Exhibit
10.10


Execution
Copy


JUNIOR
SUBORDINATED INDENTURE


between


BRESLER &
REINER, INC.


and


JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,


as
Trustee






Dated as of May
31, 2006





















 


TABLE OF CONTENTS


	
  

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  Definitions And Other
  Provisions Of General Application

  	
  1

  
	
  SECTION 1.1

  	
  Definitions.

  	
  1

  
	
  SECTION 1.2

  	
  Compliance Certificate
  and Opinions.

  	
  11

  
	
  SECTION 1.3

  	
  Forms of Documents
  Delivered to Trustee.

  	
  11

  
	
  SECTION 1.4

  	
  Acts of Holders.

  	
  12

  
	
  SECTION 1.5

  	
  Notices, Etc. to
  Trustee and Company.

  	
  14

  
	
  SECTION 1.6

  	
  Notice to Holders;
  Waiver.

  	
  14

  
	
  SECTION 1.7

  	
  Effect of Headings and
  Table of Contents.

  	
  15

  
	
  SECTION 1.8

  	
  Successors and Assigns.

  	
  15

  
	
  SECTION 1.9

  	
  Separability Clause.

  	
  15

  
	
  SECTION 1.10

  	
  Benefits of Indenture.

  	
  15

  
	
  SECTION 1.11

  	
  Governing Law.

  	
  15

  
	
  SECTION 1.12

  	
  Submission to
  Jurisdiction.

  	
  15

  
	
  SECTION 1.13

  	
  Non-Business Days.

  	
  16

  
	
  ARTICLE II

  	
  Security Forms

  	
  16

  
	
  SECTION 2.1

  	
  Form of Security.

  	
  16

  
	
  SECTION 2.2

  	
  Restricted Legend.

  	
  21

  
	
  SECTION 2.3

  	
  Form of Trustee’s
  Certificate of Authentication.

  	
  23

  
	
  SECTION 2.4

  	
  Temporary Securities.

  	
  23

  
	
  SECTION 2.5

  	
  Definitive Securities.

  	
  23

  
	
  ARTICLE III

  	
  The Securities

  	
  24

  
	
  SECTION 3.1

  	
  Payment of Principal
  and Interest.

  	
  24

  
	
  SECTION 3.2

  	
  Denominations.

  	
  26

  
	
  SECTION 3.3

  	
  Execution,
  Authentication, Delivery and Dating.

  	
  26

  
	
  SECTION 3.4

  	
  Global Securities.

  	
  27

  
	
  SECTION 3.5

  	
  Registration, Transfer
  and Exchange Generally.

  	
  29

  
	
  SECTION 3.6

  	
  Mutilated, Destroyed,
  Lost and Stolen Securities.

  	
  31

  
	
  SECTION 3.7

  	
  Persons Deemed Owners.

  	
  31

  
	
  SECTION 3.8

  	
  Cancellation.

  	
  32

  
				



 



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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 3.9

  	
  Reserved

  	
  32

  
	
  SECTION 3.10

  	
  Reserved.

  	
  32

  
	
  SECTION 3.11

  	
  Agreed Tax Treatment.

  	
  32

  
	
  SECTION 3.12

  	
  CUSIP Numbers.

  	
  32

  
	
  ARTICLE IV

  	
  Satisfaction And
  Discharge

  	
  33

  
	
  SECTION 4.1

  	
  Satisfaction and
  Discharge of Indenture.

  	
  33

  
	
  SECTION 4.2

  	
  Application of Trust
  Money.

  	
  34

  
	
  ARTICLE V

  	
  Remedies

  	
  34

  
	
  SECTION 5.1

  	
  Events of Default.

  	
  34

  
	
  SECTION 5.2

  	
  Acceleration of
  Maturity; Rescission and Annulment.

  	
  35

  
	
  SECTION 5.3

  	
  Collection of Indebtedness
  and Suits for Enforcement by Trustee.

  	
  36

  
	
  SECTION 5.4

  	
  Trustee May File Proofs
  of Claim.

  	
  37

  
	
  SECTION 5.5

  	
  Trustee May Enforce
  Claim Without Possession of Securities.

  	
  37

  
	
  SECTION 5.6

  	
  Application of Money
  Collected.

  	
  38

  
	
  SECTION 5.7

  	
  Limitation on Suits.

  	
  38

  
	
  SECTION 5.8

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

  	
  39

  
	
  SECTION 5.9

  	
  Restoration of Rights
  and Remedies.

