Exhibit 10.24


 


JUNIOR
SUBORDINATED INDENTURE


 


between


 


 


GKK
CAPITAL LP


 


 


and


 


 


JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION,


as Trustee


 


 


Dated as of August 9, 2005


 





















 


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


 


RECITALS OF THE COMPANY


 


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


 


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


 


NOW, THEREFORE, this
Indenture Witnesseth:


 


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


 


ARTICLE I




DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION


 


SECTION 1.1  Definitions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Board
Resolution” means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of


 


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


 


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


 


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


 


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


 


“Common
Securities” has the meaning specified 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 shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean such successor
corporation.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Government
Obligation” means (a) any security that is (i) a direct
obligation of the United States of America of which the full faith and credit
of the United States of America is pledged or (ii) an obligation of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or the payment of which is unconditionally


 


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


 


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


 


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


 


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


 


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


 


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


 


“LIBOR”
has the meaning specified in Schedule A.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Proceeding”
has the meaning specified in Section 12.2.


 


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


 


“Purchase
Agreements” means the two agreements, each dated as of the date
hereof, between the Company and the Trust and the Purchaser(s) named therein.


 


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


 


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


 


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


 


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


 


“Responsible
Officer” means, when used with respect to the Trustee, the officer
in the Worldwide Securities Services department of the Trustee having direct
responsibility for the


 


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administration of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


“Side Letter” means the side letter regarding
additional financings dated August 9, 2005 from the Company and Gramercy
Capital Corp. to the Trust.


 


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


 


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


 


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


 


“Stated
Maturity” means October 30, 2035.


 


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


 


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voting power by reason of any contingency.


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 1.2  Compliance Certificate and
Opinions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 1.3  Forms of Documents
Delivered to Trustee.


 


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


 


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


 


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


 


(d)                                 Whenever,
subsequent to the receipt by the Trustee of any Board Resolution, Officers’
Certificate, Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or omission shall be
discovered therein, a new document or instrument may be substituted therefor in
corrected form with the same force


 


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and effect as if
originally received in the corrected form and, irrespective of the date or
dates of the actual execution and/or delivery thereof, such substitute document
or instrument shall be deemed to have been executed and/or delivered as of the
date or dates required with respect to the document or instrument for which it
is substituted.  Without limiting the
generality of the foregoing, any Securities issued under the authority of such
defective document or instrument shall nevertheless be the valid obligations of
the Company entitled to the benefits of this Indenture equally and ratably with
all other Outstanding Securities.


 


SECTION 1.4 
Acts of Holders.


 


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


 


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


 


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


 


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


 


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


 


12





















 


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


 


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


 


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


 


13





















 


SECTION 1.5  Notices, Etc. to Trustee
and Company.


 


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


 


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


 


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


 


SECTION 1.6  Notice to Holders; Waiver.


 


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


 


SECTION 1.7  Effect of Headings and
Table of Contents.


 


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


 


SECTION 1.8  Successors and Assigns.


 


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


 


14





















 


Company shall not assign its obligations hereunder.


 


SECTION 1.9  Separability Clause.


 


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


 


SECTION 1.10  Benefits of Indenture.


 


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


 


SECTION 1.11 
Governing Law.


 


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


 


SECTION 1.12  Submission to Jurisdiction.


 


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


 


SECTION 1.13  Non-Business Days.


 


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


 


15





















 


Date or Redemption Date or at the Stated Maturity.


 


ARTICLE II




SECURITY FORMS


 


SECTION 2.1 
Form of Security.


 


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


 


GKK CAPITAL LP


 


Floating Rate Junior Subordinated Note due
2035


 


	
  No.           

