN (A) ABOVE.THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERREDONLY 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 OFLESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE DEEMED TOBE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BYLAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCHSECURITIES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OFPRINCIPAL OF OR INTEREST ON SUCH SECURITIES, OR ANY INTEREST THEREIN, AND SUCHPURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN SUCHSECURITIES.

 

THE HOLDER OF THISSECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSOAGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUALRETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THEEMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”),OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANYPLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANYPLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN. ANY PURCHASEROR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVEREPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEEBENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICHSECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ONBEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USINGTHE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH

 

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PURCHASE.”

 

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

 

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

 

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

 

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

 

Dated:

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

 

SECTION 2.4         *Temporary Securities*.

 

(a)           Pending the preparation of definitiveSecurities, the Company may execute, and upon Company Order the Trustee shallauthenticate and deliver, temporary Securities that are printed, lithographed,typewritten, mimeographed or otherwise produced, in any denomination, substantiallyof the tenor of the definitive Securities in lieu of which they are issued andwith such appropriate insertions, omissions, substitutions and other variationsas the officers executing such Securities may determine, as evidenced by theirexecution of such Securities.

 

(b)           If temporary Securities are issued,the Company will cause definitive Securities to be prepared withoutunreasonable delay. After the preparation of definitive Securities, thetemporary Securities shall be exchangeable for definitive Securities uponsurrender of the temporary Securities at the office or agency of the Companydesignated for that purpose without charge to the Holder. Upon surrender forcancellation of any one or more temporary Securities, the Company shall executeand the Trustee shall authenticate and deliver in exchange therefor one or moredefinitive Securities of any authorized denominations having the same OriginalIssue Date and Stated Maturity and having the same terms as such temporarySecurities. Until so exchanged, the temporary Securities shall in all respectsbe entitled to the same benefits under this Indenture as definitive Securities.

 

SECTION 2.5         *Definitive Securities*.

 

The Securities issued onthe Original Issue Date shall be in definitive form. The definitive Securitiesshall be printed, lithographed or engraved, or produced by any combination ofthese methods, if required by any securities exchange on which the Securitiesmay be listed,

 

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on a steel engraved border or steel engraved borders or may be producedin any other manner permitted by the rules of any securities exchange on whichthe Securities may be listed, all as determined by the officers executing suchSecurities, as evidenced by their execution of such Securities.

 

**ARTICLE IIITHE SECURITIES**

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SECTION 3.1         *Payment of Principal andInterest*.

 

(a)           The unpaid principal amount of theSecurities shall bear interest at a fixed rate equal to 7.65% per annum throughthe interest payment date in January 2016 and thereafter at a variable rate ofLIBOR plus 2.70% per annum until paid or duly provided for, such interest toaccrue from the Original Issue Date or from the most recent Interest PaymentDate to which interest has been paid or duly provided for, and any overdueprincipal, premium, if any, or

 

Additional Tax Sums andany overdue installment of interest shall bear Additional Interest at the rateequal to a fixed rate equal to 7.65% per annum through the interest paymentdate in January 2016 and thereafter at a variable rate of LIBOR plus 2.70% perannum, compounded quarterly from the dates such amounts are due until they arepaid or funds for the payment thereof are made available for payment.

 

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

 

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

 

(i)            TheCompany may elect to make payment of any Defaulted Interest to the Persons inwhose names the Securities (or their respective Predecessor Securities) areregistered at the close of business on a Special Record Date for the payment ofsuch Defaulted Interest (a “SpecialRecord Date”), which shall be fixed in the following manner. At leastthirty (30) days prior to the date of the proposed payment, the Company shallnotify the Trustee in writing of the amount of Defaulted Interest proposed tobe paid on each Security and the date of the proposed payment, and at the sametime the Company shall deposit with the Trustee an amount of money equal to theaggregate amount proposed to be paid in respect of such Defaulted Interest orshall make

 

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arrangementssatisfactory to the Trustee for such deposit prior to the date of the proposedpayment, such money when deposited to be held in trust for the benefit of thePersons entitled to such Defaulted Interest. Thereupon the Trustee shall fix aSpecial Record Date for the payment of such Defaulted Interest, which shall benot more than fifteen (15) days and not less than ten (10) days prior to thedate of the proposed payment and not less than ten (10) days after the receiptby the Trustee of the notice of the proposed payment. The Trustee shallpromptly notify the Company of such Special Record Date and, in the name and atthe expense of the Company, shall cause notice of the proposed payment of suchDefaulted Interest and the Special Record Date therefor to be mailed, firstclass, postage prepaid, to each Holder of a Security at the address of suchHolder as it appears in the Securities Register not less than ten (10) daysprior to such Special Record Date. Notice of the proposed payment of suchDefaulted Interest and the Special Record Date therefor having been so mailed,such Defaulted Interest shall be paid to the Persons in whose names theSecurities (or their respective Predecessor Securities) are registered on suchSpecial Record Date; or

 

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

 

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

 

(e)           Payment of principal of, premium, ifany, and interest on the Securities shall be made in such coin or currency ofthe United States of America as at the time of payment is legal tender forpayment 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 Placeof Payment upon surrender of such Securities to the Paying Agent and paymentsof interest shall be made subject to such surrender where applicable, by wiretransfer at such place and to such account at a banking institution in theUnited States as may be designated in writing to the Paying Agent at least ten(10) Business Days prior to the date for payment by the Person entitled theretounless proper written transfer instructions have not been received by the relevantrecord date, in which case such payments shall be made by check mailed to theaddress of such Person as such address shall appear in the Security Register. Notwithstandingthe foregoing, so long as the holder of this Security is the Property Trustee,the payment of the principal of (and premium, if any) and interest (includingany overdue installment of interest and Additional Tax Sums, if any) on thisSecurity will be made at such place and to such account as may be designated bythe Property Trustee.

 

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(f)            The parties hereto acknowledge andagree that the holders of the Preferred Securities have certain rights todirect the Company to modify the Interest Payment Dates and correspondingRedemption Date and Stated Maturity of the Securities or a portion of theSecurities pursuant to the Purchase Agreement. In the event any suchmodifications are made to the Securities or a portion of the Securities,appropriate changes to the form of Security set forth in Article II hereofshall be made prior to the issuance and authentication of new or replacementSecurities. Any such modification of the Interest Payment Date andcorresponding Redemption Date and Stated Maturity with respect to anySecurities or tranche of Securities shall not require or be subject to theconsent of the Trustee.

 

(g)           Subject to the foregoing provisionsof this Section 3.1, each Security delivered under this Indenture upontransfer of or in exchange for or in lieu of any other Security shall carry therights to interest accrued and unpaid, and to accrue, that were carried by suchother Security.

 

SECTION 3.2         *Denominations*.

 

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

 

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

 

(a)           At any time and from time to timeafter the execution and delivery of this Indenture, the Company may deliverSecurities in an aggregate principal amount (including all then OutstandingSecurities) not in excess of Fifty-One Million Five Hundred Fifty ThousandDollars ($51,550,000) executed by the Company to the Trustee forauthentication, together with a Company Order for the authentication anddelivery of such Securities, and the Trustee in accordance with the CompanyOrder shall authenticate and deliver such Securities. In authenticating suchSecurities, and accepting the additional responsibilities under this Indenturein relation to such Securities, the Trustee shall be entitled to receive, andshall be fully protected in relying upon:

 

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

 

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

 

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(b)           The Securities shall be executed onbehalf of the Company by its Chairman of the Board, its Vice Chairman of theBoard, its Chief Executive Officer, its President or one of its VicePresidents. The signature of any of these officers on the Securities may be manualor facsimile. Securities bearing the manual or facsimile signatures ofindividuals who were at any time the proper officers of the Company shall bindthe Company, notwithstanding that such individuals or any of them have ceasedto hold such offices prior to the authentication and delivery of suchSecurities or did not hold such offices at the date of such Securities.

 

(c)           No Security shall be entitled to anybenefit under this Indenture or be valid or obligatory for any purpose, unlessthere appears on such Security a certificate of authentication substantially inthe form provided for herein executed by the Trustee by the manual signature ofone of its authorized signatories, and such certificate upon any Security shallbe conclusive evidence, and the only evidence, that such Security has been dulyauthenticated and delivered hereunder. Notwithstanding the foregoing, if anySecurity shall have been authenticated and delivered hereunder but never issuedand sold by the Company, and the Company shall deliver such Security to theTrustee for cancellation as provided in Section 3.8, for all purposes ofthis Indenture such Security shall be deemed never to have been authenticatedand delivered hereunder and shall never be entitled to the benefits of thisIndenture.

 

(d)           Each Security shall be dated the dateof its authentication.

 

SECTION 3.4         *Global Securities*.

 

(a)           Upon the election of the Holder afterthe Original Issue Date, which election need not be in writing, the Securitiesowned by such Holder shall be issued in the form of one or more GlobalSecurities registered in the name of the Depositary or its nominee. Each GlobalSecurity issued under this Indenture shall be registered in the name of theDepositary designated by the Company for such Global Security or a nomineethereof and delivered to such Depositary or a nominee thereof or custodiantherefor, and each such Global Security shall constitute a single Security forall purposes of this Indenture.