  	
  39

  
	
  SECTION 5.10

  	
  Rights and Remedies
  Cumulative.

  	
  39

  
	
  SECTION 5.11

  	
  Delay or Omission Not
  Waiver.

  	
  40

  
	
  SECTION 5.12

  	
  Control by Holders.

  	
  40

  
	
  SECTION 5.13

  	
  Waiver of Past
  Defaults.

  	
  40

  
	
  SECTION 5.14

  	
  Undertaking for Costs.

  	
  41

  
	
  SECTION 5.15

  	
  Waiver of Usury, Stay
  or Extension Laws.

  	
  41

  
	
  ARTICLE VI

  	
  The Trustee

  	
  41

  
	
  SECTION 6.1

  	
  Corporate Trustee
  Required.

  	
  41

  
	
  SECTION 6.2

  	
  Certain Duties and
  Responsibilities.

  	
  42

  
	
  SECTION 6.3

  	
  Notice of Defaults.

  	
  44

  
	
  SECTION 6.4

  	
  Certain Rights of
  Trustee.

  	
  44

  
	
  SECTION 6.5

  	
  May Hold Securities.

  	
  46

  
				



 



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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 6.6

  	
  Compensation;
  Reimbursement; Indemnity.

  	
  46

  
	
  SECTION 6.7

  	
  Resignation and
  Removal; Appointment of Successor.

  	
  47

  
	
  SECTION 6.8

  	
  Acceptance of
  Appointment by Successor.

  	
  48

  
	
  SECTION 6.9

  	
  Merger, Conversion,
  Consolidation or Succession to Business.

  	
  48

  
	
  SECTION 6.10

  	
  Not Responsible for
  Recitals or Issuance of Securities.

  	
  49

  
	
  SECTION 6.11

  	
  Appointment of
  Authenticating Agent.

  	
  49

  
	
  ARTICLE VII

  	
  Holder’s Lists And
  Reports By Company

  	
  50

  
	
  SECTION 7.1

  	
  Company to Furnish
  Trustee Names and Addresses of Holders.

  	
  50

  
	
  SECTION 7.2

  	
  Preservation of
  Information, Communications to Holders.

  	
  51

  
	
  SECTION 7.3

  	
  Reports by Company.

  	
  51

  
	
  ARTICLE VIII

  	
  Consolidation, Merger,
  Conveyance, Transfer Or Lease

  	
  52

  
	
  SECTION 8.1

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

  	
  52

  
	
  SECTION 8.2

  	
  Successor Company
  Substituted.

  	
  53

  
	
  ARTICLE IX

  	
  Supplemental Indentures

  	
  53

  
	
  SECTION 9.1

  	
  Supplemental Indentures
  without Consent of Holders.

  	
  53

  
	
  SECTION 9.2

  	
  Supplemental Indentures
  with Consent of Holders.

  	
  54

  
	
  SECTION 9.3

  	
  Execution of Supplemental
  Indentures.

  	
  55

  
	
  SECTION 9.4

  	
  Effect of Supplemental
  Indentures.

  	
  55

  
	
  SECTION 9.5

  	
  Reference in Securities
  to Supplemental Indentures.

  	
  55

  
	
  ARTICLE X

  	
  Covenants

  	
  56

  
	
  SECTION 10.1

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

  	
  56

  
	
  SECTION 10.2

  	
  Money for Security
  Payments to be Held in Trust.

  	
  56

  
	
  SECTION 10.3

  	
  Statement as to
  Compliance.

  	
  57

  
	
  SECTION 10.4

  	
  Calculation Agent.

  	
  57

  
	
  SECTION 10.5

  	
  Additional Tax Sums.

  	
  58

  
	
  SECTION 10.6

  	
  Additional Covenants.

  	
  58

  
	
  SECTION 10.7

  	
  Waiver of Covenants.

  	
  59

  
	
  SECTION 10.8

  	
  Treatment of
  Securities.

  	
  59

  
	
  SECTION 10.9

  	
  Financial Covenant.

  	
  60

  
	
  ARTICLE XI

  	
  Redemption Of
  Securities

  	
  60

  
	
  SECTION 11.1

  	
  Optional Redemption.

  	
  60

  
				



 



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  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 11.2

  	
  Special Event
  Redemption.

  	
  60

  
	
  SECTION 11.3

  	
  Election to Redeem;
  Notice to Trustee.

  	
  61

  
	
  SECTION 11.4

  	
  Selection of Securities
  to be Redeemed.

