Exhibit 4.14


 


AMENDED AND RESTATED DECLARATION
OF TRUST


 


among


 


CAPITAL TRUST, INC.,


 


as Sponsor


 


THE BANK OF NEW YORK,


 


as Property Trustee


 


BNYM (DELAWARE),


 


as Delaware Trustee


 


and


 


THE ADMINISTRATIVE TRUSTEES NAMED
HEREIN


 


Dated as of [     ], 2008


 


CT PUBLIC PREFERRED TRUST [  ]


 

















 


Certain Sections of this
Trust Agreement relating to Sections 310 through 318

of the Trust Indenture Act of 1939:


 


	
  Trust Indenture

  Act Section

  	
   

  	
   

  	
  Trust

  Agreement

  Section

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (§)310

  	
  (a)(1)

  	
   

  	
   

  	
   

  	
  8.7

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
   

  	
  8.7

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
   

  	
  8.9

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
   

  	
  2.7(a)(ii)

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  8.8

  
	
  (§)311

  	
  (a)

  	
   

  	
   

  	
   

  	
  8.13

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  8.13

  
	
  (§)312

  	
  (a)

  	
   

  	
   

  	
   

  	
  5.8

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  5.8

  
	
   

  	
  (c)

  	
   

  	
   

  	
   

  	
  5.8

  
	
  (§)313

  	
  (a)

  	
   

  	
   

  	
   

  	
  8.15(a)

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
   

  	
  8.15(b)

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  8.15(b)

  
	
   

  	
  (c)

  	
   

  	
   

  	
   

  	
  10.7

  
	
   

  	
  (d)

  	
   

  	
   

  	
   

  	
  8.15(c)

  
	
  (§)314

  	
  (a)

  	
   

  	
   

  	
   

  	
  8.16

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
   

  	
  8.17

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
   

  	
  8.17

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
   

  	
   

  	
  1.1, 8.17

  
	
  (§)315

  	
  (a)

  	
   

  	
   

  	
   

  	
  8.1(a), 8.3(a)

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  8.2, 10.8

  
	
   

  	
  (c)

  	
   

  	
   

  	
   

  	
  8.1(d)

  
	
   

  	
  (d)

  	
   

  	
   

  	
   

  	
  8.1, 8.3

  
	
   

  	
  (e)

  	
   

  	
   

  	
   

  	
  10.1

  
	
  (§)316

  	
  (a)(1)(A)

  	
   

  	
   

  	
   

  	
  8.1(e)(iii)

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
   

  	
  5.13(b)

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  5.13

  
	
   

  	
  (c)

  	
   

  	
   

  	
   

  	
  6.7

  
	
  (§)317

  	
  (a)(1)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
   

  	
   

  	
  5.10

  
	
  (§)318

  	
  (a)

  	
   

  	
   

  	
   

  	
  10.9

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






Note:  This reconciliation and tie sheet shall not,
for any purpose, be deemed to be a part of the Trust Agreement.


 


i

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
  DEFINED TERMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
  CONTINUATION OF THE ISSUER TRUST

  	
   

  	
   

  
	
  Section 2.1.

  	
  Name

  	
   

  	
  10

  
	
  Section 2.2.

  	
  Office of the Delaware Trustee; Principal Place of
  Business

  	
   

  	
  10

  
	
  Section 2.3.

  	
  Initial Contribution of Trust Property;
  Organizational Expenses

  	
   

  	
  11

  
	
  Section 2.4.

  	
  Issuance of the Preferred Securities

  	
   

  	
  11

  
	
  Section 2.5.

  	
  Issuance of the Common Securities; Subscription and
  Purchase of Notes

  	
   

  	
  11

  
	
  Section 2.6.

  	
  Continuation of Trust

  	
   

  	
  12

  
	
  Section 2.7.

  	
  Authorization to Enter into Certain Transactions

  	
   

  	
  12

  
	
  Section 2.8.

  	
  Assets of Trust

  	
   

  	
  16

  
	
  Section 2.9.

  	
  Title to Trust Property

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
  PAYMENT ACCOUNT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
  Payment Account

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
  DISTRIBUTIONS; REDEMPTION

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
  Distributions

  	
   

  	
  16

  
	
  Section 4.2.

  	
  Redemption

  	
   

  	
  18

  
	
  Section 4.3.

  	
  Subordination of Common Securities

  	
   

  	
  20

  
	
  Section 4.4.

  	
  Payment Procedures

  	
   

  	
  20

  
	
  Section 4.5.

  	
  Tax Returns and Reports

  	
   

  	
  21

  
	
  Section 4.6.

  	
  Payment of Taxes, Duties, Etc. of the Issuer Trust

  	
   

  	
  21

  
	
  Section 4.7.

  	
  Payments under Indenture or Pursuant to Direct
  Actions

  	
   

  	
  21

  
	
  Section 4.8.

  	
  Liability of the Holder of Common Securities

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
  TRUST SECURITIES CERTIFICATES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
  Initial Ownership

  	
   

  	
  22

  
	
  Section 5.2.

  	
  The Trust Securities Certificates

  	
   

  	
  22

  
	
  Section 5.3.

  	
  Execution, Delivery and Authentication of Trust
  Securities Certificates

  	
   

  	
  23

  
	
  Section 5.4.

  	
  Book-Entry Preferred Securities

  	
   

  	
  23

  
	
  Section 5.5.

  	
  Registration of Transfer and Exchange of Preferred
  Securities Certificates

  	
   

  	
  25

  
	
  Section 5.6.

  	
  Mutilated, Destroyed, Lost or Stolen Trust
  Securities Certificates

  	
   

  	
  26

  
	
  Section 5.7.

  	
  Persons Deemed Holders

  	
   

  	
  27

  
	
  Section 5.8.

  	
  Access to List of Holders’ Names and Addresses

  	
   

  	
  27

  



 


i

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.9.

  	
  Maintenance of Office or Agency

  	
   

  	
  27

  
	
  Section 5.10.

  	
  Appointment of Paying Agent

  	
   

  	
  28

  
	
  Section 5.11.

  	
  Ownership of Common Securities by Sponsor

  	
   

  	
  28

  
	
  Section 5.12.

  	
  Notices to Clearing Agency

  	
   

  	
  29

  
	
  Section 5.13.

  	
  Rights of Holders; Waivers of Past Defaults

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
  ACTS OF HOLDERS; MEETINGS;
  VOTING

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
  Limitations on Voting Rights

  	
   

  	
  31

  
	
  Section 6.2.

  	
  Notice of Meetings

  	
   

  	
  31

  
	
  Section 6.3.

  	
  Meetings of Holders of the Preferred Securities

  	
   

  	
  32

  
	
  Section 6.4.

  	
  Voting Rights

  	
   

  	
  32

  
	
  Section 6.5.