  	
  $51,550,000

  



 


GKK Capital LP, a limited partnership
organized and existing under the laws of Delaware (hereinafter called the “Company,” which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to JPMorgan Chase Bank, National Association,
not in its individual capacity, but solely as Property Trustee for Gramercy
Capital Trust II, or registered assigns, the principal sum of Fifty One Million
Five Hundred Fifty Thousand Dollars ($51,550,000) [if the Security is a Global Security,
then insert — or
such other principal amount represented hereby as may be set forth in the
records of the Securities Registrar hereinafter referred to in accordance with
the Indenture] on October 30, 2035. The Company further
promises to pay interest on said principal sum from August 9, 2005, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on January 30, April 30, July 30 and October 30 of
each year, commencing October 30, 2005, or if any such day is not a
Business Day, on the next succeeding Business Day (and no interest shall accrue
in respect of the amounts whose payment is so delayed for the period from and
after such Interest Payment Date until such next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on the Interest Payment Date,
at a fixed rate equal to 7.75% per annum through the interest payment date in October 2015
(“Fixed Rate Period”) and thereafter at a variable rate equal to LIBOR
plus 3.00% per annum, together with Additional Tax Sums, if any, as provided in
Section 10.5 of the Indenture, until the principal hereof is paid
or duly provided for or made available for payment; provided, further,
that any overdue principal, premium, if any, or Additional Tax Sums and any
overdue installment of interest shall bear Additional Interest at a fixed rate
equal to 7.75% through the interest payment date in October 2015 and
thereafter at a variable rate equal to LIBOR plus 3.00% per annum (to the extent
that the payment of such interest shall be legally enforceable), compounded
quarterly, from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand.


 


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


 


16





















 


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


 


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


 


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


 


17





















 


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


 


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


 


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


 


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


 


18





















 


[FORM OF REVERSE OF SECURITY]


 


This Security is one of a duly authorized
issue of securities of the Company (the “Securities”)
issued under the Junior Subordinated Indenture, dated as of August 9, 2005
(the “Indenture”), between the
Company and JPMorgan Chase Bank, National Association, as Trustee (in such
capacity, the “Trustee,” which
term includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior Debt,
the Holders of the Securities and the holders of the Preferred Securities, and
of the terms upon which the Securities are, and are to be, authenticated and
delivered.


 


All terms used in this Security that are
defined in the Indenture or in the Amended and Restated Trust Agreement, dated
as of August 9, 2005 (as modified, amended or supplemented from time to
time, the “Trust Agreement”),
relating to the Gramercy Capital Trust II (the “Trust”) among the Company, as Depositor, the Trustees named
therein and the Holders from time to time of the Trust Securities issued
pursuant thereto, shall have the meanings assigned to them in the Indenture or
the Trust Agreement, as the case may be.


 


The Company may, on any Interest Payment
Date, at its option, upon not less than thirty (30) days’ nor more than sixty
(60) days’ written notice to the Holders of the Securities (unless a shorter
notice period shall be satisfactory to the Trustee) on or after October 30,
2010 and subject to the terms and conditions of Article XI of the
Indenture, redeem this Security in whole at any time or in part from time to
time at a Redemption Price equal to one hundred percent (100%) of the principal
amount hereof, together, in the case of any such redemption, with accrued
interest, including any Additional Interest, through but excluding the date
fixed as the Redemption Date.


 


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


 


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


 


The Indenture permits, with certain
exceptions as therein provided, the Company and the Trustee at any time to
enter into a supplemental indenture or indentures for the purpose of modifying
in any manner the rights and obligations of the Company and of the Holders of
the


 


19





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


This Security shall
be construed and enforced in accordance with and governed by 


 


20





















 


the laws of the State of New York, without
reference to its conflict of laws provisions (other than Section 5-1401 of
the General Obligations Law).


 


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


 


	
   

  	
  GKK Capital LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


SECTION 2.2  Restricted Legend.


 


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


 


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


 


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


 


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


 


21





















 


OF THE SECURITIES MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A UNDER THE SECURITIES ACT.


 


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


 


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


 


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


 


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


 


SECTION 2.3  Form of Trustee’s
Certificate of Authentication.


 


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


 


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


 


Dated:


 


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  	
   

  



 


SECTION 2.4  Temporary Securities.


 


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


 


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


 


SECTION 2.5  Definitive Securities.


 


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


 


23





















 


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


 


ARTICLE III


 


THE SECURITIES


 


SECTION 3.1  Payment of Principal and Interest.