  	
  61

  
	
  SECTION 11.5

  	
  Notice of Redemption.

  	
  62

  
	
  SECTION 11.6

  	
  Deposit of Redemption
  Price.

  	
  63

  
	
  SECTION 11.7

  	
  Payment of Securities
  Called for Redemption.

  	
  63

  
	
  ARTICLE XII

  	
  Subordination Of
  Securities

  	
  63

  
	
  SECTION 12.1

  	
  Securities Subordinate
  to Senior Debt.

  	
  63

  
	
  SECTION 12.2

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

  	
  63

  
	
  SECTION 12.3

  	
  Payment Permitted If No
  Default.

  	
  65

  
	
  SECTION 12.4

  	
  Subrogation to Rights
  of Holders of Senior Debt.

  	
  65

  
	
  SECTION 12.5

  	
  Provisions Solely to
  Define Relative Rights.

  	
  66

  
	
  SECTION 12.6

  	
  Trustee to Effectuate
  Subordination.

  	
  66

  
	
  SECTION 12.7

  	
  No Waiver of
  Subordination Provisions.

  	
  66

  
	
  SECTION 12.8

  	
  Notice to Trustee.

  	
  67

  
	
  SECTION 12.9

  	
  Reliance on Judicial
  Order or Certificate of Liquidating Agent.

  	
  67

  
	
  SECTION 12.10

  	
  Trustee Not Fiduciary
  for Holders of Senior Debt.

  	
  68

  
	
  SECTION 12.11

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

  	
  68

  
	
  SECTION 12.12

  	
  Article Applicable to
  Paying Agents.

  	
  68

  
				



 



 iv
 









 


	
  

  	
  Page

  
	
   

  	
   

  
	
  SCHEDULES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule A

  	
  –

  	
  Determination of LIBOR

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  –

  	
  Form of Officer’s Financial Certificate

  	
   

  



 



 v















JUNIOR SUBORDINATED INDENTURE, dated as of May 31,
2006, between Bresler & Reiner, Inc., a Delaware corporation (the “Company”), and JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, a national banking corporation, as Trustee (in such
capacity, the “Trustee”).


RECITALS OF THE
COMPANY


WHEREAS, the Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance of its unsecured
junior subordinated notes (the “Securities”)
issued to evidence loans made to the Company of the proceeds from the issuance
by Bresler & Reiner Statutory 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;









 



(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.



 2
 






 



“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 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.


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


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


“Common Stock”
means the common stock, par value $0.01 per share, of the Company.


“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 77002 Attn: Worldwide Securities Services—Bresler & Reiner
Statutory Trust II. Initially, all notices and correspondence shall be addressed
to Mudassir Mohamed, telephone number (713) 216-2826.


“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



 3
 






 



obligation of the type
referred to in clauses (i) through (vi) of another Person and all dividends of
another Person the payment of which, in either case, such Person has guaranteed
or is responsible or liable for, directly or indirectly, as obligor or otherwise;
and (viii) any renewals, extensions, refundings, amendments or modifications of
any obligation of the type referred to in clauses (i) through (vii).


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


“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.


“EBITDA” means, for any period, without
duplication, Net Income for the Company and its consolidated subsidiaries on a
consolidated basis as determined in accordance with GAAP, plus (i) interest
expense, (ii) charges against income for federal, state and local taxes, (iii)
depreciation and amortization expense, (iv) extraordinary items, and (v) other
non-cash charges and expenses, for the Company and its consolidated
subsidiaries on a consolidated basis all as determined in accordance with GAAP.


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


“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.



 4
 






 



“Fixed Rate Period”
has the meaning specified 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 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 Charges” means for any period,
without duplication, the aggregate amount of interest which, in accordance with
GAAP, would be included on an income statement for the Company and its
consolidated subsidiaries on a consolidated basis as interest incurred
(including interest included in the cost of sales), excluding all interest
capitalized or deferred during such period.


“Interest Payment
Date” means January 30, April 30, July 30, and October 30 of each
year, commencing on July 30, 2006, 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



 5
 






 



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.


“Net Income” means, with reference to any period, the net
income (or loss) of the Company and its subsidiaries for such period (taken as
a cumulative whole), as determined in accordance with GAAP, after eliminating
all offsetting debits and credits between the Company and its subsidiaries and
all other items required to be eliminated in the course of the preparation of
consolidated financial statements of the Company and its subsidiaries in
accordance with GAAP.