  	
  Proxies, etc

  	
   

  	
  32

  
	
  Section 6.6.

  	
  Holder Action by Written Consent

  	
   

  	
  33

  
	
  Section 6.7.

  	
  Record Date for Voting and Other Purposes

  	
   

  	
  33

  
	
  Section 6.8.

  	
  Acts of Holders

  	
   

  	
  33

  
	
  Section 6.9.

  	
  Inspection of Records

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
  Representations and Warranties of the Property
  Trustee and the Delaware Trustee

  	
   

  	
  34

  
	
  Section 7.2.

  	
  Representations and Warranties of Sponsor

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
  THE ISSUER TRUSTEES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
  Certain Duties and Responsibilities

  	
   

  	
  36

  
	
  Section 8.2.

  	
  Certain Notices

  	
   

  	
  38

  
	
  Section 8.3.

  	
  Certain Rights of Property Trustee

  	
   

  	
  38

  
	
  Section 8.4.

  	
  Not Responsible for Recitals or Issuance of
  Securities

  	
   

  	
  40

  
	
  Section 8.5.

  	
  May Hold Securities

  	
   

  	
  40

  
	
  Section 8.6.

  	
  Compensation; Indemnity; Fees

  	
   

  	
  41

  
	
  Section 8.7.

  	
  Corporate Property Trustee Required; Eligibility of
  Issuer Trustees

  	
   

  	
  42

  
	
  Section 8.8.

  	
  Conflicting Interests

  	
   

  	
  42

  
	
  Section 8.9.

  	
  Co-Trustees and Separate Trustee

  	
   

  	
  42

  
	
  Section 8.10.

  	
  Resignation and Removal; Appointment of Successor

  	
   

  	
  44

  
	
  Section 8.11.

  	
  Acceptance of Appointment by Successor

  	
   

  	
  45

  
	
  Section 8.12.

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
   

  	
  46

  
	
  Section 8.13.

  	
  Preferential Collection of Claims Against Sponsor or
  Issuer Trust

  	
   

  	
  46

  
	
  Section 8.14.

  	
  Property Trustee May File Proofs of Claim

  	
   

  	
  46

  
	
  Section 8.15.

  	
  Reports by Property Trustee

  	
   

  	
  47

  
	
  Section 8.16.

  	
  Reports to the Property Trustee

  	
   

  	
  47

  
	
  Section 8.17.

  	
  Evidence of Compliance with Conditions Precedent

  	
   

  	
  48

  



 


ii

















 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.18.

  	
  Number of Issuer Trustees

  	
   

  	
  48

  
	
  Section 8.19.

  	
  Delegation of Power

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
  TERMINATION, LIQUIDATION AND
  MERGER

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
  Termination

  	
   

  	
  49

  
	
  Section 9.2.

  	
  Termination Events

  	
   

  	
  49

  
	
  Section 9.3.

  	
  Termination of Obligations

  	
   

  	
  49

  
	
  Section 9.4.

  	
  Liquidation

  	
   

  	
  49

  
	
  Section 9.5.

  	
  Mergers, Consolidations, Amalgamations or
  Replacements of Issuer Trust

  	
   

  	
  51

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE X

  	
   

  	
   

  
	
   

  	
  MISCELLANEOUS PROVISIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
  Limitation of Rights of Holders

  	
   

  	
  52

  
	
  Section 10.2.

  	
  Amendment

  	
   

  	
  52

  
	
  Section 10.3.

  	
  Separability

  	
   

  	
  54

  
	
  Section 10.4.

  	
  Governing Law

  	
   

  	
  54

  
	
  Section 10.5.

  	
  Successors

  	
   

  	
  54

  
	
  Section 10.6.

  	
  Headings

  	
   

  	
  54

  
	
  Section 10.7.

  	
  Reports, Notices and Demands

  	
   

  	
  55

  
	
  Section 10.8.

  	
  Agreement Not to Petition

  	
   

  	
  55

  
	
  Section 10.9.

  	
  Trust Indenture Act; Conflict with Trust Indenture
  Act

  	
   

  	
  56

  
	
  Section 10.10.

  	
  Acceptance of Terms of Trust Agreement, Guarantee
  Agreement and Indenture

  	
   

  	
  56

  



 


iii

















 


AMENDED AND RESTATED DECLARATION OF TRUST, dated as of [     ], 2008 among CAPITAL TRUST, INC., a
Maryland corporation (including any successors or assigns, the “Sponsor”), THE BANK OF NEW YORK, as property trustee (in
such capacity, the “Property Trustee”),
BNYM (DELAWARE), as Delaware trustee (in such capacity, the “Delaware Trustee”), [      
], an individual, [       ], an
individual, and [       ], an individual,
each of whose address is c/o Capital Trust, Inc., 410 Park Avenue, 14th
Floor, New York, NY 10022 (each an “Administrative Trustee”
and collectively the “Administrative Trustees”)
(the Property Trustee, the Delaware Trustee and the Administrative Trustees
being referred to collectively as the “Issuer Trustees”),
and the several Holders, as hereinafter defined.


 


WITNESSETH


 


WHEREAS, a statutory trust under the name “CT Public Preferred Trust
[  ]” was established pursuant to the
Delaware Statutory Trust Act and the Declaration of Trust, dated as of May 28,
2008 (the “Original Trust Agreement”), and by the
execution and filing by the Delaware Trustee with the Secretary of State of the
State of Delaware of the Certificate of Trust, filed on May 28, 2008,
attached as Exhibit A;


 


WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance and sale of the Common Securities by the Issuer
Trust to the Sponsor, (ii) the issuance and sale of the Preferred
Securities by the Issuer Trust pursuant to the Underwriting Agreement and (iii) the
acquisition by the Issuer Trust from the Sponsor of all of the right, title and
interest in the Notes;


 


NOW THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each party, for the benefit of
the other parties and for the benefit of the Holders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:


 


ARTICLE I


 


DEFINED TERMS


 


Section 1.1.               Definitions.


 


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


 


(a)           The
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;


 


(b)           All
other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;


 


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


 

















 


(d)           All
accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles, and the term “generally
accepted accounting principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles that are generally
accepted in the United States at the date or time of such computation; provided that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Sponsor;


 


(e)           Unless
the context otherwise requires, any reference to an “Article”, a “Section” or
an “Exhibit” refers to an Article, a Section or an Exhibit, as the case
may be, of or to this Trust Agreement; and


 


(f)            The
words “hereby”, “herein”, “hereof” and “hereunder” and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.


 


“Act” has the meaning specified in Section 6.8.


 


“Additional Amount” means, with respect
to Trust Securities of a given Liquidation Amount and/or a given period, the
amount of Additional Interest (as defined in the Indenture) paid by the Sponsor
on a Like Amount of Notes for such period.


 


“Additional Sums” has the meaning
specified in Section 10.6 of the Indenture.