 


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


 


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


 


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


 


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


 


(i)                                     The
Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest (a “Special
Record Date”), which shall be fixed in the following manner.  At least thirty (30) days prior to the date
of the proposed payment, the Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons


 


24





















 


entitled to such Defaulted Interest. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest, which shall be not more than fifteen (15) days and not less than ten (10) days
prior to the date of the proposed payment and not less than ten (10) days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first class, postage prepaid, to each Holder of a Security at the address of
such Holder as it appears in the Securities Register not less than ten (10) days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered on such
Special Record Date; or


 


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


 


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


 


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


 


25





















 


(f)                                    The
parties hereto acknowledge and agree that the holders of the Preferred
Securities have certain rights to direct the Company to modify the Interest
Payment Dates and corresponding Redemption Date and Stated Maturity of the
Securities or a portion of the Securities pursuant to the Purchase
Agreement.  In the event any such
modifications are made to the Securities or a portion of the Securities, appropriate
changes to the form of Security set forth in Article II hereof shall be
made prior to the issuance and authentication of new or replacement
Securities.  Any such modification of the
Interest Payment Date and corresponding Redemption Date and Stated Maturity
with respect to any Securities or tranche of Securities shall not require or be
subject to the consent of the Trustee.


 


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


 


SECTION 3.2 
Denominations.


 


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


 


SECTION 3.3  Execution, Authentication,
Delivery and Dating.


 


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


 


(i)                                     a
copy of any Board Resolution relating thereto; and


 


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


 


26





















 


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


 


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


 


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


 


SECTION 3.4  Global Securities.


 


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


 


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


 


27





















 


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


 


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


 


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


 


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


 


(f)                                    The
Depositary or its nominee, as the registered owner of a Global Security, shall
be the Holder of such Global Security for all purposes under this Indenture and
the Securities, and owners of beneficial interests in a Global Security shall
hold such interests pursuant to the Applicable Depositary Procedures.
Accordingly, any such owner’s beneficial interest in a Global Security shall be
shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its Depositary
Participants.  The Securities Registrar
and the Trustee shall be entitled to deal with the Depositary for all purposes
of this Indenture relating to a Global Security (including the payment of principal
and interest thereon and the giving of instructions or directions by owners of
beneficial interests therein and the giving of notices) as the sole Holder of
the Security and shall have no obligations to the


 


28





















 


owners of
beneficial interests therein.  Neither
the Trustee nor the Securities Registrar shall have any liability in respect of
any transfers effected by the Depositary.


 


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


 


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


 


SECTION 3.5  Registration, Transfer and
Exchange Generally.


 


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


 


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


 


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


 


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


 


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


 


29





















 


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


 


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


 


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


 


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


 


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


 


(j)                                     Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of or
any exemptions from the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the United States Internal
Revenue Code of 1986, as amended, or the Investment Company Act; provided, that if a certificate is specifically required by
the express terms of this Section 3.5 to be delivered to the Trustee or
the Securities Registrar by a Holder or transferee of a Security, the Trustee
and the Securities Registrar shall be under a duty to receive and examine the
same to determine whether or not the certificate substantially conforms on its
face to the requirements of this Indenture and shall promptly notify the party
delivering the same if such certificate does not comply with such terms


 


SECTION 3.6  Mutilated, Destroyed, Lost
and Stolen Securities.


 


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


 


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


 


30





















 


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


 


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


 


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


 


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


 


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


 


SECTION 3.7  Persons Deemed Owners.


 


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


 


SECTION 3.8 
Cancellation.


 


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


 


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SECTION 3.9  Deferrals of Interest
Payment Dates.


 


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


 


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


 


SECTION 3.10 
Reserved.


 


SECTION 3.11  Agreed Tax Treatment.


 


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


 


SECTION 3.12 
CUSIP Numbers.


 


The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP”
numbers in notices of redemption and other similar or related materials as a
convenience to Holders; provided, that any such notice or other


 


32





















 


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


 


ARTICLE IV




SATISFACTION AND DISCHARGE


 


SECTION 4.1  Satisfaction and Discharge
of Indenture.