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


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


“Operative
Documents” means the Trust Agreement, the Indenture, the Purchase
Agreement 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:



 6
 






 



(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 in trust for the Holders of such Securities;
provided, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and


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


“Paying Agent”
means the Trustee or any Person (other than the Company or any Affiliate of the
Company) 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, limited liability
company, trust, unincorporated association, 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.



 7
 






 



“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 Agreement”
means the Purchase Agreement or Purchase Agreements (whether one or more)
executed and delivered contemporaneously with this Indenture by the Trust, the
Company and the purchaser(s), named therein, as the same may be amended from
time to time.


“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 administration of this Indenture.


“Rights Plan”
means a plan of the Company providing for the issuance by the Company to all
holders of its Equity Interests of rights entitling the holders thereof to
subscribe for or purchase Equity Interests or any class or series of Equity
Interests in the Company which rights (i) are deemed to be transferred with
such Equity Interests and (ii) are also issued in respect of future issuances
of such Equity 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.



 8
 






 



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


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


“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 July 30, 2036.


“Subordinate Debt”
means any Debt that is subordinated in right of payment and security to the
Securities in a manner reasonably acceptable to the holders of the Trust
Securities.


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


“Tangible Net Worth”
means, at any time,


(a)           the total
assets of the Company and its subsidiaries which would be shown as assets on a
consolidated balance sheet of the Company and its subsidiaries as of such time
prepared in accordance with GAAP, after eliminating all amounts properly
attributable to minority interests, if any, in the stock and surplus of
subsidiaries, minus


(b)           Total Liabilities, minus



 9
 






 



(c)           the net book value of all assets,
after deducting any reserves applicable thereto, which would be treated as
intangible under GAAP, including, without limitation, good will, trademarks,
trade names, service marks, brand names, copyrights, patents and unamortized
debt discount and expense, organizational expenses and the excess of the equity
in any subsidiary over the cost of the investment in such subsidiary.


“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.


“Total Liabilities” means the total liabilities of the Company and its
subsidiaries which would be shown as liabilities on a consolidated balance
sheet of the Company and its subsidiaries as of such time prepared in
accordance with GAAP.


“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, 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.



 10














 


“Unsecured Debt”
means with respect to any Person, any Debt of such Person that is not secured
in any manner by any liens on any property, including, without limitation, the
Securities. It is agreed that for purposes of this definition and Section
10.9(c), Unsecured Debt shall not include bank lines of credit.


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 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



 11
 






 



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 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
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine.



 12
 






 



(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.


(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



 13
 






 



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.


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 11200 Rockville Pike, Suite 502, Rockville, MD
20852 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



 14
 






 



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 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



 15
 






 



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 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:


Bresler & Reiner,
Inc.


Junior Subordinated Note
due 2036


	
  No.

  	
  $

  



 


Bresler & Reiner, Inc., a corporation 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 of Bresler &
Reiner Statutory Trust II, or registered assigns, the principal sum of Thirty
Million Nine Hundred Thirty Thousand Dollars ($30,930,000) on July 30, 2036.
The Company further promises to pay interest on said principal sum from May 31,
2006, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, quarterly in arrears on January 30, April 30, July
30 and October 30, of each year, commencing July 30, 2006, 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 9.02% per annum through the interest
payment date on



 16
 






 



July 30, 2011 (“Fixed Rate Period”) and thereafter at a
variable rate equal to LIBOR plus 3.50% 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 9.02% through the interest payment date on July 30,
2011 and thereafter at a variable rate equal to LIBOR plus 3.50% 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.


The amount of interest payable on any Interest Payment
Date shall be computed during the Fixed Rate Period on the basis of a 360-day
year of twelve 30-day months, and thereafter 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.


During an Event of Default, 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 Equity
Interests, (ii) vote in favor of or permit or otherwise allow any of its
Subsidiaries to declare or pay any dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to or otherwise
retire, any shares of any such Subsidiary’s preferred stock or other Equity
Interests entitling the holders thereof to a stated rate of return (for the
avoidance of doubt, whether such preferred stock or other Equity Interests are
perpetual or otherwise), or (iii) make any payment of principal of or any
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company that rank pari
passu in all respects with or junior in interest to this Security
(other than (a) repurchases, redemptions or other acquisitions of Equity
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 consultants, (2) a dividend reinvestment
or stockholder stock purchase plan and (3) the issuance of Equity Interests of
the Company (or securities convertible into or exercisable for such Equity
Interests) as consideration in an acquisition transaction entered into prior to
such Event of Default, (b) as a result of an exchange or conversion of any
class or series of the Company’s Equity Interests (or any Equity Interests of a
Subsidiary of the Company) for any class or series of the Company’s Equity
Interests or of any class or series of the Company’s indebtedness for any class
or series of the Company’s Equity Interests, (c) the purchase of fractional
interests in shares of the Company’s Equity Interests pursuant to the