 


“Administrative Trustee” means each of
the individuals identified as an “Administrative Trustee” in the preamble to
this Trust Agreement solely in such individual’s capacity as Administrative
Trustee of the Issuer Trust and not in such individual’s individual capacity,
or such Administrative Trustee’s successor in interest in such capacity, or any
successor trustee appointed as herein provided.


 


“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 Procedures” means, with
respect to any transfer or transaction involving a Book-Entry Preferred
Security, the rules and procedures of the Clearing Agency for such
Book-Entry Preferred Security, in each case to the extent applicable to such
transaction and as in effect from time to time.


 


“Authorized Officer” of any Person means
any officer of such Person or any Person authorized by or pursuant to a
resolution of the Board of Directors of such Person.


 


2

















 


“Bankruptcy Event” means, with respect to
any Person:


 


(a)           the entry
of a decree or order by a court having jurisdiction in the premises judging
such Person a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of such
Person 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
unstayed and in effect for a period of 60 consecutive days; or


 


(b)           the
institution by such Person of proceedings to be adjudicated a bankrupt or
insolvent, or the consent by it to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it 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 any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or similar official) of such
Person 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 the taking of corporate action by such Person
in furtherance of any such action.


 


“Bankruptcy Laws” has the meaning
specified in Section 10.8.


 


“Board of Directors” means either the
board of directors of the Sponsor or any committee of that board duly
authorized to act hereunder.


 


“Book-Entry Preferred Securities Certificate”
means a Preferred Securities Certificate evidencing ownership of Book-Entry
Preferred Securities.


 


“Book-Entry Preferred Security” means a
Preferred Security, the ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.4.


 


“Business Day” means any day other than a
Saturday, Sunday, or any other day on which banking institutions and trust
companies in New York, New York, Waterbury, Connecticut, or Wilmington,
Delaware are permitted or required by any applicable law to close; provided
that, with respect to the Floating Rate Period, such day is also a London
Business Day.


 


“Certificate Depository Agreement” means
the Issuer Letter of Representations between the Issuer Trust and DTC, as the
initial Clearing Agency, dated as of the Closing Date.


 


“Clearing Agency” means an organization
registered as a “clearing agency” pursuant to Section 17A of the Exchange
Act.  DTC will be the initial Clearing
Agency.


 


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


 


3

















 


“Closing Date” means the Time of
Delivery, which date is also the date of execution and delivery of this Trust
Agreement.


 


“Commission” means the Securities and
Exchange Commission, as from time to time constituted, created under the
Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.


 


“Common Securities Certificate” means a
certificate evidencing ownership of Common Securities, substantially in the form
attached as Exhibit B.


 


“Common Securities Subscription Agreement”
means the subscription agreement executed and delivered by the Sponsor and the
Issuer Trust contemporaneously with the execution and delivery of this Trust
Agreement, pursuant to which the Sponsor will agree to buy and the Issuer Trust
will agree to sell the Common Securities.


 


“Common Security” means a common
undivided beneficial interest in assets of the Issuer Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution to the extent provided herein.


 


“Corporate Trust Office” means (i) when
used with respect to the Property Trustee, the office of the Property Trustee
at which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at The
Bank of New York, [101 Barclay Street, Floor 8 West, New York, New York 10286],
Attn: [Corporate Trust Department], and (ii) when used with respect to the
Note Trustee, the principal office of the Note Trustee located at The Bank of
New York, [101 Barclay Street, Floor 8 West, New York, New York 10286],
Attn:  Corporate Trust Department.


 


“Definitive Preferred Securities Certificates”
means either or both (as the context requires) of (i) Preferred Securities
Certificates issued as Book-Entry Preferred Securities Certificates as provided
in Section 5.2 or 5.4, and (ii) Preferred Securities Certificates
issued in certificated, fully registered form as provided in Section 5.2,
5.4 or 5.5.


 


“Delaware Statutory Trust Act” means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
§ 3801 et seq., as it may be amended from time
to time.


 


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


 


“Distribution Date” has the meaning
specified in Section 4.1(a).


 


“Distributions” means amounts payable in
respect of the Trust Securities as provided in Section 4.1.


 


“DTC” means The Depository Trust Company.


 


4

















 


“Event of Default” means any one of the
following events (whatever the reason for such event 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)           the
occurrence of a Note Event of Default; or


 


(b)           default
by the Issuer Trust in the payment of any Distribution when it becomes due and
payable, and continuation of such default for a period of 30 days; or


 


(c)           default
by the Issuer Trust in the payment of any Redemption Price of any Trust
Security when it becomes due and payable; or


 


(d)           default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trust in this Trust Agreement (other than those
specified in clause (b) or (c) above) and continuation of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Issuer Trustees and to the Sponsor by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Preferred 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; or


 


(e)           the
occurrence of a Bankruptcy Event with respect to the Property Trustee if a
successor Property Trustee has not been appointed within 90 days thereof.


 


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


 


“Federal Reserve Board” means the Board
of Governors of the Federal Reserve System, as from time to time constituted,
or if at any time after the execution of this Trust Agreement the Federal
Reserve is not existing and performing the duties now assigned to it, then the
bodies performing such duties at such time, or the Federal Reserve Bank of
Boston, or any successor Federal reserve bank having primary jurisdiction over
the Sponsor.


 


“Final Repayment Date” has the meaning
specified in the Indenture (as such date may be extended pursuant to the terms
of the Indenture).


 


“Fixed Rate Period” means the period from
and including [  ], 2008 to but excluding
June 15, 2018.


 


“Floating Rate Period” means the period
from and including [June 15, 2018] to but excluding the date on which the
Notes are repaid.


 


“Guarantee Agreement” means the Guarantee
Agreement executed and delivered by the Sponsor and The Bank of New York, as
guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Preferred Securities, as
amended from time to time.


 


5














 


“Holder” means a Person in whose name a
Trust Security or Trust Securities are registered in the Securities Register;
any such Person shall be a beneficial owner within the meaning of the Delaware
Statutory Trust Act.


 


“Indenture” means the Junior Subordinated
Indenture, dated as of [     ], 2008, as
supplemented by the First Supplemental Indenture thereto, dated as of [     ], 2008, between the Sponsor and the Note
Trustee, as trustee, as further amended or supplemented from time to time.


 


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


 


“Issuer Trust” means the Delaware
statutory trust known as “CT Public Preferred Trust [  ]” which was formed on May 28, 2008
under the Delaware Statutory Trust Act pursuant to the Original Trust Agreement
and the filing of the Certificate of Trust, and continued pursuant to this
Trust Agreement.


 


“Issuer Trustees” has the meaning
specified in the preamble to this Trust Agreement.


 


“Junior Subordinated Note Purchase Agreement”
means the note purchase agreement executed and delivered by the Sponsor and the
Issuer Trust contemporaneously with the execution and delivery of this Trust
Agreement, pursuant to which the Sponsor will agree to issue and the Issuer
Trust will agree to purchase the Notes.