 


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


 


(a)                                  either


 


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


 


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


 


(A)                              have
become due and payable, or


 


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


 


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


 


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


 


33





















 


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


 


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


 


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


 


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


 


SECTION 4.2  Application of Trust Money.


 


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


 


ARTICLE V




REMEDIES


 


SECTION 5.1 
Events of Default.


 


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


 


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


 


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


 


34





















 


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


 


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


 


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


 


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


 


SECTION 5.2  Acceleration of Maturity;
Rescission and Annulment.


 


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


 


35





















 


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


 


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


 


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


 


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


 


(B)                                any
accrued Additional Interest on all Securities,


 


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


 


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


 


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


 


provided, that if the Holders of such Securities fail to annul such
declaration and waive such default, the holders of not less than a majority in
aggregate Liquidation Amount of the Preferred Securities then outstanding shall
also have the right to rescind and annul such declaration and its consequences
by written notice to the Property Trustee, the Company and the Trustee, subject
to the satisfaction of the conditions set forth in paragraph (b) of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.


 


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


 


(a)                                  The
Company covenants that if:


 


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


 


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


 


36





















 


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


 


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


 


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


 


SECTION 5.4  Trustee May File
Proofs of Claim.


 


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


 


SECTION 5.5  Trustee May Enforce
Claim Without Possession of Securities.


 


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


 


37





















 


SECTION 5.6  Application of Money
Collected.


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.7  Limitation on Suits.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


38





















 


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


 


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


 


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


 


SECTION 5.9  Restoration of Rights and
Remedies.


 


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


 


SECTION 5.10  Rights and Remedies
Cumulative.


 


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


 


SECTION 5.11  Delay or Omission Not
Waiver.


 


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


 


39





















 


SECTION 5.12  Control by
Holders.


 


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


 


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


 


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


 


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


 


SECTION 5.13  Waiver of Past Defaults.


 


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


 


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


 


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


 


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


 


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


 


SECTION 5.14  Undertaking for Costs.


 


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


 


40





















 


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


 


SECTION 5.15  Waiver of Usury, Stay or
Extension Laws.


 


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


 


ARTICLE VI


 


THE TRUSTEE


 


SECTION 6.1  Corporate Trustee Required.


 


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


 


SECTION 6.2  Certain Duties and
Responsibilities.


 


(a)                                  Except
during the continuance of an Event of Default:


 


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


 


(ii)                                  in
the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed
therein,


 


41





















 


upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; provided,
that in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
substantially conform on their face to the requirements of this Indenture.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.3  Notice of Defaults.


 


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


 


SECTION 6.4  Certain Rights of Trustee.


 


Subject to the provisions of Section 6.2:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.5  May Hold Securities.


 


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


 


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SECTION 6.6  Compensation;
Reimbursement; Indemnity.


 


(a)                                  The
Company agrees:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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SECTION 6.7  Resignation and Removal;
Appointment of Successor.


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.8  Acceptance of Appointment
by Successor.


 


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


 


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


 


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


 


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


 


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


 


SECTION 6.10  Not Responsible for
Recitals or Issuance of Securities.


 


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


 


SECTION 6.11  Appointment of
Authenticating Agent.


 


(a)                                  The
Trustee may appoint an Authenticating Agent or Agents with respect to the
Securities, which shall be authorized to act on behalf of the Trustee to
authenticate Securities issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section 3.6,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than


 


48





















 


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


 


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


 


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


 


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


 


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


 


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


 


	
  Dated:

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL

  ASSOCIATION, not in its individual capacity, but

  solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Authenticating Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  
	
   

  	
   

  	
  Authorized Signatory

  



 


49





















 


ARTICLE VII




HOLDER’S LISTS AND REPORTS BY COMPANY


 


SECTION 7.1  Company to Furnish Trustee
Names and Addresses of Holders.


 


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


 


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


 


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


 


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


 


SECTION 7.2  Preservation of
Information, Communications to Holders.


 


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


 


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


 


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


 


SECTION 7.3  Reports by Company.