 17
 






 



conversion or exchange
provisions of such Equity Interests or the security being converted or
exchanged, (d) any declaration of a dividend in connection with any Rights
Plan, the issuance of rights, stock or other property under any Rights Plan, or
the redemption or repurchase of rights pursuant thereto or (e) any dividend in
the form of stock, warrants, options or other rights where the dividend stock
or the stock 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 stock).


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.


[FORM OF REVERSE OF
SECURITY]


This Security is one of a duly authorized issue of
securities of the Company (the “Securities”)
issued under the Junior Subordinated Indenture, dated as of May 31, 2006 (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



 18
 






 



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 May
31, 2006 (as modified, amended or supplemented from time to time, the “Trust Agreement”), relating to the Bresler
& Reiner Statutory 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 July 30, 2011 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 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



 19














 


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 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  .



 20
 






 



 


	
  

  	
  Bresler & Reiner, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
							



 


SECTION
2.2                 Restricted
Legend.


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


“[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 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.



 21
 






 



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.”


(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



 22
 






 



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:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL

  ASSOCIATION, not in its individual capacity, but

  solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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



 23
 






 



of these methods, if
required by any securities exchange on which the Securities may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.


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 9.02% per annum through
the interest payment date on July 30, 2011 and thereafter at a variable rate of
LIBOR plus 3.50% 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 9.02% per annum through the interest payment date on July 30, 2011 and
thereafter at a variable rate of LIBOR plus 3.50% 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



 24
 






 



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


(ii)           The Company may make payment of any
Defaulted Interest 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 (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. Interest payments for the Securities shall be computed
and paid during the Fixed Rate Period based on a 360-day year of twelve 30-day
months. Upon expiration of the Fixed Rate Period, interest shall be computed and
paid 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



 25
 






 



Security will be made at
such place and to such account as may be designated by the Property Trustee.


(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. In no event will the Interest Payment Dates (and
corresponding Redemption Date and Stated Maturity) on the Securities vary by
more than sixty (60) calendar days from the original Interest Payment Dates,
Redemption Date, and Stated Maturity. No action requested of the Company
pursuant to this Section 3.1(f) shall materially increase the
obligations or materially decrease the rights of the Company.


(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 Thirty Million Nine Hundred Thirty Thousand
Dollars ($30,930,000) 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



 26
 






 



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.


(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)



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such Depositary ceases to
be a clearing agency registered under the Exchange Act and no successor is
appointed by the Company within ninety (90) days after obtaining knowledge of
such event, (iii) the Company executes and delivers to the Trustee a Company
Order stating that the Company elects to terminate the book-entry system
through the Depositary or (iv) an Event of Default shall have occurred and be
continuing. Upon the occurrence of any event specified in clause (i), (ii),
(iii) or (iv) above, the Trustee shall notify the Depositary and instruct the
Depositary to notify all owners of beneficial interests in such Global Security
of the occurrence of such event and of the availability of Securities to such
owners of beneficial interests requesting the same. The Trustee may
conclusively rely, and be protected in relying, upon the written identification
of the owners of beneficial interests furnished by the Depositary, and shall
not be liable for any delay resulting from a delay by the Depositary. Upon the
issuance of such Securities and the registration in the Securities Register of
such Securities in the names of the Holders of the beneficial interests
therein, the Trustees shall recognize such holders of beneficial interests as
Holders.


(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.



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(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 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.



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(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 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 Code, or the Investment Company Act;
provided, that if a certificate is specifically required by the express terms
of this Section 3.5 to be delivered to the Trustee or the Securities
Registrar by a Holder or transferee of a Security, the Trustee and the
Securities Registrar shall be under a duty to receive and examine the same to
determine whether or not the certificate substantially conforms on its face to
the requirements of this Indenture and



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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 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.



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SECTION 3.8         Cancellation.


All Securities surrendered for payment, redemption,
transfer or exchange shall, if surrendered to any Person other than 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.


SECTION
3.9                 Reserved


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 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.