 


“Lien” means any lien, pledge, charge,
encumbrance, mortgage, deed of trust, adverse ownership interest,
hypothecation, assignment, security interest or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever.


 


“Like Amount” means (a) with respect
to a redemption of any Trust Securities, Trust Securities having a Liquidation
Amount equal to the principal amount of Notes to be contemporaneously redeemed
or repaid in accordance with the Indenture, the proceeds of which will be used
to pay the Redemption Price of such Trust Securities, (b) with respect to
a distribution of Notes to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Notes having a principal amount
equal to the Liquidation Amount of the Trust Securities of the Holder to whom
such Notes are distributed, and (c) with respect to any distribution of
Additional Amounts to Holders of Trust Securities, Notes having a principal
amount equal to the Liquidation Amount of the Trust Securities in respect of
which such distribution is made.


 


“Liquidation Amount” means the stated
amount of $1,000 per Trust Security.


 


“Liquidation Date” means the date of the
dissolution of the Issuer Trust pursuant to Section 9.4.


 


“Liquidation Distribution” has the
meaning specified in Section 9.4(d).


 


“London Business Day” means any day on
which dealings in United States dollars are transacted in the London interbank
market.


 


6

















 


“Majority in Liquidation Amount of the Preferred
Securities” or “Majority in Liquidation
Amount of the Common Securities” means, except as provided by the
Trust Indenture Act, Preferred Securities or Common Securities, as the case may
be, representing more than 50% of the aggregate Liquidation Amount of all then
Outstanding Preferred Securities or then Outstanding Common Securities, as the
case may be.


 


“Note Event of Default” has the meaning
given to the term “Event of Default” in the Indenture.


 


“Note Redemption Date” means, with
respect to any Notes to be redeemed under the Indenture, the date fixed for
redemption of such Notes under the Indenture.


 


“Note Repayment Date” means a Repayment
Date as defined in the Indenture.


 


“Note Trustee” means the Person
identified as the “Trustee” in the Indenture, solely in its capacity as Trustee
pursuant to the Indenture and not in its individual capacity, or its successor
in interest in such capacity, or any successor Trustee appointed as provided in
the Indenture.


 


“Notes” means the Sponsor’s [  ]% Fixed to Floating Rate Junior Subordinated
Notes, issued pursuant to the Indenture.


 


“Officers’ Certificate” means, with
respect to any person, a certificate signed by any two Authorized Officers of
such Person.  Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:


 


(a)           a statement by each officer signing the
Officers’ Certificate that such officer has read the covenant or condition and
the definitions relating thereto;


 


(b)           a brief statement of the nature and scope
of the examination or investigation undertaken by such officer in rendering the
Officers’ Certificate;


 


(c)           a statement that such officer has made
such examination or investigation as, in such officer’s opinion, is necessary
to enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and


 


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


 


“Opinion of Counsel” means a written
opinion of counsel, who may be counsel for or an employee of the Sponsor or an
Affiliate of the Sponsor, and who shall be reasonably acceptable to the
Property Trustee.


 


“Original Trust Agreement” has the
meaning specified in the recitals to this Trust Agreement.


 


7

















 


“Outstanding”, when used with respect to
Trust Securities, means, as of any date of determination, all Trust Securities
theretofore executed, authenticated and delivered under this Trust Agreement,
except:


 


(a)           Trust Securities theretofore cancelled by
the Property Trustee or delivered to the Property Trustee for cancellation;


 


(b)           Trust Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent; provided that,
if such Trust Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Trust Agreement; and


 


(c)           Trust Securities that have been paid or
in exchange for or in lieu of which other Trust Securities have been executed
and delivered pursuant to Sections 5.4, 5.5, 5.6 and 5.11; provided, however, that in determining whether the Holders
of the requisite Liquidation Amount of the Outstanding Preferred Securities
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Preferred Securities owned by the Sponsor, any Issuer Trustee
or any Affiliate of the Sponsor or of any Issuer Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether
any Issuer Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Issuer Trustee knows to be so owned shall be so disregarded, and (b) the
foregoing shall not apply at any time when all of the outstanding Preferred
Securities are owned by the Sponsor, one or more of the Issuer Trustees and/or
any such Affiliate.  Preferred Securities
so owned that have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee’s right so to act with respect to such Preferred Securities and that
the pledgee is not the Sponsor or any Affiliate of the Sponsor.


 


“Owner” means each Person who is the
beneficial owner of Book-Entry Preferred Securities as reflected in the records
of the Clearing Agency or, if a Clearing Agency Participant is not the Owner,
then as reflected in the records of a Person maintaining an account with such
Clearing Agency (directly or indirectly, in accordance with the rules of
such Clearing Agency).


 


“Paying Agent” means any paying agent or
co-paying agent appointed pursuant to Section 5.10 and shall initially be
The Bank of New York.


 


“Payment Account” means a segregated
non-interest-bearing corporate trust account maintained by or on behalf of the
Property Trustee for the benefit of the Holders in which all amounts paid in
respect of the Notes will be held and from which the Property Trustee, through
the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1
and 4.2.


 


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


 


“Preferred Securities Certificate” means
a certificate evidencing ownership of Preferred Securities, substantially in
the form attached as Exhibit C.


 


8

















 


“Preferred Security” means a preferred
undivided beneficial interest in the assets of the Issuer Trust, having a
Liquidation Amount of $1,000 and having the rights provided therefor in this
Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution to the extent provided herein.


 


“Property Trustee” means the Person
identified as the “Property Trustee”
in the preamble to this Trust Agreement, solely in its capacity as Property
Trustee of the Trust and not in its individual capacity, or any initial or
subsequent successor in interest in such capacity appointed as herein provided.


 


“Prospectus” means the prospectus, dated
[  ], 2008, of the Sponsor and the Issuer
Trust relating to the offering of the Preferred Securities.


 


“Redemption Date” means, with respect to
any Trust Security to be redeemed, the date fixed for such redemption by or
pursuant to this Trust Agreement; provided that each Note Redemption Date and
Note Repurchase Date and the Final Repayment Date on which Notes shall be
repaid by the Sponsor in any aggregate principal amount shall be a Redemption
Date for a Like Amount of Trust Securities.


 


“Redemption Price” means, with respect to
any Trust Security, the Liquidation Amount of such Trust Security, plus
accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, paid by the Sponsor upon the concurrent
redemption or other repayment of a Like Amount of Notes.


 


“Relevant Trustee” has the meaning
specified in Section 8.10.


 


“Responsible Officer” means, with respect
to the Property Trustee, any officer of the Property Trustee assigned to its
corporate trust services department, or with respect to a particular corporate
trust matter, any officer to whom such matter is referred because of such
officer’s knowledge and familiarity with the particular subject.