 

(b)           Notwithstanding any other provisionin this Indenture, no Global Security may be exchanged in whole or in part forregistered Securities, and no transfer of a Global Security in whole or in partmay be registered, in the name of any Person other than the Depositary for suchGlobal Security or a nominee thereof unless (i) such Depositary advises theTrustee and the Company in writing that such Depositary is no longer willing orable to properly discharge its responsibilities as Depositary with respect tosuch Global Security, and no qualified successor is appointed by the Companywithin ninety (90) days of receipt by the Company of such notice, (ii) suchDepositary ceases to be a clearing agency registered under the Exchange Act andno successor is appointed by the Company within ninety (90) days after obtainingknowledge of such event, (iii) the Company executes and delivers to the Trusteea Company Order stating that the Company elects to terminate the book-entrysystem through the Depositary or (iv) an Event of Default shall have occurredand be continuing. Upon the occurrence of any event specified in clause (i),(ii), (iii) or (iv) above, the Trustee shall notify the Depositary and instructthe Depositary to notify all owners of beneficial interests in such GlobalSecurity of the occurrence of such event and of the availability of Securitiesto such owners of beneficial interests requesting the same. The Trustee mayconclusively rely, and be protected in relying, upon the

 

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

 

(c)           If any Global Security is to beexchanged for other Securities or canceled in part, or if another Security isto be exchanged in whole or in part for a beneficial interest in any GlobalSecurity, then either (i) such Global Security shall be so surrendered forexchange or cancellation as provided in this Article III or (ii) theprincipal 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 principalamount of such other Security to be so exchanged for a beneficial interesttherein, as the case may be, by means of an appropriate adjustment made on therecords of the Securities Registrar, whereupon the Trustee, in accordance withthe Applicable Depositary Procedures, shall instruct the Depositary or itsauthorized 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 theTrustee shall authenticate and deliver any Securities issuable in exchange forsuch Global Security (or any portion thereof) in accordance with theinstructions of the Depositary. The Trustee shall not be liable for any delayin delivery of such instructions and may conclusively rely on, and shall befully protected in relying on, such instructions.

 

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

 

(e)           Securities distributed to holders ofBook-Entry Preferred Securities (as defined in the applicable Trust Agreement)upon the dissolution of the Trust shall be distributed in the form of one ormore Global Securities registered in the name of a Depositary or its nominee,and deposited with the Securities Registrar, as custodian for such Depositary,or with such Depositary, for credit by the Depositary to the respectiveaccounts of the beneficial owners of the Securities represented thereby (orsuch other accounts as they may direct). Securities distributed to holders ofPreferred Securities other than Book-Entry Preferred Securities upon thedissolution of the Trust shall not be issued in the form of a Global Securityor any other form intended to facilitate book-entry trading in beneficialinterests in such Securities.

 

(f)            The Depositary or its nominee, asthe registered owner of a Global Security, shall be the Holder of such GlobalSecurity for all purposes under this Indenture and the Securities, and ownersof beneficial interests in a Global Security shall hold such interests pursuantto the Applicable Depositary Procedures. Accordingly, any such owner’sbeneficial interest in a Global Security shall be shown only on, and thetransfer of such interest shall be effected only through, records maintained bythe Depositary or its nominee or its Depositary Participants. The SecuritiesRegistrar and the Trustee shall be entitled to deal with the Depositary for allpurposes of this Indenture relating to a Global Security (including the paymentof principal and interest thereon and the giving of instructions or directionsby owners of beneficial interests therein and the giving of notices) as thesole Holder of the Security and shall have no obligations to the

 

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ownersof beneficial interests therein. Neither the Trustee nor the SecuritiesRegistrar shall have any liability in respect of any transfers effected by theDepositary.

 

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

 

(h)           No holder of any beneficial interestin any Global Security held on its behalf by a Depositary shall have any rightsunder this Indenture with respect to such Global Security, and such Depositarymay be treated by the Company, the Trustee and any agent of the Company or theTrustee as the owner of such Global Security for all purposes whatsoever. Noneof the Company, the Trustee nor any agent of the Company or the Trustee willhave any responsibility or liability for any aspect of the records relating toor payments made on account of beneficial ownership interests of a GlobalSecurity or maintaining, supervising or reviewing any records relating to suchbeneficial ownership interests. Notwithstanding the foregoing, nothing hereinshall prevent the Company, the Trustee or any agent of the Company or theTrustee from giving effect to any written certification, proxy or otherauthorization furnished by a Depositary or impair, as between a Depositary andsuch holders of beneficial interests, the operation of customary practicesgoverning the exercise of the rights of the Depositary (or its nominee) asHolder of any Security.

 

SECTION 3.5         *Registration, Transfer andExchange Generally*.

 

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

 

(b)           Subject to compliance with Section2.2(b), upon surrender for registration of transfer of any Security at theoffices or agencies of the Company designated for that purpose the Companyshall execute, and the Trustee shall authenticate and deliver, in the name ofthe designated transferee or transferees, one or more new Securities of anyauthorized denominations of like tenor and aggregate principal amount.

 

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

 

(d)           All Securities issued upon anytransfer or exchange of Securities shall be the valid obligations of theCompany, evidencing the same debt, and entitled to the same benefits under thisIndenture, as the Securities surrendered upon such transfer or exchange.

 

(e)           Every Security presented orsurrendered for transfer or exchange shall (if so required by the Company orthe Trustee) be duly endorsed, or be accompanied by a written

 

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instrumentof transfer in form satisfactory to the Company and the Securities Registrar,duly executed by the Holder thereof or such Holder’s attorney duly authorizedin writing.

 

(f)            No service charge shall be made to aHolder for any transfer or exchange of Securities, but the Company may requirepayment of a sum sufficient to cover any tax or other governmental charge thatmay be imposed in connection with any transfer or exchange of Securities.

 

(g)           Neither the Company nor the Trusteeshall 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 periodbeginning at the opening of business fifteen (15) days before the day ofselection for redemption of Securities pursuant to Article XI and endingat 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 forredemption in whole or in part, except, in the case of any such Security to beredeemed in part, any portion thereof not to be redeemed.

 

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

 

(i)            The Securities may only betransferred to a “Qualified Purchaser” as such term is defined in section2(a)(51) of the Investment Company Act.

 

(j)            Neither the Trustee nor theSecurities Registrar shall be responsible for ascertaining whether any transferhereunder complies with the registration provisions of or any exemptions fromthe Securities Act, applicable state securities laws or the applicable laws ofany other jurisdiction, ERISA, the United States Internal Revenue Code of 1986,as amended, or the Investment Company Act; *provided* thatif a certificate is specifically required by the express terms of this Section3.5 to be delivered to the Trustee or the Securities Registrar by a Holder ortransferee of a Security, the Trustee and the Securities Registrar shall beunder a duty to receive and examine the same to determine whether or not thecertificate substantially conforms on its face to the requirements of thisIndenture and shall promptly notify the party delivering the same if suchcertificate does not comply with such terms

 

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

 

(a)           If any mutilated Security issurrendered to the Trustee together with such security or indemnity as may berequired by the Trustee to save the Company and the Trustee harmless, theCompany shall execute and the Trustee shall authenticate and deliver inexchange therefor a new Security of like tenor and aggregate principal amountand bearing a number not contemporaneously outstanding.

 

(b)           If there shall be delivered to theTrustee (i) evidence to its satisfaction of the destruction, loss or theft ofany Security and (ii) such security or indemnity as may be required by it tosave each of the Company and the Trustee harmless, then, in the absence ofnotice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the

 

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

 

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

 

(d)           Upon the issuance of any new Securityunder this Section 3.6, the Company may require the payment of a sumsufficient to cover any tax or other governmental charge that may be imposed inrelation thereto and any other expenses (including the fees and expenses of theTrustee) connected therewith.

 

(e)           Every new Security issued pursuant tothis Section 3.6 in lieu of any mutilated, destroyed, lost or stolenSecurity shall constitute an original additional contractual obligation of theCompany, whether or not the mutilated, destroyed, lost or stolen Security shallbe at any time enforceable by anyone, and shall be entitled to all the benefitsof this Indenture equally and proportionately with any and all other Securitiesduly issued hereunder.

 

(f)            The provisions of this Section3.6 are exclusive and shall preclude (to the extent lawful) all otherrights and remedies with respect to the replacement or payment of mutilated,destroyed, lost or stolen Securities.

 

SECTION 3.7         *Persons Deemed Owners*.

 

The Company, the Trustee and any agent of the Company or the Trusteeshall treat the Person in whose name any Security is registered as the owner ofsuch Security for the purpose of receiving payment of principal of and anyinterest on such Security and for all other purposes whatsoever, and neitherthe Company, the Trustee nor any agent of the Company or the Trustee shall beaffected by notice to the contrary.

 

SECTION 3.8         *Cancellation*.

 

All Securities surrendered for payment, redemption, transfer orexchange shall, if surrendered to any Person other than the Trustee, bedelivered to the Trustee, and any such Securities and Securities surrendereddirectly 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 anySecurities previously authenticated and delivered hereunder that the Companymay have acquired in any manner whatsoever, and all Securities so deliveredshall be promptly canceled by the Trustee. No Securities shall be authenticatedin lieu of or in exchange for any Securities canceled as provided in this Section3.8, except as expressly permitted by this Indenture. All canceledSecurities shall be retained or disposed of by the Trustee in accordance withits customary practices and the Trustee shall deliver to the Company acertificate of such disposition.

 

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SECTION 3.9         *Deferrals of InterestPayment Dates*.

 

(a)           So long as no Event of Default hasoccurred and is continuing, the Company shall have the right, at any time andfrom time to time during the term of the Security, to defer the payment ofinterest on the Securities for a period of up to four (4) consecutive quarterlyinterest payment periods (each such period, an “Extension Period”),during which Extension Period(s), the Company shall have the right to make nopayments or partial payments of interest on any Interest Payment Date (exceptany Additional Tax Sums that otherwise may be due and payable). No ExtensionPeriod shall end on a date other than an Interest Payment Date and no ExtensionPeriod shall extend beyond the Stated Maturity of the principal of theSecurities. No interest shall be due and payable during an Extension Period,except at the end thereof. At the end of any such Extension Period, the Companyshall pay all interest then accrued and unpaid on the Securities. Prior to thetermination of any such Extension Period, the Company may extend such ExtensionPeriod and further defer the payment of interest; *provided* that (i) all such previous and further extensionscomprising such Extension Period do not exceed four (4) quarterly interestpayment periods, (ii) no Extension Period shall end on a date other than anInterest Payment Date and (iii) no Extension Period shall extend beyond theStated Maturity of the principal of the Securities. Upon the termination of anysuch Extension Period and upon the payment of all accrued and unpaid interestthen due on any Interest Payment Date, the Company may elect to begin a newExtension Period; *provided* that(i) such Extension Period does not exceed four (4) quarterly interest paymentperiods, (ii) no Extension Period shall end on a date other than an InterestPayment Date and (iii) no Extension Period shall extend beyond the Stated Maturityof the principal of the Securities. The Company shall give the Holders of theSecurities and the Trustee written notice of its election to begin any suchExtension Period at least thirty (30) days’ prior to the next succeedingInterest Payment Date on which interest on the Securities would be payable butfor such deferral.