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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 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



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(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 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; or


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


(c)           (i) default in the performance, or
breach, of any covenant or warranty of the Company in this Indenture (except
the covenant contained in Section 10.9(b)) or the Purchase Agreement and
continuance of such default or breach for a period of thirty (30) days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Outstanding Securities
a written notice specifying such default or breach and



 34
 






 



requiring it to be
remedied and stating that such notice is a “Notice
of Default” hereunder, or (ii) default in the covenant contained in Section
10.9(b) and the continuance of such default for ninety (90) 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



 35
 






 



Trustee, the Company and
the Trustee; and upon any such declaration the principal amount of and the
accrued interest (including any Additional Interest) on all the Securities
shall become immediately due and payable.


(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



 36
 






 



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


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


(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



 37
 






 



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.


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



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(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 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.



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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.


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.



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(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 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 or a national
banking association organized and doing business under the laws of the United
States or of any state thereof, authorized to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, subject to
supervision or examination by Federal or state authority and having an office
within the United States. If such entity publishes reports of condition at
least annually, pursuant to law or to the requirements of such supervising or
examining authority, then, for the purposes of this Section 6.1, the
combined capital and surplus of such entity shall be deemed to be its combined
capital and surplus as set



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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.


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, 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:



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(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); 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.


(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.



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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 (with
respect to a default specified in Section 5.1(c)(i)) or ninety (90) days
(with respect to a default specified in Section 5.1(c)(ii)), as
applicable, 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:


(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



 44
 






 



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;


(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



 45
 






 



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.


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



 46
 






 



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.


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



 47
 






 



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 (or, if the Securities have been Outstanding for less
than six (6) months, the entire period of such lesser time) may, on behalf of
such Holder and all others similarly situated, and any resigning Trustee may,
at the expense of the Company, petition any court of competent jurisdiction for
the appointment of a successor Trustee.


(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.


(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



 48
 






 



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 $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.



 49














 


(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

  	
   

  



 


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



 50
 






 



(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


(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 at 450 Park Avenue, New York, New York
10022, Attn: Thomas Bogal (or such other address as designated by Taberna
Capital Management, LLC) and (iv) any beneficial owner of the Securities
reasonably identified to the Company (which identification may be made either
by such beneficial owner or by Taberna Capital Management, LLC), a duly
completed and executed certificate substantially and substantively in the form
attached hereto as Exhibit A, including the financial statements referenced in
such Exhibit, which certificate and financial statements shall be so furnished
by the Company 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



 51
 






 



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, 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



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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.


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



 53
 






 



(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 (c) 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 (e) 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 (f) 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,


(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



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waiver of
compliance with any provision of this Indenture or of defaults hereunder and
their consequences provided for in this Indenture, or


(iii)          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 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



 55
 






 



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.


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


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


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


(c)           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.


(d)           Any money deposited with the Trustee
or any Paying Agent for the payment of the principal of and any premium or
interest (including any Additional Interest) on any Security and remaining
unclaimed for two years after such principal and any premium or interest has
become due and payable shall (unless otherwise required by mandatory provision
of applicable escheat or abandoned or unclaimed property law) be paid on
Company Request to the Company,



 56
 






 



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”). 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



 57
 






 



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 express mention is not made.


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



 58
 






 



redemptions or other
acquisitions of Equity 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 consultants, (2) a
dividend reinvestment or stockholder stock purchase plan and (3) the issuance
of Equity Interests of the Company (or securities convertible into or
exercisable for such Equity Interests) as consideration in an acquisition
transaction entered into prior to such Event of Default, (b) as a result of an
exchange or conversion of any class or series of the Company’s Equity Interests
(or any Equity Interests of a Subsidiary of the Company) for any class or
series of the Company’s Equity Interests or of any class or series of the
Company’s indebtedness for any class or series of the Company’s Equity
Interests, (c) the purchase of fractional interests in shares of the Company’s
Equity Interests pursuant to the conversion or exchange provisions of such
Equity Interests or the security being converted or exchanged, (d) any
declaration of a dividend in connection with any Rights Plan, the issuance of
rights, stock or other property under any Rights Plan, or the redemption or repurchase
of rights pursuant thereto or (e) any dividend in the form of stock, warrants,
options or other rights where the dividend stock or the stock 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 stock).


(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, 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.


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



 59














 


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.


SECTION
10.9                                            Financial
Covenants.


The Company shall fully perform and satisfy the
following financial covenants:


(a)                                  The
Company covenants and agrees to at all times maintain a Tangible Net Worth
equal to not less than $130,000,000.