 


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


 


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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 of the Securities reasonably
identified to the Company (which identification may be made either by such
beneficial owner or by Taberna Capital Management LLC), a duly completed and
executed certificate substantially and substantively in the form attached
hereto as Exhibit A, including the financial statements referenced
in such Exhibit, which certificate and financial statements shall be so
furnished by the Company not later than forty-five (45) days after the end of
each of the first three fiscal quarters of each fiscal year of the Company and
not later than ninety (90) days after the end of each fiscal year of the
Company. The delivery requirements under this Section 7.3(b) may
be satisfied by compliance with Section 8.16(b) of the Trust
Agreement.


 


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


 


ARTICLE VIII


 


CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE


 


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


 


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


 


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


 


51





















 


by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest (including any Additional Interest) on all the
Securities and the performance of every covenant of this Indenture on the part
of the Company to be performed or observed;


 


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


 


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


 


SECTION 8.2  Successor Company
Substituted.


 


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


 


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


 


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


 


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ARTICLE IX


 


SUPPLEMENTAL INDENTURES


 


SECTION 9.1  Supplemental Indentures
without Consent of Holders.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 9.2  Supplemental Indentures
with Consent of Holders.


 


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


 


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


 


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


 


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


 


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


 


SECTION 9.3  Execution of Supplemental
Indentures.


 


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


 


SECTION 9.4  Effect of Supplemental
Indentures.


 


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


 


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


 


SECTION 9.5  Reference in Securities to
Supplemental Indentures.


 


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


 


ARTICLE X


 


COVENANTS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECTION 10.3  Statement as to Compliance.


 


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


 


SECTION 10.4  Calculation Agent.


 


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


 


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


 


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


 


SECTION 10.5  Additional Tax Sums.


 


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


 


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


 


SECTION 10.6  Additional Covenants.


 


(a)                                  The
Company covenants and agrees with each Holder of Securities that if an Event of
Default shall have occurred and be continuing or the Company shall have given
notice of its election to begin an Extension Period with respect to the
Securities or such Extension Period, or any extension thereof, shall be
continuing, it shall not (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire or make a liquidation payment with respect to,
any units of the Company’s limited partnership interests, (ii) vote in
favor of or permit or otherwise allow any of its subsidiaries to declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any shares of such
subsidiaries preferred stock (for the avoidance of doubt, whether such
preferred stock is perpetual or otherwise), or (iii) make any payment of
principal of or any interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company that rank pari passu in
all respects with or junior in interest to the Securities (other than (A) repurchases,
redemptions or other acquisitions of units of limited partnership interests of
the Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or limited partnership interests purchase plan or in connection with the
issuance of limited partnership interests of the Company (or securities
convertible into or exercisable for such units of limited partnership
interests) as consideration in an acquisition transaction entered into prior to
the Event of Default or the applicable Extension Period, (B) as a result
of an exchange or conversion of any class or series of the Company’s limited
partnership interests (or any capital stock or limited partnership interests of
a Subsidiary of the Company) for any class or series of the Company’s limited
partnership interests or of any class or series of the Company’s indebtedness
for any class or series of the Company’s limited partnership interests, (C) the
purchase of fractional interests in the Company’s limited partnership interests
pursuant to the conversion or exchange provisions of such limited partnership
interests or the security being converted or exchanged, (D) any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, limited partnership interests or other property under any Rights Plan
or the redemption or repurchase of rights pursuant thereto or (E) any
dividend in the form of limited partnership interests, warrants, options or
other rights where the dividend limited partnership interests or the limited
partnership interests issuable upon exercise of such warrants, options or other
rights is the same limited partnership interests as that on which the dividend
is being paid or ranks pari passu
with or junior to such limited partnership interests).


 


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


 


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to cause the Trust
to continue to be taxable as a grantor trust and not as a corporation for
United States Federal income tax purposes.


 


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


 


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


 


SECTION 10.7  Waiver of Covenants.


 


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


 


SECTION 10.8  Treatment of Securities.


 


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


 


ARTICLE XI


 


REDEMPTION OF SECURITIES


 


SECTION 11.1  Optional Redemption.


 


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


 


SECTION 11.2  Special Event Redemption.