 


“Scheduled Maturity Date” has the meaning
specified in the Indenture (as such date may be extended pursuant to the terms
of the Indenture).


 


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


 


“Securities Register” and “Securities Registrar” have the respective meanings specified
in Section 5.5.


 


“Sponsor” has the meaning specified in
the preamble to this Trust Agreement.


 


“Termination Event” has the meaning
specified in Section 9.2.


 


“Time of Delivery” has the meaning
specified in the Underwriting Agreement.


 


“Trust Agreement” means this Amended and
Restated Declaration of Trust, as the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof, 


 


9

















 


including (i) all exhibits, and (ii) for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.


 


“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, as in force at the date as of which this
instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.


 


“Trust Property” means (a) the
Notes, (b) any cash on deposit in, or owing to, the Payment Account, and (c) all
proceeds and rights in respect of the foregoing and any other property and
assets for the time being held or deemed to be held by the Property Trustee
pursuant to this Trust Agreement.


 


“Trust Securities Certificate” means any
one of the Common Securities Certificates or the Preferred Securities
Certificates.


 


“Trust Security” means any one of the
Common Securities or the Preferred Securities.


 


“Underwriting Agreement” means the
Underwriting Agreement, dated [  ], 2008,
among the Issuer Trust, the Sponsor and the Underwriters named therein.


 


“Underwriters” means the underwriters
named in the Underwriting Agreement.


 


ARTICLE II


 


CONTINUATION OF THE ISSUER TRUST


 


Section 2.1.               Name.


 


The trust established under the Original Trust Agreement and continued
hereby shall be known as “CT Public Preferred Trust [  ]”, as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders of
Trust Securities and the other Issuer Trustees, in which name the Issuer
Trustees may conduct the business of the Issuer Trust, make and execute contracts
and other instruments on behalf of the Issuer Trust and sue and be sued.


 


Section 2.2.               Office of the Delaware Trustee; Principal Place of Business.


 


The address of the Delaware Trustee in the State of Delaware is [White
Clay Center, Route 273, Newark, Delaware 19711], Attention: [Corporate Trust
Services Division], or such other address in the State of Delaware as the
Delaware Trustee may designate by written notice to the Holders, the Sponsor,
the Property Trustee and the Administrative Trustees.  The principal executive office of the Issuer
Trust is c/o Capital Trust, Inc. 410 Park Avenue, 14th Floor, New York, NY
10022.


 


10

















 


Section 2.3.               Initial Contribution of Trust Property; Organizational Expenses.


 


The Sponsor deposited the sum of $10 in connection with the Original
Trust Agreement, which constituted the initial Trust Property.  The Sponsor shall pay the organizational
expenses of the Issuer Trust as they arise or shall, upon request of any Issuer
Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by
such Issuer Trustee.  The Sponsor shall
make no claim upon the Trust Property for the payment of such expenses.


 


Section 2.4.               Issuance of the Preferred Securities.


 


On [     ], 2008, the Sponsor,
both on its own behalf and on behalf of the Issuer Trust pursuant to the
Original Trust Agreement, executed and delivered the Underwriting Agreement,
which action is hereby authorized, approved, ratified and confirmed in all
respects.  Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrative Trustee, on
behalf of the Issuer Trust, shall execute in accordance with Sections 5.2
and 5.3 and deliver to the Property Trustee for authentication, and the Property
Trustee shall authenticate and shall deliver to the Underwriters, a Preferred
Securities Certificate, registered in the name of the nominee of the initial
Clearing Agency as set forth in Section 5.2(b), evidencing an aggregate of
[     ] Preferred Securities having an
aggregate Liquidation Amount of $[     ],
against receipt of the aggregate purchase price of such Preferred Securities of
$[     ], by the Property Trustee.  On any one or more dates after the execution
and delivery of this Trust Agreement additional Preferred Securities
Certificates representing Preferred Securities may be issued in accordance with
Section 5.3, registered in the name of the nominee of the initial Clearing
Agency, against receipt by the Property Trustee of the purchase price that is
determined by the Sponsor.


 


Section 2.5.               Issuance of the Common Securities; Subscription and Purchase of Notes.


 


Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall
execute in accordance with Sections 5.2 and 5.3 and the Property Trustee
shall authenticate and shall deliver to the Sponsor, Common Securities
Certificates, registered in the name of the Sponsor, evidencing an aggregate of
[10 Common Securities] having an aggregate Liquidation Amount of $[10,000],
against receipt of the aggregate purchase price of such Common Securities of
$[10,000] by the Property Trustee. 
Contemporaneously therewith, an Administrative Trustee, on behalf of the
Issuer Trust, shall subscribe for and purchase from the Sponsor the Notes,
registered in the name of the Property Trustee on behalf of the Issuer Trust
and having an aggregate principal amount equal to $[  ] and, in satisfaction of the purchase price
for such Notes, the Property Trustee, on behalf of the Issuer Trust, shall
deliver to the Sponsor the sum of $[  ]
(being the sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section 2.5).  In connection with any subsequent issuance of
Preferred Securities as set forth in the last sentence of Section 2.4, an
Administrative Trustee, on behalf of the Issuer Trust, shall contemporaneously
with any such additional issuance, subscribe to and purchase from the Sponsor
Notes, registered in the name of the Issuer Trust, having an aggregate
principal amount equal to the aggregate Liquidation Amount of Preferred
Securities being issued by the Issuer Trust pursuant to the last sentence of Section 2.4
against payment of a purchase price equal to the aggregate purchase prices of
the Preferred Securities being so issued.


 


11

















 


Section 2.6.               Continuation of Trust.


 


The exclusive purposes and functions of the Issuer Trust are (a) to
issue and sell Trust Securities and use the proceeds from such sale to acquire
the Notes, and (b) to engage in those activities necessary or incidental
thereto.  The Sponsor hereby reaffirms
the appointment of the Delaware Trustee, the Property Trustee and the
Administrative Trustees as trustees of the Issuer Trust, to have all the
rights, powers and duties to the extent set forth herein, and the respective
Issuer Trustees hereby accept such appointment. 
The Property Trustee hereby declares that it will hold the Trust
Property in trust upon and subject to the conditions set forth herein for the
benefit of the Issuer Trust and the Holders. 
The Administrative Trustees shall have all rights, powers and duties set
forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Issuer Trust. 
The Delaware Trustee shall not be entitled to exercise any powers, nor
shall the Delaware Trustee have any of the duties and responsibilities, of the
Property Trustee or the Administrative Trustees set forth herein.  The Delaware Trustee shall be one of the
trustees of the Issuer Trust for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Delaware Statutory Trust Act and for
taking such actions as are required to be taken by a Delaware trustee under the
Delaware Statutory Trust Act.


 


Section 2.7.               Authorization to Enter into Certain Transactions.