(b)                                 As
at the end of either (i) the preceding fiscal quarter or (ii) the preceding
four (4) fiscal quarters (each a “Measurement
Period”), the Company shall not permit the ratio of (i) EBITDA to
(ii) Interest Charges to be less than 1.5 to 1 for such Measurement Period. It
being understood that the Company need only be in compliance at the end of
either one of the Measurement Periods set forth in subclause (i) or subclause
(ii) of the preceding sentence, but not both.


(c)                                  From
and after the date hereof, neither the Company, nor any of its consolidated
subsidiaries, shall incur, create or assume any Unsecured Debt, other than
Subordinated Debt, unless, as of the date of any such proposed incurrence, the
principal amount of such Unsecured Debt, plus the principal amount of all other
Unsecured Debt of the Company and its consolidated subsidiaries that is pari passu or senior to the Securities, in
the aggregate, would not exceed sixty percent (60%) of the common equity of the
Company, determined in accordance with GAAP, 
as of the date of such proposed incurrence.


ARTICLE XI



REDEMPTION OF SECURITIES


SECTION
11.1                                            Optional
Redemption.


The Company may, at its option, on any Interest
Payment Date, on or after July 30, 2011, 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 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 July 30, 2011, 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 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



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“Special Redemption Price”). In addition,
prior to July 30, 2011, the Company may redeem the Securities, in whole but not
in part, at the Special Redemption Price, if (a) an Event of Default described
in Section 5.1(c)(ii) has occurred and is continuing as a result of a
violation of Section 10.9(b), (b) within three (3) Business Days
following the Event of Default described in Section 5.1(c)(ii), the
Company has given notice of its intention to redeem the Securities in
accordance with Section 11.5 (except substituting “fifth (5th)” for “thirtieth (30th)” and “tenth (10th)” for “sixtieth (60th)” in Section 11.5 (a)), and (c)
the Holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities consent, in their sole and absolute discretion, to such
redemption; provided, that if
such consent is not granted within five (5) Business Days of receipt of the
Company’s notice to redeem, such Event of Default shall be deemed to have been
waived in accordance with Section 5.13; provided,
further, that any such deemed
waiver shall constitute a waiver only for the fiscal quarter during which the
Event of Default occurred and shall not constitute a waiver of any violation of
Section 10.9(b) occurring in a subsequent fiscal quarter,


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.



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(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 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.



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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 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 (and
in the case of a notice of redemption given pursuant to the second sentence of Section11.2,
with respect to which a consent has been granted pursuant to such sentence),
the Securities or portion of Securities with respect to which such notice has
been given shall become due and payable on the date and at the place or places
stated in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment specified
in such notice, the Securities or the specified portions thereof shall be paid
and redeemed by the Company at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) to the Redemption Date.


(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



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



 64
 






 



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.


(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,



 65
 






 



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 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



 66
 






 



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 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 



 67
 






 



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 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. For the avoidance of doubt,
the Company shall not be permitted to appoint itself or any Affiliate as a
Paying Agent hereunder.


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


****



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


	
  

  	
  BRESLER & REINER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SIDNEY M. BRESLER

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Sidney M.
  Bresler

  	
   

  
	
   

  	
   

  	
  Title:

  	
   CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, not in
  its individual capacity but solely as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ SHELLY A STERLING

  	
   

  
	
   

  	
   

  	
  Name:

  	
   Shelly A.
  Sterling

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Vice
  President

  	
   

  



 



 69














 


Schedule
A


 


DETERMINATION OF LIBOR


With respect to the Trust 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 after the expiration of the
Fixed Rate Period (each such day, a “LIBOR
Determination Date”), LIBOR for any given security shall for the
following interest payment period equal the rate (expressed as a percentage per
annum) for U.S. dollar deposits in Europe, for a three (3) month period, that
appears on Dow Jones Telerate (as defined in the International Swaps and
Derivatives Association, Inc. 2000 Interest Rate and Currency Exchange
Definitions) Page 3750, or such other page as may replace such Page 3750, as of
11:00 a.m. (London time) on such LIBOR Determination Date, as reported by
Bloomberg Financial Market Commodities News or any successor service. If such
rate is superseded on Telerate Page 3750 by a corrected rate before 12:00 noon
(London time) on such LIBOR Determination Date, the corrected rate as so
substituted will be LIBOR for 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 (expressed as a percentage per annum)
of the Reference Banks (as defined below) to leading banks in the London
interbank market for U.S. dollar deposits in Europe, for a three (3) month
period, for an amount determined by the Calculation Agent (but not less than
U.S. $1,000,000) 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 (expressed as a percentage per annum) that two (2) leading banks in
the City of New York selected by the Calculation Agent are quoting on the
relevant LIBOR Determination Date for U.S. dollar deposits in Europe, for a
three (3) month period, for an amount determined by the Calculation Agent (but
not less than U.S. $1,000,000); 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 (a) on
which commercial banks are open for business (including dealings in foreign
exchange and foreign currency deposits) in London and (b) is not a Saturday,
Sunday or other day on which commercial banking institutions in New York, New
York or Wilmington, Delaware are authorized or obligated by law or executive
order to be closed.