 


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


 


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


 


SECTION 11.3  Election to Redeem; Notice
to Trustee.


 


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


 


SECTION 11.4  Selection of Securities to
be Redeemed.


 


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


 


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


 


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


 


SECTION 11.5  Notice of Redemption.


 


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


 


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redeemed, in whole
or in part (unless a shorter notice shall be satisfactory to the Property
Trustee under the related Trust Agreement).


 


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


 


(i)                                     the
Redemption Date;


 


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


 


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


 


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


 


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


 


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


 


SECTION 11.6  Deposit of Redemption
Price.


 


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


 


SECTION 11.7  Payment of Securities
Called for Redemption.


 


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


 


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


 


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


 


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


 


ARTICLE XII


 


SUBORDINATION OF SECURITIES


 


SECTION 12.1  Securities Subordinate to
Senior Debt.


 


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


 


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


 


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


 


(b)                                 In
the event of a bankruptcy, insolvency or other proceeding described in clause (d) or
(e) of the definition of Event of Default (each such event, if any, herein
sometimes referred to as a “Proceeding”),
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or


 


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


 


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


 


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


 


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


 


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


 


SECTION 12.3  Payment Permitted If No
Default.


 


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


 


SECTION 12.4  Subrogation to Rights of
Holders of Senior Debt.


 


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


 


SECTION 12.5  Provisions Solely to
Define Relative Rights.


 


The provisions of this Article XII
are and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities on the one hand and the holders of Senior Debt on
the other hand. Nothing contained in this Article XII or elsewhere
in this Indenture or in the Securities is intended to or shall (a) impair,
as between the Company and the Holders of the Securities, the obligations of
the Company, which are absolute and unconditional, to pay to the Holders of the
Securities the principal of and any premium and


 


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


 


SECTION 12.6  Trustee to Effectuate
Subordination.


 


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


 


SECTION 12.7  No Waiver of Subordination
Provisions.


 


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


 


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


 


SECTION 12.8  Notice to Trustee.


 


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


 


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received written
notice thereof from the Company or a holder of Senior Debt or from any trustee,
agent or representative therefor; provided, that if the Trustee shall not have received the notice
provided for in this Section 12.8 at least two Business Days prior
to the date upon which by the terms hereof any monies may become payable for
any purpose (including, the payment of the principal of and any premium on or
interest (including any Additional Interest) on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received and shall not be affected by any notice to the
contrary that may be received by it within two Business Days prior to such
date.


 


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


 


SECTION 12.9  Reliance on Judicial Order
or Certificate of Liquidating Agent.


 


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


 


SECTION 12.10  Trustee Not Fiduciary for
Holders of Senior Debt.


 


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


 


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


 


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


 


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


 


SECTION 12.12  Article Applicable to
Paying Agents.


 


If at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and be then acting
hereunder, the term “Trustee”
as used in this Article XII shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article XII in addition to or in
place of the Trustee; provided, that Sections 12.8 and 12.11 shall not apply
to the Company or any Affiliate of the Company if the Company or such Affiliate
acts as Paying Agent.


 


****


 


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


 


* * * *


 


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


 


	
   

  	
  GKK CAPITAL LP

  
	
   

  	
   

  
	
   

  	
  By: GRAMERCY CAPITAL CORP., its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Marc Holliday

  
	
   

  	
   

  	
  Title: President & Chief Executive
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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Schedule A


 


DETERMINATION OF LIBOR


 


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


 


(1)                                  On the second LIBOR
Business Day (as defined below) prior to an Interest Payment Date (except with
respect to the first interest payment period, such date shall be August 5,
2005) (each such day, a “LIBOR Determination
Date”), LIBOR for any given security shall for the following
interest payment period equal the rate, as obtained by the Calculation Agent
from Bloomberg Financial Markets Commodities News, for three-month Eurodollar
deposits that appears on Dow Jones Telerate Page 3750 (as defined in the
International Swaps and Derivatives Association, Inc. 2000 Interest Rate
and Currency Exchange Definitions), or such other page as may replace such
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date.


 


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


 


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


 


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