 


(a)           The Issuer Trustees shall conduct the
affairs of the Issuer Trust in accordance with the terms of this Trust
Agreement.  Subject to the limitations
set forth in paragraph (b) of this Section, and in accordance with
the following provisions (i) and (ii), the Issuer Trustees shall have the
authority to enter into all transactions and agreements determined by the
Issuer Trustees to be appropriate in exercising the authority, express or
implied, otherwise granted to the Issuer Trustees, as the case may be, under
this Trust Agreement, and to perform all acts in furtherance thereof,
including, without limitation, the following:


 


(i)            As among the Issuer Trustees, each
Administrative Trustee, acting singly or collectively, shall have the power and
authority to act on behalf of the Issuer Trust with respect to the following
matters:


 


(A)          the issuance and sale of the Trust
Securities;


 


(B)           causing the Issuer Trust to perform the
transactions contemplated by and its obligations under the Underwriting
Agreement and causing the Issuer Trust to enter into, and to execute, deliver
and perform the Common Securities Subscription Agreement, the Junior
Subordinated Note Purchase Agreement and the Certificate Depository Agreement
and such other 


 


12

















 


agreements as may
be necessary or desirable in connection with the purposes and function of the
Issuer Trust;


 


(C)           assisting in the registration of the
Preferred Securities under the Securities Act and under applicable state
securities or blue sky laws and the qualification of this Trust Agreement as a
trust indenture under the Trust Indenture Act;


 


(D)          assisting in the listing of the Preferred
Securities upon such securities exchange or exchanges as shall be determined by
the Sponsor, with the registration of the Preferred Securities under the
Exchange Act and with the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing, as applicable;


 


(E)           assisting in the sending of notices
(other than notices of default) and other information regarding the Trust
Securities and the Notes to the Holders in accordance with this Trust
Agreement;


 


(F)           the consent to the appointment of a
Paying Agent, authenticating agent and Securities Registrar in accordance with
this Trust Agreement (which consent shall not be unreasonably withheld);


 


(G)           the execution of the Trust Securities on
behalf of the Issuer Trust in accordance with this Trust Agreement;


 


(H)          the execution and delivery of closing
certificates, if any, pursuant to the Underwriting Agreement and application
for a taxpayer identification number for the Issuer Trust;


 


(I)            unless otherwise required by the Delaware
Statutory Trust Act or the Trust Indenture Act, executing on behalf of the
Issuer Trust (either acting alone or together with the other Administrative
Trustee) any documents that the Administrative Trustees have the power to
execute pursuant to this Trust Agreement; and


 


(J)            the taking of any action incidental to
the foregoing as the Issuer Trustees may from time to time determine to be
necessary or advisable to give effect to the terms of this Trust Agreement.


 


(ii)           As among the Issuer Trustees, the
Property Trustee shall have the power, duty and authority to act on behalf of
the Issuer Trust with respect to the following matters:


 


(A)          the establishment of the Payment Account;


 


(B)           the receipt of the Notes;


 


13














 


(C)                                the collection of interest, principal and
any other payments made in respect of the Notes and the holding of such amounts
in the Payment Account;


 


(D)                               the distribution through the Paying Agent
of amounts distributable to the Holders in respect of the Trust Securities;


 


(E)                                 the exercise of all of the rights, powers
and privileges of a holder of the Notes;


 


(F)                                 the sending of notices of default and
other information regarding the Trust Securities and the Notes to the Holders
in accordance with this Trust Agreement;


 


(G)                                the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;


 


(H)                               to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Issuer Trust
and the preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;


 


(I)                                    performing the duties of the Property
Trustee set forth in this Trust Agreement, including the taking of all actions
on behalf of the Issuer Trust with respect to the redemption of Trust
Securities in accordance with the terms hereof; and


 


(J)                                   after an Event of Default (other than
under paragraph (b), (c), (d) or (e) of the definition of such
term if such Event of Default is by or with respect to the Property Trustee)
the taking of any action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder).


 


Except
as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).


 


(b)                                 So long as this Trust Agreement remains
in effect, the Issuer Trust (or the Issuer Trustees acting on behalf of the
Issuer Trust) shall not undertake any business, activities or transaction
except as expressly provided herein or contemplated hereby.  In particular, the Issuer Trustees (acting on
behalf of the Issuer Trust) shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set off or otherwise dispose of
any of the Trust Property or interests therein, including to Holders, except as
expressly provided herein, (iii) take any action that would cause the
Issuer Trust to be classified as other than one or more grantor trusts or
agency arrangements or to be classified as an association or partnership for
U.S. federal income tax purposes, 


 


14

















 


(iv) incur any indebtedness for borrowed money or
issue any other debt, (v) take or consent to any action that would result
in the placement of a Lien on any of the Trust Property, (vi) apply any of
the Trust Property or its proceeds other than as provided herein, (vii) acquire
any assets other than the Trust Property, (viii) possess any power or
otherwise act in such a way as to vary the Trust Property, except as expressly
provided herein, (ix) possess any power or otherwise act in such a way as
to vary the terms of the Trust Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of the
Trust Securities) or (x) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Issuer Trust other than
the Trust Securities.  The Administrative
Trustees shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Issuer Trust or the Holders in their capacity as Holders.


 


(c)                                  In connection with the issue and sale of
the Preferred Securities, the Sponsor shall have the right and responsibility
to assist the Issuer Trust with respect to, or effect on behalf of the Issuer
Trust, the following (and any actions taken by the Sponsor in furtherance of
the following prior to the date of this Trust Agreement are hereby ratified and
confirmed in all respects):


 


(i)                                     the preparation and filing by the Issuer
Trust with the Commission and the execution on behalf of the Issuer Trust of a
registration statement on the appropriate form in relation to the Preferred
Securities, including any amendments thereto and the taking of any action
necessary or desirable to sell the Preferred Securities in a transaction or a
series of transactions pursuant thereto;


 


(ii)                                  the determination of the states in which
to take appropriate action to qualify or register for sale all or part of the
Preferred Securities and the taking of any and all such acts, other than
actions that must be taken by or on behalf of the Issuer Trust, and advice to
the Issuer Trust of actions that must be taken by or on behalf of the Issuer
Trust, and the preparation for execution and filing of any documents to be
executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the
Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such States in connection with the sale of the Preferred
Securities;


 


(iii)                               the negotiation of the terms of, and the
execution and delivery of, the Underwriting Agreement providing for the sale of
the Preferred Securities; and


 


(iv)                              the taking of any other actions necessary
or desirable to carry out any of the foregoing activities.