 

(b)           In connection with any such ExtensionPeriod, the Company shall be subject to the restrictions set forth in Section10.6(a).

 

SECTION 3.10       *Reserved*.

 

SECTION 3.11       *Agreed Tax Treatment*.

 

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

 

SECTION 3.12       *CUSIP Numbers*.

 

The Company in issuing the Securities may use “CUSIP” numbers (if thengenerally in use), and, if so, the Trustee shall use “CUSIP” numbers in noticesof redemption and other similar or related materials as a convenience toHolders; *provided* that any suchnotice or other

 

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materials may state that norepresentation is made as to the correctness of such numbers either as printedon the Securities or as contained in any notice of redemption or othermaterials and that reliance may be placed only on the other identificationnumbers printed on the Securities, and any such redemption shall not beaffected by any defect in or omission of such numbers.

 

**ARTICLE IVSATISFACTION AND DISCHARGE**

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SECTION 4.1         *Satisfaction and Dischargeof Indenture*.

 

This Indenture shall, upon Company Request, cease to be of furthereffect (except as to any surviving rights of registration of transfer orexchange of Securities herein expressly provided for and as otherwise providedin this Section 4.1) and the Trustee, on demand of and at the expense ofthe Company, shall execute proper instruments acknowledging satisfaction anddischarge of this Indenture, when

 

(a)           either

 

(i)            allSecurities theretofore authenticated and delivered (other than (A) Securitiesthat have been mutilated, destroyed, lost or stolen and that have been replacedor paid as provided in Section 3.6 and (B) Securities for whose paymentmoney has theretofore been deposited in trust or segregated and held in trustby the Company and thereafter repaid to the Company or discharged from suchtrust as provided in Section 10.2) have been delivered to the Trusteefor cancellation; or

 

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

 

(A)                              havebecome due and payable, or

 

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

 

(C)                                areto be called for redemption within one year under arrangements satisfactory tothe Trustee for the giving of notice of redemption by the Trustee in the name,and at the expense, of the Company,

 

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

 

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Stated Maturity (or any date of principal repayment upon earlymaturity) or Redemption Date, as the case may be;

 

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

 

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

 

Notwithstanding the satisfaction and discharge of this Indenture, theobligations of the Company to the Trustee under Section 6.6, theobligations of the Company to any Authenticating Agent under Section 6.11and, if money shall have been deposited with the Trustee pursuant to subclause(a)(ii) of this Section 4.1, the obligations of the Trustee under Section4.2 and Section 10.2(e) shall survive.

 

SECTION 4.2         *Application of Trust Money*.

 

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

 

**ARTICLE VREMEDIES**

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SECTION 5.1         *Events of Default*.

 

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

 

(a)           default in the payment of anyinterest upon any Security, including any Additional Interest in respectthereof, when it becomes due and payable, and continuance of such default for aperiod of thirty (30) days (subject to the deferral of any due date in the caseof an Extension Period); or

 

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

 

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(c)           default in the performance, orbreach, of any covenant or warranty in any material respect of the Company inthis Indenture or the Purchase Agreements and continuance of such default orbreach for a period of thirty (30) days after there has been given, by registeredor certified mail, to the Company by the Trustee or to the Company and theTrustee by the Holders of at least twenty five percent (25%) in aggregateprincipal amount of the Outstanding Securities a written notice specifying suchdefault or breach and requiring it to be remedied and stating that such noticeis a “Notice of Default” hereunder;

 

(d)           the entry by a court havingjurisdiction in the premises of  a decreeor order adjudging the Company a bankrupt or insolvent, or approving asproperly filed a petition seeking reorganization, arrangement, adjustment orcomposition of or in respect of the Company under any applicable Federal orstate bankruptcy, insolvency, reorganization or other similar law, orappointing a custodian, receiver, liquidator, assignee, trustee, sequestratoror other similar official of the Company or of any substantial part of itsproperty, or ordering the winding up or liquidation of its affairs, and thecontinuance of any such decree or order for relief or any such other decree ororder unstayed and in effect for a period of sixty (60) consecutive days;

 

(e)           the institution by the Company ofproceedings to be adjudicated a bankrupt or insolvent, or the consent by theCompany to the institution of bankruptcy or insolvency proceedings against it,or the filing by the Company of a petition or answer or consent seekingreorganization or relief under any applicable Federal or state bankruptcy,insolvency, reorganization or other similar law, or the consent by it to thefiling of such petition or to the appointment of or taking possession by acustodian, receiver, liquidator, assignee, trustee, sequestrator or othersimilar official of the Company or of any substantial part of its property, orthe making by it of an assignment for the benefit of creditors, or theadmission by it in writing of its inability to pay its debts generally as theybecome due and its willingness to be adjudicated a bankrupt or insolvent, orthe taking of corporate action by the Company in furtherance of any suchaction; or

 

(f)            the Trust shall have voluntarily orinvoluntarily liquidated, dissolved, wound-up its business or otherwiseterminated its existence, except in connection with (1) the distribution of theSecurities to holders of the Preferred Securities in liquidation of theirinterests in the Trust, (2) the redemption of all of the outstanding PreferredSecurities or (3) certain mergers, consolidations or amalgamations, each as andto the extent permitted by the Trust Agreement.

 

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

 

(a)           If an Event of Default occurs and iscontinuing, then and in every such case the Trustee or the Holders of not lessthan twenty five percent (25%) in aggregate principal amount of the OutstandingSecurities may declare the principal amount of all the Securities to be due andpayable immediately, by a notice in writing to the Company (and to the Trusteeif given by Holders), *provided* thatif, upon an Event of Default, the Trustee or the Holders of not less than twentyfive percent (25%) in principal amount of the Outstanding Securities fail todeclare the principal of all the Outstanding Securities to be immediately dueand payable, the holders of at least twenty five percent (25%) in aggregateLiquidation Amount of the Preferred Securities then outstanding shall have theright to make such declaration by a notice in writing to the Property Trustee,the Company and the Trustee; and upon any such declaration the principal amountof

 

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andthe accrued interest (including any Additional Interest) on all the Securitiesshall become immediately due and payable.

 

(b)           At any time after such a declarationof acceleration with respect to Securities has been made and before a judgmentor decree for payment of the money due has been obtained by the Trustee ashereinafter provided in this Article V, the Holders of a majority inaggregate principal amount of the Outstanding Securities, by written notice tothe Indenture Trustee, or the holders of a majority in aggregate LiquidationAmount of the Preferred Securities, by written notice to the Property Trustee,the Company and the Trustee, may rescind and annul such declaration and itsconsequences if:

 

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

 

(A)                              alloverdue installments of interest on all Securities,

 

(B)                                anyaccrued Additional Interest on all Securities,

 

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

 

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

 

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

 

*provided* that if theHolders of such Securities fail to annul such declaration and waive suchdefault, the holders of not less than a majority in aggregate LiquidationAmount of the Preferred Securities then outstanding shall also have the rightto rescind and annul such declaration and its consequences by written notice tothe Property Trustee, the Company and the Trustee, subject to the satisfactionof the conditions set forth in paragraph (b) of this Section 5.2. Nosuch rescission shall affect any subsequent default or impair any rightconsequent thereon.

 

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

 

(a)           The Company covenants that if:

 

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

 

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

 

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

 

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

 

(c)           If an Event of Default with respectto Securities occurs and is continuing, the Trustee may in its discretionproceed to protect and enforce its rights and the rights of the Holders ofSecurities by such appropriate judicial proceedings as the Trustee shall deemmost effectual to protect and enforce any such rights, whether for the specificenforcement of any covenant or agreement in this Indenture or in aid of theexercise of any power granted herein, or to enforce any other proper remedy.

 

SECTION 5.4         *Trustee May File Proofs ofClaim*.

 

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

 

SECTION 5.5         *Trustee May Enforce ClaimWithout Possession of Securities*.

 

All rights of action and claims under this Indenture or the Securitiesmay be prosecuted and enforced by the Trustee without the possession of any ofthe Securities or the production thereof in any proceeding relating thereto,and any such proceeding instituted by the Trustee shall be brought in its ownname as trustee of an express trust, and any recovery of judgment shall,subject to Article XII and after provision for the payment of all theamounts owing the Trustee, any predecessor Trustee and other Persons under Section6.6, be for the ratable benefit of the Holders of the Securities in respectof which such judgment has been recovered.

 

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SECTION 5.6         *Application of MoneyCollected*.

 

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

 

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

 

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

 

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

 

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

 

SECTION 5.7         *Limitation on Suits*.

 

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

 

(a)           such Holder has previously givenwritten notice to the Trustee of a continuing Event of Default with respect tothe Securities;

 

(b)           the Holders of not less than amajority in aggregate principal amount of the Outstanding Securities shall havemade written request to the Trustee to institute proceedings in respect of suchEvent of Default in its own name as Trustee hereunder;

 

(c)           such Holder or Holders have offeredto the Trustee reasonable indemnity against the costs, expenses and liabilitiesto be incurred in compliance with such request;

 

(d)           the Trustee after its receipt of suchnotice, request and offer of indemnity has failed to institute any suchproceeding for sixty (60) days; and

 

(e)           no direction inconsistent with suchwritten request has been given to the Trustee during such sixty (60)-day periodby the Holders of a majority in aggregate principal amount of the OutstandingSecurities;

 

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

 

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

 

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

 

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

 

SECTION 5.9         *Restoration of Rights andRemedies*.