 A-1














 


Exhibit A


Form of Officer’s
Financial Certificate


The undersigned, the [Chief Financial
Officer/Treasurer/Assistant Treasurer/ Secretary/ Assistant Secretary,
Chairman/Vice Chairman/Chief Executive Officer/President/Vice President] hereby
certifies, pursuant to Section 7.3(b) of the Junior Subordinated
Indenture, dated as of May [   ], 2006 (the “Indenture”), among Bresler & Reiner,
Inc. (the “Company”) and JPMorgan
Chase Bank, National Association, as trustee, that, as of [date], [200 ],
the Company, if applicable, and its subsidiaries had the following ratios and
balances:


As of [Quarterly/Annual Financial Date], 20  


 


	
  Senior secured indebtedness
  for borrowed money (“Debt”)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Senior unsecured
  Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subordinated Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Ratio of (x) senior
  secured and unsecured Debt to (y) total Debt

  	
   

  	
   

  	
  %

  



 


[FOR FISCAL YEAR END:
Attached hereto are the audited consolidated financial statements (including
the balance sheet, income statement and statement of cash flows, and notes
thereto, together with the report of the independent accountants thereon) of
the Company and its consolidated subsidiaries for the three years ended [date],
20   and all required Financial Statement (as defined in the Purchase
Agreement for the year ended [date], 20  .]


[FOR FISCAL QUARTER END:
Attached hereto are the unaudited consolidated and consolidating financial
statements (including the balance sheet and income statement) of the Company
and its consolidated subsidiaries and all required Financial Statement (as
defined in the Purchase Agreement) for the year ended [date], 20  
for the fiscal quarter ended [date], 20  . ]


The financial statements fairly present in all
material respects, in accordance with U.S. generally accepted accounting
principles (“GAAP”), the
financial position of the Company and its consolidated subsidiaries, and the
results of operations and changes in financial condition as of the date, and
for the [quarter] [annual] period ended [date], 20 , and such financial
statements have been prepared in accordance with GAAP consistently applied
throughout the period involved (except as otherwise noted therein).


There has been no
monetary default with respect to any indebtedness owed by the Company and /or
its subsidiaries (other than those defaults cured within 30 days of the
occurrence of the same)[, except as set forth below:].



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[Insert any exceptions by
listing, in detail, the nature of the condition or event causing such
noncompliance, the period during which such condition or event has existed and
the action(s) the Company has taken, is taking, or proposes to take with
respect to each such condition or event.]


I, the undersigned, the
[Chairman/Chief Executive Officer/President/Vice President/Chief Financial
Officer/Treasurer/Assistant Treasurer], hereby certify that I have reviewed the
terms of the Indenture and I have made, or have caused to be made under my
supervision, a detailed review of (i) the covenants of the Company set forth
therein, in particular, Section [    ] (the “Financial Covenants”) and (ii) the
transactions and conditions of the Company or its subsidiaries during the
accounting period ended as of [    ] (the “Accounting Period”), which Accounting
Period is covered by the financial statements attached hereto. The examinations
described in the preceding sentence did not disclose, and I have no knowledge
of, the existence of any condition or event which constitutes a Default or an
Event of Default (each as defined in the Indenture) during or at the end of the
Accounting Period or as of the date of this certificate, [except as set forth
below:],


[Insert any exceptions by
listing, in detail, the nature of the condition or event causing such
noncompliance, the period during which such condition or event has existed and
the actions(s) the Company has taken, is taking, or proposes to take with
respect to each such condition or event.]


Page     
attached hereto sets forth the financial data and computations evidencing the
Company’s compliance with the Financial Covenants, all of which data and
computations are true, complete and correct.



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


	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  
	
   

  
	
   

  	
  Bresler &
  Reiner, Inc.

  11200 Rockville Pike, Suite 502

  Rockville, MD 20852

  (301) 945-4300

  
						



 



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