 


(d)                                 Notwithstanding anything herein to the
contrary, the Administrative Trustees are authorized and directed to conduct
the affairs of the Issuer Trust and to operate the Issuer Trust so that the
Issuer Trust will not be deemed to be an “investment company” required to be
registered under the Investment Company Act, and will not be classified as
other than one or more grantor trusts or agency arrangements or classified as
an association or partnership for U.S. federal income tax purposes.  In this connection, the Sponsor and the
Administrative Trustees are authorized to take any action, not inconsistent
with applicable law, the Certificate of Trust or this Trust Agreement, that
they determine in their discretion to be necessary or desirable 


 


15

















 


for such purposes, as long as such action does not adversely
affect in any material respect the interests of the Holders of the Outstanding
Preferred Securities.  In no event shall
the Sponsor or the Issuer Trustees be liable to the Issuer Trust or the Holders
for any failure to comply with this Section that results from a change in
law or regulation or in the interpretation thereof.


 


Section 2.8.                                             Assets of Trust.


 


The assets of the Issuer Trust shall consist of the Trust Property.


 


Section 2.9.                                             Title to Trust Property.


 


Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered
by the Property Trustee in trust for the benefit of the Issuer Trust and the
Holders in accordance with this Trust Agreement.


 


ARTICLE III



PAYMENT ACCOUNT


 


Section 3.1.                                             Payment Account.


 


(a)                                  On or prior to the Closing Date, the
Property Trustee shall establish the Payment Account with the Paying
Agent.  The Property Trustee and its
agents shall have exclusive control and sole right of withdrawal with respect
to the Payment Account for the purpose of making deposits in and withdrawals
from the Payment Account in accordance with this Trust Agreement.  All monies and other property deposited or
held from time to time in the Payment Account shall be held by the Property
Trustee in the Payment Account for the exclusive benefit of the Holders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.


 


(b)                                 The Property Trustee shall deposit (or
cause to be deposited) in the Payment Account, promptly upon receipt, all
payments of principal of or interest on, and any other payments or proceeds
with respect to, the Notes.  Amounts held
in the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.


 


ARTICLE IV



DISTRIBUTIONS; REDEMPTION


 


Section 4.1.                                             Distributions.


 


(a)                                  The Trust Securities represent undivided
beneficial interests in the Trust Property, and Distributions (including of
Additional Amounts) will be made on the Trust Securities at the rate and on the
dates that payments of interest (including of Additional Interest, as defined
in the Indenture) are made on the Notes. 
Accordingly:


 


(i)                                     Distributions on the Trust Securities
shall be cumulative, and will accumulate whether or not there are funds of the
Issuer Trust available for the payment of 


 


16

















 


Distributions.  Distributions shall accumulate from and
including [  ], 2008 and, except in the event (and to the extent)
that the Sponsor exercises its right to defer the payment of interest on the
Notes pursuant to the Indenture, shall be payable, in respect of interest
accruing on the Notes during the Fixed Rate Period, semi-annually in arrears on
June 15 and December 15 of each year, commencing December 15,
2008 through and including June 15, 2018 and, in respect of interest
accruing on the Notes during the Floating Rate Period, shall be payable
quarterly in arrears on each March 15, June 15, September 15 and
December 15, commencing September 15, 2018 through and including the
Scheduled Maturity Date for the Notes and in respect of any Trust Securities
that remain Outstanding following the Scheduled Maturity Date, monthly in
arrears on the 15th day of each month, commencing the July 15 next
following the Scheduled Maturity Date through and including the date on which
the Notes are repaid.  If any date on
which a Distribution is otherwise payable on the Trust Securities in respect of
interest accruing on the Notes during the Fixed Rate Period is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
day that is a Business Day, without any interest or other payment in respect of
any such delay, with the same force and effect as if made on the date on which
such payment was originally payable.  If
any date on which a Distribution is otherwise payable on the Trust Securities
in respect of interest accruing on the Notes during the Floating Rate Period is
not a Business Day (other than any such date that is also a Redemption Date for
the Trust Securities), then the related Distribution Date shall be postponed to
the next succeeding Business Day, (each date on which distributions are
payable, whether during the Fixed Rate Period or Floating Rate Period, in
accordance with this Section 4.1(a), a “Distribution
Date”).


 


(ii)                                  In the event (and to the extent) that the
Sponsor exercises its right under the Indenture to defer the payment of
interest on the Notes, Distributions on the Trust Securities shall be deferred
but shall continue to accumulate. 
Distributions on the Trust Securities shall be payable on the
Liquidation Amount of the Trust Securities at the rate per annum equal to the
then applicable rate of interest on the Notes. 
The amount of Distributions payable for any period during the Fixed Rate
Period shall be computed on the basis of a 360-day year of twelve 30-day
months.  The amount of Distributions
payable for any period during the Floating Rate Period shall be computed on the
basis of a 360-day year and the actual number of days elapsed.  The amount of Distributions payable for any
period shall include any Additional Amounts in respect of such period.


 


(iii)                               Distributions on the Trust Securities
shall be made by the Paying Agent on behalf of the Property Trustee from the
Payment Account and shall be payable on each Distribution Date only to the
extent that the Issuer Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.


 


(b)                                 Distributions on the Trust Securities
with respect to a Distribution Date shall be payable to the Holders thereof as
they appear on the Securities Register for the Trust Securities at the close of
business on the relevant record date, which shall be the first day of the month
in which the relevant Distribution Date falls, whether or not a Business
Day.  Distributions payable on any Trust
Securities that are not punctually paid on an applicable Distribution Date will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distribution will
instead be payable to 


 


17

















 


the Person in whose name such Trust Securities are
registered on the special record date or other specified date for determining
Holders entitled to such defaulted Distributions.


 


Section 4.2.                                             Redemption.


 


(a)                                  On each Note Redemption Date and Note
Repayment Date and on the Final Repayment Date on which Notes shall be repaid
by the Sponsor in an aggregate principal amount, the Issuer Trust will be
required to redeem a Like Amount of Trust Securities at a redemption price per
Trust Security equal to the Redemption Price.


 


(b)                                 Notice of redemption shall be given by
the Property Trustee by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date (or, in the case of a
Note Repayment Date, not less than 10 nor more than 15 Business Days prior to
the Redemption Date) to each Holder of Trust Securities to be redeemed, at such
Holder’s address appearing in the Security Register.  All notices 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 method by which the Redemption Price shall be calculated
together with a statement that the actual Redemption Price will be calculated
no later than the third Business Day prior to the Redemption Date;


 


(iii)                               if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;


 


(iv)                              that on the Redemption Date the
Redemption Price will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to accumulate on and
after said date, except as provided in Section 4.2(d) below; and


 


(v)                                 if the Preferred Securities are not then
Book-Entry Preferred Securities, the place or places where the applicable
Preferred Securities Certificates are to be surrendered for payment of the
Redemption Price.


 


The
Issuer Trust in issuing the Trust Securities may use “CUSIP” numbers (if then
generally in use), and, if so, the Property Trustee shall indicate the “CUSIP”
numbers of the Trust Securities in notices of redemption and related materials
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Trust Securities or as contained in any notice of redemption and related
materials.