 

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

 

SECTION 5.10       *Rights and RemediesCumulative*.

 

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

 

SECTION 5.11       *Delay or Omission Not Waiver*.

 

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

 

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SECTION 5.12       *Controlby Holders*.

 

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

 

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

 

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

 

(c)           subject to the provisions of Section6.2, the Trustee shall have the right to decline to follow such directionif a Responsible Officer or Officers of the Trustee shall, in good faith,reasonably determine that the proceeding so directed would be unjustlyprejudicial to the Holders not joining in any such direction or would involvethe Trustee in personal liability.

 

SECTION 5.13       *Waiver of Past Defaults*.

 

(a)           The Holders of not less than amajority in aggregate principal amount of the Outstanding Securities or theholders of not less than a majority in aggregate Liquidation Amount of thePreferred Securities may waive any past Event of Default hereunder and itsconsequences except an Event of Default:

 

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

 

(ii)           inrespect of a covenant or provision hereof that under Article IX cannotbe modified or amended without the consent of each Holder of any OutstandingSecurity.

 

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

 

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

 

SECTION 5.14       *Undertaking for Costs*.

 

All parties to this Indenture agree, and each Holder of any Security byhis or her acceptance thereof shall be deemed to have agreed, that any courtmay in its discretion require, in any suit for the enforcement of any right orremedy under this Indenture, or in any suit against the Trustee for any actiontaken or omitted by it as Trustee, the filing by any party litigant in suchsuit of an undertaking to pay the costs of such suit, and that such court mayin its discretion

 

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assess reasonable costs,including reasonable attorneys’ fees and expenses, against any party litigantin such suit, having due regard to the merits and good faith of the claims ordefenses made by such party litigant; but the provisions of this Section5.14 shall not apply to any suit instituted by the Trustee, to any suitinstituted by any Holder, or group of Holders, holding in the aggregate morethan ten percent (10%) in aggregate principal amount of the OutstandingSecurities, or to any suit instituted by any Holder for the enforcement of thepayment of the principal of or any premium on the Security after the StatedMaturity or any interest (including any Additional Interest) on any Securityafter it is due and payable.

 

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

 

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

 

**ARTICLE VITHE TRUSTEE**

** **

SECTION 6.1         *Corporate Trustee Required*.

 

There shall at all times be a Trustee hereunder with respect to theSecurities. The Trustee shall be a corporation organized and doing businessunder the laws of the United States or of any state thereof, authorized toexercise corporate trust powers, having a combined capital and surplus of atleast $50,000,000, subject to supervision or examination by Federal or stateauthority and having an office within the United States. If such corporationpublishes reports of condition at least annually, pursuant to law or to therequirements of such supervising or examining authority, then, for the purposesof this Section 6.1, the combined capital and surplus of such corporationshall be deemed to be its combined capital and surplus as set forth in its mostrecent report of condition so published. If at any time the Trustee shall ceaseto be eligible in accordance with the provisions of this Section 6.1, itshall resign immediately in the manner and with the effect hereinafterspecified in this Article VI.

 

SECTION 6.2         *Certain Duties andResponsibilities*.

 

(a)           Except during the continuance of anEvent of Default:

 

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

 

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

 

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

 

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

 

(c)           Notwithstanding the foregoing, noprovision of this Indenture shall require the Trustee to expend or risk its ownfunds or otherwise incur any financial liability in the performance of any ofits duties hereunder, or in the exercise of any of its rights or powers, if itshall have reasonable grounds for believing that repayment of such funds oradequate indemnity against such risk or liability is not reasonably assured toit. Whether or not therein expressly so provided, every provision of thisIndenture relating to the conduct or affecting the liability of or affordingprotection to the Trustee shall be subject to the provisions of this Section6.2. To the extent that, at law or in equity, the Trustee has duties andliabilities relating to the Holders, the Trustee shall not be liable to anyHolder or any holder of Preferred Securities for the Trustee’s good faithreliance on the provisions of this Indenture. The provisions of this Indenture,to the extent that they restrict the duties and liabilities of the Trusteeotherwise existing at law or in equity, are agreed by the Company and theHolders and the holders of Preferred Securities to replace such other dutiesand liabilities of the Trustee.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

SECTION 6.3         *Notice of Defaults*.

 

Within ninety (90) days after the occurrence of any default actuallyknown to the Trustee, the Trustee shall give the Holders notice of such defaultunless such default shall have been cured or waived; *provided* thatexcept in the case of a default in the payment of the principal of or anypremium or interest on any Securities, the Trustee shall be fully protected inwithholding the notice if and so long as the board of directors, the executivecommittee or a trust committee of directors and/or Responsible Officers of theTrustee in good faith determines that withholding the notice is in the interestof 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 afterthe 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 bothwould become, an Event of Default.

 

SECTION 6.4         *Certain Rights of Trustee*.

 

Subject to the provisions of Section 6.2:

 

 

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(a)           the Trustee may conclusively rely andshall be fully protected in acting or refraining from acting in good faith andin 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 begenuine and to have been signed or presented by the proper party or parties;

 

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

 

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

 

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

 

(e)           the Trustee shall be under noobligation to exercise any of the rights or powers vested in it by thisIndenture at the request or direction of any of the Holders or any holder ofPreferred Securities pursuant to this Indenture, unless such Holders (or suchholders of Preferred Securities) shall have offered to the Trustee security orindemnity reasonably satisfactory to it against the costs, expenses (includingreasonable attorneys’ fees and expenses) and liabilities that might be incurredby it in compliance with such request or direction, including reasonableadvances as may be requested by the Trustee;

 

(f)            the Trustee shall not be bound tomake 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 intosuch facts or matters as it may see fit, and, if the Trustee shall determine tomake such inquiry or investigation, it shall be entitled to examine the books,records and premises of the Company, personally or by agent or attorney;

 

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(g)           the Trustee may execute any of thetrusts or powers hereunder or perform any duties hereunder either directly orby or through agents, attorneys, custodians or nominees and the Trustee shallnot be responsible for any misconduct or negligence on the part of any suchagent, attorney, custodian or nominee appointed with due care by it hereunder;

 

(h)           whenever in the administration ofthis Indenture the Trustee shall deem it desirable to receive instructions withrespect to enforcing any remedy or right or taking any other action withrespect to enforcing any remedy or right hereunder, the Trustees (i) mayrequest instructions from the Holders (which instructions may only be given bythe Holders of the same aggregate principal amount of Outstanding Securities aswould be entitled to direct the Trustee under this Indenture in respect of suchremedy, right or action), (ii) may refrain from enforcing such remedy or rightor taking such action until such instructions are received and (iii) shall beprotected in acting in accordance with such instructions;

 

(i)            except as otherwise expresslyprovided by this Indenture, the Trustee shall not be under any obligation totake any action that is discretionary under the provisions of this Indenture;

 

(j)            without prejudice to any otherrights available to the Trustee under applicable law, when the Trustee incursexpenses or renders services in connection with any bankruptcy, insolvency orother proceeding referred to in clauses (d) or (e) of the definition of Eventof Default, such expenses (including legal fees and expenses of its agents andcounsel) and the compensation for such services are intended to constituteexpenses of administration under any bankruptcy laws or law relating tocreditors rights generally;

 

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

 

(l)            the Trustee shall not be chargedwith knowledge of any Event of Default unless either (i) a Responsible Officerof the Trustee shall have actual knowledge or (ii) the Trustee shall havereceived written notice thereof from the Company or a Holder; and

 

(m)          in the event that the Trustee is alsoacting as Paying Agent, Authenticating Agent or Securities Registrar hereunder,the rights and protections afforded to the Trustee pursuant to this ArticleVI shall also be afforded such Paying Agent, Authenticating Agent, orSecurities Registrar.

 

SECTION 6.5         *May Hold Securities*.

 

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

 

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SECTION 6.6         *Compensation;Reimbursement; Indemnity*.

 

(a)           The Company agrees:

 

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

 

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

 

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

 

(b)           To secure the Company’s paymentobligations in this Section 6.6, the Company hereby grants and pledgesto the Trustee and the Trustee shall have a lien prior to the Securities on allmoney or property held or collected by the Trustee, other than money or propertyheld in trust to pay principal and interest on particular Securities. Such lienshall survive the satisfaction and discharge of this Indenture or theresignation or removal of the Trustee.

 

(c)           The obligations of the Company underthis Section 6.6 shall survive the satisfaction and discharge of thisIndenture and the earlier resignation or removal of the Trustee.

 

(d)           In no event shall the Trustee beliable for any indirect, special, punitive or consequential loss or damage ofany kind whatsoever, including, but not limited to, lost profits, even if theTrustee has been advised of the likelihood of such loss or damage andregardless of the form of action.

 

(e)           In no event shall the Trustee beliable for any failure or delay in the performance of its obligations hereunderbecause 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 providingof the services contemplated by this Indenture.

 

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

 

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

 

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

 

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

 

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

 

(e)           The Company shall give notice to allHolders in the manner provided in Section 1.6 of each resignationand 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 ofits Corporate Trust Office.

 

SECTION 6.8         *Acceptance of Appointmentby Successor*.

 

(a)           In case of the appointment hereunderof a successor Trustee, each successor Trustee so appointed shall execute,acknowledge and deliver to the Company and to the retiring Trustee aninstrument accepting such appointment, and thereupon the resignation or removalof the retiring Trustee shall become effective and such successor Trustee,without any further act, deed or conveyance, shall become vested with all therights, powers, trusts and duties of the retiring Trustee; but, on the requestof the Company or the successor Trustee, such retiring Trustee shall, uponpayment of its charges, execute and deliver an instrument transferring to suchsuccessor Trustee all the rights, powers and trusts of the retiring Trustee andshall duly assign, transfer and deliver to such successor Trustee all propertyand money held by such retiring Trustee hereunder.

 

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

 

(c)           No successor Trustee shall accept itsappointment unless at the time of such acceptance such successor Trustee shallbe qualified and eligible under this Article VI.

 

SECTION 6.9         *Merger, Conversion,Consolidation or Succession to Business*.

 

Any Person into which the Trustee may be merged or converted or withwhich it may be consolidated, or any Person resulting from any merger,conversion or consolidation to which the Trustee shall be a party, or anyPerson succeeding to all or substantially all of the corporate trust businessof the Trustee, shall be the successor of the Trustee hereunder, without theexecution or filing of any paper or any further act on the part of any of theparties hereto, *provided* thatsuch Person shall be otherwise qualified and eligible under this Article VI.In case any Securities shall have been authenticated, but not delivered, by theTrustee then in office, any successor by merger, conversion or consolidation oras otherwise provided above in this Section 6.9 to such authenticatingTrustee may adopt such authentication and deliver the Securities soauthenticated, and in case any Securities shall not have been authenticated,any successor to the Trustee may authenticate such Securities either in thename of any predecessor Trustee or in the name of such successor Trustee, andin all cases the certificate of authentication shall have the full force whichit is provided anywhere in the Securities or in this Indenture that thecertificate of the Trustee shall have.

 

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

 

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

 

SECTION 6.11       *Appointment ofAuthenticating Agent*.

 

(a)           The Trustee may appoint anAuthenticating Agent or Agents with respect to the Securities, which shall beauthorized to act on behalf of the Trustee to authenticate Securities issuedupon original issue and upon exchange, registration of transfer or partialredemption thereof or pursuant to Section 3.6, and Securities soauthenticated shall be entitled to the benefits of this Indenture and shall bevalid and obligatory for all purposes as if authenticated by the Trusteehereunder. Wherever reference is made in this Indenture to the authenticationand delivery of Securities by the Trustee or the Trustee’s certificate ofauthentication, such reference shall be deemed to include authentication anddelivery on behalf of the Trustee by an Authenticating Agent. EachAuthenticating Agent shall be acceptable to the Company and shall at all timesbe a corporation organized and doing business under the laws of the UnitedStates of America, or of any State or Territory thereof or the District ofColumbia, authorized under such laws to act as Authenticating Agent, having acombined capital and surplus of not less than

 

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$50,000,000and subject to supervision or examination by Federal or state authority. Ifsuch Authenticating Agent publishes reports of condition at least annuallypursuant to law or to the requirements of said supervising or examiningauthority, then for the purposes of this Section 6.11 the combinedcapital and surplus of such Authenticating Agent shall be deemed to be itscombined capital and surplus as set forth in its most recent report ofcondition so published. If at any time an Authenticating Agent shall cease tobe eligible in accordance with the provisions of this Section 6.11, suchAuthenticating Agent shall resign immediately in the manner and with the effectspecified in this Section 6.11.

 

(b)           Any Person into which anAuthenticating Agent may be merged or converted or with which it may beconsolidated, or any Person resulting from any merger, conversion orconsolidation to which such Authenticating Agent shall be a party, or anyPerson succeeding to all or substantially all of the corporate trust businessof an Authenticating Agent shall be the successor Authenticating Agenthereunder, provided such Person shall be otherwise eligible under this Section6.11, without the execution or filing of any paper or any further act onthe part of the Trustee or the Authenticating Agent.

 

(c)           An Authenticating Agent may resign atany 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 bygiving written notice thereof to such Authenticating Agent and to the Company.Upon receiving such a notice of resignation or upon such a termination, or incase at any time such Authenticating Agent shall cease to be eligible inaccordance with the provisions of this Section 6.11, the Trustee mayappoint a successor Authenticating Agent eligible under the provisions of this Section6.11, which shall be acceptable to the Company, and shall give notice ofsuch appointment to all Holders. Any successor Authenticating Agent uponacceptance of its appointment hereunder shall become vested with all therights, powers and duties of its predecessor hereunder, with like effect as iforiginally named as an Authenticating Agent.

 

(d)           The Company agrees to pay to eachAuthenticating Agent from time to time reasonable compensation for its servicesunder this Section 6.11 in such amounts as the Company and theAuthenticating Agent shall agree from time to time.

 

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

 

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

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

 

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|     | By:      |                   |   |
|----------|----------|------------------------|--------|
| * * | * * | *Authorized Signatory* |

 

**ARTICLE VII**

** **

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

** **

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

 

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

 

(a)           semiannually, on or before June 30and December 31 of each year, a list, in such form as the Trustee mayreasonably require, of the names and addresses of the Holders as of a date notmore than fifteen (15) days prior to the delivery thereof, and

 

(b)           at such other times as the Trusteemay request in writing, within thirty (30) days after the receipt by theCompany of any such request, a list of similar form and content as of a datenot 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 orcontrol of the Company and has not otherwise been received by the Trustee inits capacity as Securities Registrar.

 

SECTION 7.2         *Preservation ofInformation, Communications to Holders*.

 

(a)           The Trustee shall preserve, in ascurrent a form as is reasonably practicable, the names and addresses of Holderscontained in the most recent list furnished to the Trustee as provided in Section7.1 and the names and addresses of Holders received by the Trustee in itscapacity as Securities Registrar. The Trustee may destroy any list furnished toit as provided in Section 7.1 upon receipt of a new list so furnished.

 

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

 

(c)           Every Holder of Securities, byreceiving and holding the same, agrees with the Company and the Trustee thatneither the Company nor the Trustee nor any agent of either of them shall beheld accountable by reason of the disclosure of information as to the names andaddresses of the Holders made pursuant to the Trust Indenture Act.

 

SECTION 7.3         *Reports by Company*.

 

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

 

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(b)           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, 23rd Floor,New York, New York 10022, Attn: Mitchell Kahn and (iv) any beneficial owner ofthe Securities reasonably identified to the Company (which identification maybe made either by such beneficial owner or by Taberna Capital Management LLC),a duly completed and executed certificate substantially and substantively inthe form attached hereto as Exhibit A, including the financialstatements referenced in such Exhibit, which certificate and financialstatements shall be so furnished by the Company not later than forty-five (45)days after the end of each of the first three fiscal quarters of each fiscalyear of the Company and not later than ninety (90) days after the end of eachfiscal year of the Company. The delivery requirements under this Section7.3(b) may be satisfied by compliance with Section 8.16(b) of the TrustAgreement.

 

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

 

**ARTICLE VIIICONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE**

** **

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

 

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

 

(a)           if the Company shall consolidate withor merge into another Person or convey, transfer or lease its properties andassets substantially as an entirety to any Person, the entity formed by suchconsolidation or into which the Company is merged or the Person that acquiresby conveyance or transfer, or that leases, the properties and assets of theCompany substantially as an entirety shall be an entity organized and existingunder the laws of the United States of America or any State or Territorythereof or the District of Columbia and shall expressly assume,

 

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byan indenture supplemental hereto, executed and delivered to the Trustee, inform reasonably satisfactory to the Trustee, the due and punctual payment ofthe principal of and any premium and interest (including any AdditionalInterest) on all the Securities and the performance of every covenant of thisIndenture on the part of the Company to be performed or observed;

 

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

 

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

 

SECTION 8.2         *Successor CompanySubstituted*.

 

(a)           Upon any consolidation or merger bythe Company with or into any other Person, or any conveyance, transfer or leaseby the Company of its properties and assets substantially as an entirety to anyPerson in accordance with Section 8.1 and the execution and delivery tothe Trustee of the supplemental indenture described in Section 8.1(a),the successor entity formed by such consolidation or into which the Company ismerged 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 Companyunder this Indenture with the same effect as if such successor Person had beennamed as the Company herein; and in the event of any such conveyance ortransfer, following the execution and delivery of such supplemental indenture,the Company shall be discharged from all obligations and covenants under theIndenture and the Securities.

 

(b)           Such successor Person may cause to beexecuted, 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 havebeen signed by the Company and delivered to the Trustee; and, upon the order ofsuch successor Person instead of the Company and subject to all the terms,conditions and limitations in this Indenture prescribed, the Trustee shallauthenticate and shall deliver any Securities that previously shall have beensigned and delivered by the officers of the Company to the Trustee forauthentication, and any Securities that such successor Person thereafter shallcause to be executed and delivered to the Trustee on its behalf. All theSecurities so issued shall in all respects have the same legal rank and benefitunder this Indenture as the Securities theretofore or thereafter issued inaccordance with the terms of this Indenture.

 

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

 

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**ARTICLE IX**

** **

**SUPPLEMENTAL INDENTURES**

** **

SECTION 9.1         *Supplemental Indentureswithout Consent of Holders*.

 

Without the consent of any Holders, the Company, when authorized by aBoard Resolution, and the Trustee, at any time and from time to time, may enterinto one or more indentures supplemental hereto, in form reasonablysatisfactory to the Trustee, for any of the following purposes:

 

(a)           to evidence the succession of anotherPerson to the Company, and the assumption by any such successor of thecovenants of the Company herein and in the Securities; or

 

(b)           to evidence and provide for theacceptance of appointment hereunder by a successor trustee; or

 

(c)           to cure any ambiguity, to correct orsupplement any provision herein that may be defective or inconsistent with anyother provision herein, or to make or amend any other provisions with respectto matters or questions arising under this Indenture, which shall not beinconsistent with the other provisions of this Indenture, *provided* that such action pursuant to thisclause (b) shall not adversely affect in any material respect the interests ofany Holders or the holders of the Preferred Securities; or

 

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

 

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

 

(f)            to modify, eliminate or add to any provisionsof the Indenture or the Securities to such extent as shall be necessary toensure that the Securities are treated as indebtedness of the Company forUnited States Federal income tax purposes, *provided*that such action pursuant to this clause (d) shall not adversely affect in anymaterial respect the interests of any Holders or the holders of the PreferredSecurities.

 

SECTION 9.2         *Supplemental Indentureswith Consent of Holders*.

 

(a)           Subject to Section 9.1, withthe consent of the Holders of not less than a majority in aggregate principalamount of the Outstanding Securities, by Act of said Holders delivered to theCompany and the Trustee, the Company, when authorized by a Board Resolution,and the Trustee may enter into an indenture or indentures supplemental heretofor the purpose of adding any provisions to or changing in any manner oreliminating any of the provisions of this Indenture or of modifying in anymanner the rights of the Holders of Securities under this Indenture; *provided* that no such supplementalindenture shall, without the consent of the Holder of each OutstandingSecurity,

 

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

 

(ii)           reducethe percentage in aggregate principal amount of the Outstanding Securities, theconsent of whose Holders is required for any such supplemental indenture, orthe consent of whose Holders is required for any waiver of compliance with anyprovision of this Indenture or of defaults hereunder and their consequencesprovided for in this Indenture, or modify any of the provisions of this Section9.2, Section 5.13 or Section 10.7, except to increase anypercentage in aggregate principal amount of the Outstanding Securities, theconsent of whose Holders is required for any reason, or to provide that certainother provisions of this Indenture cannot be modified or waived without theconsent of the Holder of each Security;

 

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

 

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

 

SECTION 9.3         *Execution of SupplementalIndentures*.

 

In executing or accepting the additional trusts created by anysupplemental indenture permitted by this Article IX or the modificationsthereby of the trusts created by this Indenture, the Trustee shall be entitledto receive, and shall be fully protected in conclusively relying upon, anOfficers’ Certificate and an Opinion of Counsel stating that the execution ofsuch supplemental indenture is authorized or permitted by this Indenture, andthat all conditions precedent herein provided for relating to such action havebeen complied with. The Trustee may, but shall not be obligated to, enter intoany such supplemental indenture that affects the Trustee’s own rights, duties,indemnities or immunities under this Indenture or otherwise. Copies of thefinal form of each supplemental indenture shall be delivered by the Trustee atthe expense of the Company to each Holder, and, if the Trustee is the PropertyTrustee, to each holder of Preferred Securities, promptly  after the execution thereof.

 

SECTION 9.4         *Effect of SupplementalIndentures*.

 

Upon the execution of any supplemental indenture under this ArticleIX, this Indenture shall be modified in accordance therewith, and suchsupplemental indenture shall form a part of

 

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this Indenture for allpurposes; and every Holder of Securities and every holder of PreferredSecurities theretofore or thereafter authenticated and delivered hereundershall be bound thereby.

 

SECTION 9.5         *Reference in Securities toSupplemental Indentures*.

 

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

 

**ARTICLE XCOVENANTS**

** **

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

 

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

 

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

 

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

 

(b)           Whenever the Company shall have oneor more Paying Agents, it will, prior to 10:00 a.m., New York City time, oneach due date of the principal of or any premium or interest (including any AdditionalInterest) on any Securities, deposit with a Paying Agent a sum sufficient topay 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 theTrustee of its failure so to act.

 

(c)           The Company will cause each PayingAgent for the Securities other than the Trustee to execute and deliver to theTrustee an instrument in which such Paying Agent shall agree with the Trustee,subject to the provisions of this Section 10.2, that such Paying Agentwill (i) comply with the provisions of this Indenture and the Trust IndentureAct applicable to it as a Paying Agent and (ii) during the continuance of anydefault by the Company (or any other obligor upon the Securities) in the makingof any payment in respect of the Securities, upon the

 

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writtenrequest of the Trustee, forthwith pay to the Trustee all sums held in trust bysuch Paying Agent for payment in respect of the Securities.

 

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

 

(e)           Any money deposited with the Trusteeor any Paying Agent, or then held by the Company in trust for the payment ofthe principal of and any premium or interest (including any AdditionalInterest) on any Security and remaining unclaimed for two years after suchprincipal and any premium or interest (including Additional Interest) hasbecome due and payable shall (unless otherwise required by mandatory provisionof applicable escheat or abandoned or unclaimed property law) be paid onCompany Request to the Company, or (if then held by the Company) shall (unlessotherwise required by mandatory provision of applicable escheat or abandoned orunclaimed property law) be discharged from such trust; and the Holder of suchSecurity shall thereafter, as an unsecured general creditor, look only to theCompany for payment thereof, and all liability of the Trustee or such PayingAgent with respect to such trust money, and all liability of the Company astrustee thereof, shall thereupon cease; *provided*that the Trustee or such Paying Agent, before being required to make any suchrepayment, may at the expense of the Company cause to be published once, in anewspaper published in the English language, customarily published on eachBusiness Day and of general circulation in the Borough of Manhattan, The Cityof New York, notice that such money remains unclaimed and that, after a datespecified therein, which shall not be less than thirty (30) days from the dateof such publication, any unclaimed balance of such money then remaining will berepaid to the Company.

 

SECTION 10.3       *Statement as to Compliance*.

 

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

 

SECTION 10.4       *Calculation Agent*.

 

(a)           The Company hereby agrees that for solong as any of the Securities remain Outstanding, there will at all times be anagent appointed to calculate LIBOR in respect of each Interest Payment Date inaccordance with the terms of Schedule A (the “*Calculation Agent*”).

 

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

 

(b)           The Calculation Agent shall berequired to agree that, as soon as possible after 11:00 a.m. (London time) oneach LIBOR Determination Date (as defined in Schedule A), but in noevent later than 11:00 a.m. (London time) on the Business Day immediatelyfollowing each LIBOR Determination Date, the Calculation Agent will calculatethe 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, eachPaying Agent and the Depositary. The Calculation Agent will also specify to theCompany the quotations upon which the foregoing rates and amounts are basedand, in any event, the Calculation Agent shall notify the Company before 5:00p.m. (London time) on each LIBOR Determination Date that either:  (i) it has determined or is in the process ofdetermining the foregoing rates and amounts or (ii) it has not determined andis not in the process of determining the foregoing rates and amounts, togetherwith its reasons therefor. The Calculation Agent’s determination of theforegoing rates and amounts for any Interest Payment Date will (in the absenceof manifest error) be final and binding upon all parties. For the sole purposeof calculating the interest rate for the Securities, “Business Day” shall bedefined as any day on which dealings in deposits in Dollars are transacted inthe London interbank market.

 

SECTION 10.5       *Additional Tax Sums*.

 

So long as no Event of Default has occurred and is continuing, if (a)the Trust is the Holder of all of the Outstanding Securities and (b) a TaxEvent described in clause (i) or (iii) in the definition of Tax Event in Section1.1 hereof has occurred and is continuing, the Company shall pay to theTrust (and its permitted successors or assigns under the related TrustAgreement) for so long as the Trust (or its permitted successor or assignee) isthe registered holder of the Outstanding Securities, such amounts as may benecessary in order that the amount of Distributions (including any AdditionalInterest Amount (as defined in the Trust Agreement)) then due and payable bythe Trust on the Preferred Securities and Common Securities that at any timeremain outstanding in accordance with the terms thereof shall not be reduced asa result of any Additional Taxes arising from such Tax Event (additional suchamounts payable by the Company to the Trust, the “*Additional Tax Sums*”).Whenever in this Indenture or the Securities there is a reference in anycontext to the payment of principal of or interest on the Securities, suchmention shall be deemed to include mention of the payments of the AdditionalTax Sums provided for in this Section 10.5 to the extent that, in suchcontext, Additional Tax Sums are, were or would be payable in respect thereofpursuant to the provisions of this Section 10.5 and express mention ofthe payment of Additional Tax Sums (if applicable) in any provisions hereofshall not be construed as excluding Additional Tax Sums in those provisionshereof where such

 

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

 

SECTION 10.6       *Additional Covenants*.

 

(a)           The Company covenants and agrees witheach Holder of Securities that if an Event of Default shall have occurred andbe continuing or the Company shall have given notice of its election to beginan Extension Period with respect to the Securities or such Extension Period, orany extension thereof, shall be continuing, it shall not (i) declare or pay anydividends or distributions on, or redeem, purchase, acquire or make aliquidation payment with respect to, any units of the Company’s limitedpartnership interests, (ii) vote in favor of or permit or otherwise allow anyof its subsidiaries to declare or pay any dividends or distributions on, orredeem, purchase, acquire or make a liquidation payment with respect to orotherwise retire, any shares of such subsidiaries preferred stock (for theavoidance of doubt, whether such preferred stock is perpetual or otherwise), or(iii) make any payment of principal of or any interest or premium, if any, onor repay, repurchase or redeem any debt securities of the Company that rank *pari passu* in all respects with or junior in interest to the Securities(other than (A) repurchases, redemptions or other acquisitions of units oflimited partnership interests of the Company in connection with any employmentcontract, benefit plan or other similar arrangement with or for the benefit ofany one or more employees, officers, directors or consultants, in connectionwith a dividend reinvestment or limited partnership interests purchase plan orin connection with the issuance of limited partnership interests of the Company(or securities convertible into or exercisable for such units of limitedpartnership interests) as consideration in an acquisition transaction enteredinto prior to the Event of Default or the applicable Extension Period, (B) as aresult of an exchange or conversion of any class or series of the Company’slimited partnership interests (or any capital stock or limited partnershipinterests of a Subsidiary of the Company) for any class or series of theCompany’s limited partnership interests or of any class or series of theCompany’s indebtedness for any class or series of the Company’s limitedpartnership interests, (C) the purchase of fractional interests in theCompany’s limited partnership interests pursuant to the conversion or exchangeprovisions of such limited partnership interests or the security beingconverted or exchanged, (D) any declaration of a dividend in connection withany Rights Plan, the issuance of rights, limited partnership interests or otherproperty under any Rights Plan or the redemption or repurchase of rightspursuant thereto or (E) any dividend in the form of limited partnershipinterests, warrants, options or other rights where the dividend limitedpartnership interests or the limited partnership interests issuable uponexercise of such warrants, options or other rights is the same limitedpartnership interests as that on which the dividend is being paid or ranks *pari passu* with or junior to such limitedpartnership interests).

 

(b)           The Company also covenants with eachHolder of Securities (i) to hold, directly or indirectly, one hundred percent(100%) of the Common Securities of the Trust, *provided*that any permitted successor of the Company hereunder may succeed to theCompany’s ownership of such Common Securities, (ii) as holder of such CommonSecurities, not to voluntarily dissolve, wind-up or liquidate the Trust otherthan (A) in connection with a distribution of the Securities to the holders ofthe Preferred Securities in liquidation of the Trust or (B) in connection withcertain mergers, consolidations or amalgamations permitted by the TrustAgreement and (iii) to use its reasonable commercial efforts, consistent withthe terms and provisions of the Trust Agreement,

 

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to cause the Trust to continue to be taxable as a grantor trust and notas a corporation for United States Federal income tax purposes.

 

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

 

SECTION 10.7       *Waiver of Covenants*.

 

The Company may omit inany particular instance to comply with any covenant or condition contained in Section10.6 if, before or after the time for such compliance, the Holders of atleast a majority in aggregate principal amount of the Outstanding Securitiesshall, by Act of such Holders, and at least a majority of the aggregateLiquidation Amount of the Preferred Securities then outstanding, by consent ofsuch holders, either waive such compliance in such instance or generally waivecompliance with such covenant or condition, but no such waiver shall extend toor affect such covenant or condition except to the extent so expressly waived,and, until such waiver shall become effective, the obligations of the Companyin respect of any such covenant or condition shall remain in full force andeffect.

 

SECTION 10.8       *Treatment of Securities*.

 

The Company will treat the Securities as indebtedness, and the amounts,other than payments of principal, payable in respect of the principal amount ofsuch Securities as interest, for all U.S. federal income tax purposes. Allpayments 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 InternalRevenue Service Form W-9 or W-8BEN (or any substitute or successor form)establishing its U.S. or non-U.S. status for U.S. federal income tax purposes,or any other applicable form establishing a complete exemption from U.S.withholding tax.

 

**ARTICLE XI**

** **

**REDEMPTION OF SECURITIES**

** **

SECTION 11.1       *Optional Redemption*.

 

The Company may, at its option, on any Interest Payment Date, on orafter January 30, 2011, redeem the Securities in whole at any time or in partfrom time to time, at a Redemption Price equal to one hundred percent (100%) ofthe principal amount thereof (or of the redeemed portion thereof, asapplicable), together, in the case of any such redemption, with accrued andunpaid interest, including any Additional Interest, through but excluding thedate fixed as the Redemption Date (the “*OptionalRedemption Price*”).

 

SECTION 11.2       *Special Event Redemption*.

 

Prior to January 30, 2011, upon the occurrence and during thecontinuation of a Special Event, the Company may, at its option, redeem theSecurities, in whole but not in part, at a Redemption Price equal to onehundred seven and one half percent (107.5%) of the principal amount thereof,together, in the case of any such redemption, with accrued interest, including

 

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any Additional Interest,through but excluding the date fixed as the Redemption Date (the “*Special Redemption Price*”).

 

SECTION 11.3       *Election to Redeem; Noticeto Trustee*.

 

The election of the Company to redeem any Securities, in whole or inpart, shall be evidenced by or pursuant to a Board Resolution. In case of anyredemption at the election of the Company, the Company shall, not less thanforty-five (45) days and not more than seventy-five (75) days prior to theRedemption Date (unless a shorter notice shall be satisfactory to the Trustee),notify the Trustee and the Property Trustee under the Trust Agreement inwriting of such date and of the principal amount of the Securities to be redeemedand provide the additional information required to be included in the notice ornotices contemplated by Section 11.5. In the case of any redemption ofSecurities, in whole or in part, (a) prior to the expiration of any restrictionon such redemption provided in this Indenture or the Securities or (b) pursuantto an election of the Company which is subject to a condition specified in thisIndenture or the Securities, the Company shall furnish the Trustee with anOfficers’ Certificate and an Opinion of Counsel evidencing compliance with suchrestriction or condition.

 

SECTION 11.4       *Selection of Securities tobe Redeemed*.

 

(a)           If less than all the Securities areto be redeemed, the particular Securities to be redeemed shall be selected andredeemed on a pro rata basis not more than sixty (60) days prior to theRedemption Date by the Trustee from the Outstanding Securities not previouslycalled for redemption, *provided*that the unredeemed portion of the principal amount of any Security shall be inan authorized denomination (which shall not be less than the minimum authorizeddenomination) for such Security.

 

(b)           The Trustee shall promptly notify theCompany in writing of the Securities selected for redemption and, in the caseof any Securities selected for partial redemption, the principal amount thereofto be redeemed. For all purposes of this Indenture, unless the contextotherwise requires, all provisions relating to the redemption of Securitiesshall relate, in the case of any Security redeemed or to be redeemed only inpart, to the portion of the principal amount of such Security that has been oris to be redeemed.

 

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

 

SECTION 11.5       *Notice of Redemption*.

 

(a)           Notice of redemption shall be givennot later than the thirtieth (30th) day, and not earlier than the sixtieth (60th) day, prior to the RedemptionDate to each Holder of Securities to be redeemed, in whole or in part (unless ashorter notice shall be satisfactory to the Property Trustee under the relatedTrust Agreement).

 

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

 

(i)            theRedemption Date;

 

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

 

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

 

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

 

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

 

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

 

SECTION 11.6       *Deposit of RedemptionPrice*.

 

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

 

SECTION 11.7       *Payment of SecuritiesCalled for Redemption*.

 

(a)           If any notice of redemption has beengiven as provided in Section 11.5, the Securities or portion ofSecurities with respect to which such notice has been given shall become dueand payable on the date and at the place or places stated in such notice at theapplicable Redemption Price, together with accrued interest (including anyAdditional Interest) to the Redemption Date. On presentation and surrender ofsuch Securities at a Place of Payment

 

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specifiedin such notice, the Securities or the specified portions thereof shall be paidand redeemed by the Company at the applicable Redemption Price, together withaccrued interest (including any Additional Interest) to the Redemption Date.

 

(b)           Upon presentation of any Securityredeemed in part only, the Company shall execute and the Trustee shallauthenticate and deliver to the Holder thereof, at the expense of the Company,a new Security or Securities, of authorized denominations, in aggregateprincipal amount equal to the unredeemed portion of the Security so presentedand having the same Original Issue Date, Stated Maturity and terms.

 

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

 

**ARTICLE XII**

** **

**SUBORDINATION OF SECURITIES**

** **

SECTION 12.1       *Securities Subordinate toSenior Debt*.

 

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

 

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

 

(a)           In the event and during thecontinuation of any default by the Company in the payment of any principal ofor any premium or interest on any Senior Debt (following any grace period, ifapplicable) when the same becomes due and payable, whether at maturity or at adate fixed for prepayment or by declaration of acceleration or otherwise, then,upon written notice of such default to the Company by the holders of suchSenior Debt or any trustee therefor, unless and until such default shall havebeen cured or waived or shall have ceased to exist, no direct or indirectpayment (in cash, property, securities, by set-off or otherwise) shall be madeor 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 ofany redemption, repayment, retirement, purchase or other acquisition of any ofthe Securities.

 

(b)           In the event of a bankruptcy,insolvency or other proceeding described in clause (d) or (e) of the definitionof 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 suchproceedings) shall first be paid in full before any payment or distribution,whether in cash, securities or other property, shall be made to any Holder ofany of the Securities on account thereof. Any payment or distribution, whetherin cash, securities or other property (other than securities of the Company orany other entity provided for by a plan of

 

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reorganizationor readjustment the payment of which is subordinate, at least to the extentprovided in these subordination provisions with respect to the indebtednessevidenced by the Securities, to the payment of all Senior Debt at the timeoutstanding and to any securities issued in respect thereof under any such planof reorganization or readjustment), which would otherwise (but for thesesubordination provisions) be payable or deliverable in respect of theSecurities shall be paid or delivered directly to the holders of Senior Debt inaccordance with the priorities then existing among such holders until allSenior Debt  (including any interestthereon accruing after the commencement of any Proceeding) shall have been paidin full.

 

(c)           In the event of any Proceeding, afterpayment in full of all sums owing with respect to Senior Debt, the Holders ofthe Securities, together with the holders of any obligations of the Companyranking on a parity with the Securities, shall be entitled to be paid from theremaining assets of the Company the amounts at the time due and owing onaccount of unpaid principal of and any premium and interest (including anyAdditional Interest) on the Securities and such other obligations before anypayment or other distribution, whether in cash, property or otherwise, shall bemade on account of any limited partnership interests of the Company or anyobligations of the Company ranking junior to the Securities and such otherobligations. If, notwithstanding the foregoing, any payment or distribution ofany character on any security, whether in cash, securities or other property(other than securities of the Company or any other entity provided for by aplan of reorganization or readjustment the payment of which is subordinate, atleast to the extent provided in these subordination provisions with respect tothe indebtedness evidenced by the Securities, to the payment of all Senior Debtat the time outstanding and to any securities issued in respect thereof underany such plan of reorganization or readjustment) shall be received by theTrustee or any Holder in contravention of any of the terms hereof and beforeall Senior Debt shall have been paid in full, such payment or distribution orsecurity shall be received in trust for the benefit of, and shall be paid overor delivered and transferred to, the holders of the Senior Debt at the timeoutstanding in accordance with the priorities then existing among such holdersfor application to the payment of all Senior Debt remaining unpaid, to theextent necessary to pay all such Senior Debt (including any interest thereonaccruing after the commencement of any Proceeding) in full. In the event of thefailure of the Trustee or any Holder to endorse or assign any such payment,distribution or security, each holder of Senior Debt is hereby irrevocablyauthorized to endorse or assign the same.

 

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

 

(e)           The provisions of this Section12.2 shall not impair any rights, interests, remedies or powers of anysecured creditor of the Company in respect of any security interest thecreation of which is not prohibited by the provisions of this Indenture.

 

(f)            The securing of any obligations ofthe Company, otherwise ranking on a parity with the Securities or rankingjunior to the Securities, shall not be deemed to prevent such

 

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obligationsfrom constituting, respectively, obligations ranking on a parity with theSecurities or ranking junior to the Securities.

 

SECTION 12.3       *Payment Permitted If NoDefault*.

 

Nothing contained in this Article XII or elsewhere in thisIndenture or in any of the Securities shall prevent (a) the Company, at anytime, 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 bythe Trustee of any moneys deposited with it hereunder to the payment of or onaccount of the principal of and any premium or interest (including anyAdditional Interest) on the Securities or the retention of such payment by theHolders, if, at the time of such application by the Trustee, it did not haveknowledge (in accordance with Section 12.8) that such payment would havebeen prohibited by the provisions of this Article XII, except asprovided in Section 12.8.

 

SECTION 12.4       *Subrogation to Rights ofHolders of Senior Debt*.

 

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

 

SECTION 12.5       *Provisions Solely toDefine Relative Rights*.

 

The provisions of this Article XII are and are intended solelyfor the purpose of defining the relative rights of the Holders of theSecurities 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 orin the Securities is intended to or shall (a) impair, as between the Companyand the Holders of the Securities, the obligations of the Company, which areabsolute and unconditional, to pay to the Holders of the Securities theprincipal of and any premium and interest (including any Additional Interest)on the Securities as and when the same shall become due and payable inaccordance with their terms, (b) affect the relative rights against

 

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the Company of the Holders ofthe Securities and creditors of the Company other than their rights in relationto the holders of Senior Debt or (c) prevent the Trustee or the Holder of anySecurity (or to the extent expressly provided herein, the holder of anyPreferred Security) from exercising all remedies otherwise permitted byapplicable law upon default under this Indenture, including filing and votingclaims in any Proceeding, subject to the rights, if any, under this ArticleXII of the holders of Senior Debt to receive cash, property and securitiesotherwise payable or deliverable to the Trustee or such Holder.

 

SECTION 12.6       *Trustee to EffectuateSubordination*.

 

Each Holder of a Security by his or her acceptance thereof authorizesand directs the Trustee on his or her behalf to take such action as may benecessary or appropriate to acknowledge or effectuate the subordinationprovided in this Article XII and appoints the Trustee his or herattorney-in-fact for any and all such purposes.

 

SECTION 12.7       *No Waiver of SubordinationProvisions*.

 

(a)           No right of any present or futureholder of any Senior Debt to enforce subordination as herein provided shall atany time in any way be prejudiced or impaired by any act or failure to act onthe part of the Company or by any act or failure to act, in good faith, by anysuch holder, or by any noncompliance by the Company with the terms, provisionsand covenants of this Indenture, regardless of any knowledge thereof that anysuch holder may have or be otherwise charged with.

 

(b)           Without in any way limiting thegenerality of paragraph (a) of this Section 12.7, the holders of SeniorDebt may, at any time and from to time, without the consent of or notice to theTrustee or the Holders of the Securities, without incurring responsibility tosuch Holders of the Securities and without impairing or releasing thesubordination provided in this Article XII or the obligations hereunderof such Holders of the Securities to the holders of Senior Debt, do any one ormore of the following: (i) change the manner, place or terms of payment orextend the time of payment of, or renew or alter, Senior Debt, or otherwiseamend or supplement in any manner Senior Debt or any instrument evidencing thesame or any agreement under which Senior Debt is outstanding, (ii) sell,exchange, release or otherwise deal with any property pledged, mortgaged orotherwise securing Senior Debt, (iii) release any Person liable in any mannerfor the payment of Senior Debt and (iv) exercise or refrain from exercising anyrights against the Company and any other Person.

 

SECTION 12.8       *Notice to Trustee*.

 

(a)           The Company shall give prompt writtennotice to a Responsible Officer of the Trustee of any fact known to the Companythat would prohibit the making of any payment to or by the Trustee in respectof the Securities. Notwithstanding the provisions of this Article XII orany other provision of this Indenture, the Trustee shall not be charged withknowledge of the existence of any facts that would prohibit the making of anypayment to or by the Trustee in respect of the Securities, unless and until aResponsible Officer of the Trustee shall have received written notice thereoffrom the Company or a holder of Senior Debt or from any trustee, agent orrepresentative therefor; *provided*that if the Trustee shall not have received the notice

 

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providedfor in this Section 12.8 at least two Business Days prior to the dateupon 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 hereincontained to the contrary notwithstanding, the Trustee shall have full powerand authority to receive such monies and to apply the same to the purpose forwhich they were received and shall not be affected by any notice to thecontrary that may be received by it within two Business Days prior to suchdate.

 

(b)           The Trustee shall be entitled to relyon the delivery to it of a written notice by a Person representing himself orherself to be a holder of Senior Debt (or a trustee, agent, representative orattorney-in-fact therefor) to establish that such notice has been given by aholder of Senior Debt (or a trustee, agent, representative or attorney-in-facttherefor). In the event that the Trustee determines in good faith that furtherevidence is required with respect to the right of any Person as a holder ofSenior Debt to participate in any payment or distribution pursuant to this ArticleXII, the Trustee may request such Person to furnish evidence to thereasonable satisfaction of the Trustee as to the amount of Senior Debt held bysuch Person, the extent to which such Person is entitled to participate in suchpayment or distribution and any other facts pertinent to the rights of suchPerson under this Article XII, and if such evidence is not furnished,the Trustee may defer any payment to such Person pending judicial determinationas to the right of such Person to receive such payment.

 

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

 

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

 

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

 

The Trustee, in its capacity as trustee under this Indenture, shall notbe deemed to owe any fiduciary duty to the holders of Senior Debt and shall notbe liable to any such holders if it shall in good faith mistakenly pay over ordistribute to Holders of Securities or to the Company or to any other Personcash, property or securities to which any holders of Senior Debt shall beentitled by virtue of this Article XII or otherwise.

 

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

 

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

 

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of its rights as such holder.

 

SECTION 12.12     *Article Applicable toPaying Agents*.

 

If at any time any Paying Agent other than the Trustee shall have beenappointed by the Company and be then acting hereunder, the term “Trustee” as used in this ArticleXII shall in such case (unless the context otherwise requires) be construedas extending to and including such Paying Agent within its meaning as fully forall intents and purposes as if such Paying Agent were named in this ArticleXII in addition to or in place of the Trustee; *provided* that Sections 12.8 and 12.11 shallnot apply to the Company or any Affiliate of the Company if the Company or suchAffiliate acts as Paying Agent.

 

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

 

* * * *

 

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

 
|   | GKK CAPITAL  LP |
|--------|-----------------|
|   |
|   | By:             | GRAMERCY CAPITAL CORP., its general partner |
|   |
|   |
|   | By:             |   |   |
|   |            | Name: Marc Holliday |
|   |            | Title: President & Chief Executive Officer |
|   |

 

68

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|   | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,  as Trustee |
|--------|--------------------------------------------------------|
|   |                                                   |
|   |                                                   |
|   | By:                                                    |   |   |
|   |                                                   | Name: |
|   |                                                   | Title: |

 

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** **

**Schedule A**

 

**DETERMINATION OF LIBOR**

 

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

 

(1)           On the second LIBORBusiness Day (as defined below) prior to a Distribution Date after theexpiration of the Fixed Rate Period (each such date, a “*LIBOR Determination Date*”), LIBOR for anygiven security shall for the following interest payment period equal the rate,as obtained by the Calculation Agent from Bloomberg Financial MarketsCommodities News, for three-month Eurodollar deposits that appears on Dow JonesTelerate Page 3750 (as defined in the International Swaps and DerivativesAssociation, Inc. 2000 Interest Rate and Currency Exchange Definitions), orsuch other page as may replace such Page 3750, as of 11:00 a.m. (London time)on such LIBOR Determination Date.

 

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

 

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

 

70

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Exhibit A

 

**Form of Officer’s Financial Certificate**

 

The undersigned, the [Chief Financial Officer/Treasurer/AssistantTreasurer/ Secretary/ Assistant Secretary, Chairman/ViceChairman/ChiefExecutive Officer/President/Vice President] hereby certifies, pursuant toSection 7.3(b) of the Junior Subordinated Indenture, dated as of January 27,2006 (the “Indenture”), among GKK Capital LP (the “Company”) and JPMorgan ChaseBank, National Association, as trustee, that, as of [date], [20    ],the Company, if applicable, and its Subsidiary had the following ratios andbalances (unless otherwise indicated, capitalized terms used herein have themeaning set forth in the Indenture):

 

As of [Quarterly/Annual Financial Date], 20    

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

 

 

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

 

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

 

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

 

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Exhibit A

 

IN WITNESS WHEREOF, the undersigned has executed this Officer’sFinancial Certificate as of this         dayof          ,20   .

 
|   | GKK CAPITAL  LP |
|--------|-----------------|
|   |            |
|   | By:             | GRAMERCY CAPITAL CORP., its general  partner |
|   |            |
|   | By:             |   |   |
|   |            | Name: |
|   |            | Title: |

 

|   | GKK Capital LP       |
|--------|----------------------|
|   | 420 Lexington Avenue |
|   | New York, NY 10170   |
|   | (212) 297-1000       |

 

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