 


(c)                                  Each Trust Security redeemed on any
Redemption Date shall be redeemed at a redemption price equal to the Redemption
Price.  Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent 


 


18

















 


that the Issuer Trust has cash in an amount equal to
the Redemption Price then on hand and available in the Payment Account for the
payment of such Redemption Price.


 


(d)                                 If the Property Trustee gives a notice of
redemption in respect of any Preferred Securities, then, by 12:00 noon, New
York City time, on the Redemption Date, subject to Section 4.2(c), the
Property Trustee will, with respect to Book-Entry Preferred Securities,
irrevocably deposit with the Clearing Agency for such Book-Entry Preferred
Securities, to the extent available therefor, the applicable Redemption Price
and will give such Clearing Agency irrevocable instructions and authority to
pay the Redemption Price to the Holders of the Preferred Securities.  With respect to Preferred Securities that are
not Book-Entry Preferred Securities, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent, to the extent available
therefor, the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their Preferred
Securities Certificates.  Notwithstanding
the foregoing, Distributions payable on or prior to the Redemption Date for any
Trust Securities called for redemption shall be payable to the Holders of such
Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record dates for the related Distribution
Dates.  If notice of redemption shall
have been given and the Redemption Price deposited as required, then upon the
date of such deposit, all rights of Holders holding Trust Securities so called
for redemption will cease, except the right of such Holders to receive the
Redemption Price and any Distribution payable in respect of the Trust
Securities on or prior to the Redemption Date, but without interest, and such
Trust Securities will cease to be outstanding. 
In the event that any date on which any Redemption Price is payable is
not a Business Day, then payment of the Redemption Price payable on such date
will be made on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), with the same force
and effect as if made on such date.  In
the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Issuer Trust or by the Sponsor pursuant to the Guarantee
Agreement, Distributions on such Trust Securities will continue to accumulate,
as set forth in Section 4.1, from the Redemption Date originally
established by the Issuer Trust for such Trust Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.


 


(e)                                  Subject to Section 4.3(a), if less
than all the Outstanding Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of Trust Securities to be redeemed
shall be allocated pro rata to the
Common Securities and the Preferred Securities based upon the relative
Liquidation Amounts of such classes, except in the case of a payment default,
as set forth in Section 4.3.  The
particular Preferred Securities to be redeemed shall be selected on a pro rata basis based upon their respective Liquidation
Amounts not more than 60 days prior to the Redemption Date by the Property
Trustee from the Outstanding Preferred Securities not previously called for
redemption by any method the Property Trustee deems fair and appropriate, provided that so long as the Preferred Securities are in
book-entry-only form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Preferred Securities.  The Property Trustee shall promptly notify
the Securities Registrar in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be 


 


19

















 


redeemed.  For
all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be redeemed only in
part, to the portion of the aggregate Liquidation Amount of Preferred
Securities that has been or is to be redeemed.


 


Section 4.3.                                             Subordination of Common
Securities.


 


(a)                                  Payment of Distributions (including any
Additional Amounts) on, the Redemption Price of, and the Liquidation Distribution
in respect of the Trust Securities, as applicable, shall be made, subject to Section 4.2(e),
pro rata among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided,  however, that if on any Distribution Date, Redemption Date
or Liquidation Date any Event of Default resulting from a Note Event of Default
shall have occurred and be continuing, no payment of any Distribution
(including any Additional Amounts) on, Redemption Price of, or Liquidation
Distribution in respect of any Common Security, and no other payment on account
of the redemption, liquidation or other acquisition of Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all Outstanding Preferred Securities then called for redemption, or in
the case of payment of the Liquidation Distribution the full amount of such
Liquidation Distribution on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including any Additional Amounts) on, or the Redemption Price
of, the Preferred Securities then due and payable.


 


(b)                                 In the case of the occurrence of any Event
of Default resulting from any Note Event of Default, the Holders of the Common
Securities shall have no right to act with respect to any such Event of Default
under this Trust Agreement until the effect of all such Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated.  Until all such Events of
Default under this Trust Agreement with respect to the Preferred Securities
have been so cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the Holders of the Preferred Securities and not on
behalf of the Holders of the Common Securities, and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee to act
on their behalf.


 


Section 4.4.                                             Payment Procedures.


 


Payments of Distributions (including any Additional Amounts) in respect
of the Preferred Securities, subject to the next succeeding sentence, shall be
made by check mailed to the address of the Person entitled thereto as such
address shall appear on the Securities Register or, if the Preferred Securities
are held by a Clearing Agency, such Distributions shall be made to the Clearing
Agency in immediately available funds.  A
Holder of $1,000,000 or more in aggregate Liquidation Amount of Preferred
Securities may receive payments of cash Distributions (including any Additional
Amounts) by wire transfer of immediately available funds upon written request
to the Property Trustee not later than the 15th calendar day, whether or not a
Business Day, before the relevant Distribution Date.  Payments in respect of the Common 


 


20

















 


Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holders of the Common
Securities.


 


Section 4.5.                                             Tax Returns and Reports.


 


The Administrative Trustees shall prepare (or cause to be prepared), at
the Sponsor’s expense, and file all United States Federal, state and local tax
and information returns and reports required to be filed by or in respect of
the Issuer Trust.  In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be
prepared and filed) all Internal Revenue Service forms required to be filed in
respect of the Issuer Trust in each taxable year of the Issuer Trust, and (b) prepare
and furnish (or cause to be prepared and furnished) to each Holder all Internal
Revenue Service forms required to be provided by the Issuer Trust.  The Administrative Trustees shall provide the
Sponsor and the Property Trustee with a copy of all such returns and reports
promptly after such filing or furnishing. 
The Issuer Trustees shall comply with United States Federal withholding
and backup withholding tax laws and information reporting requirements with
respect to any payments to Holders under the Trust Securities.  Such withholding or backup withholding (if
any) shall be deducted from any payment and shall be considered as duly paid
under the terms of this Amended and Restated Trust Agreement and the Trust Securities.


 


Section 4.6.                                             Payment of Taxes, Duties, Etc.  of the Issuer Trust.


 


Upon receipt under the Notes of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Issuer Trust by the United
States or any other taxing authority, which were included in such Additional
Sums.


 


Section 4.7.                                             Payments under Indenture or
Pursuant to Direct Actions.


 


Any amount payable hereunder to any Holder of Preferred Securities (or
any Owner with respect thereto) shall be reduced by the amount of any
corresponding payment such Holder (or Owner) has directly received pursuant to Section 5.8
of the Indenture or Section 5.13 of this Trust Agreement.


 


Section 4.8.                                             Liability of the Holder of Common
Securities.


 


As permitted under the Delaware Statutory Trust Act, the Sponsor hereby
covenants to pay all debts and obligations (other than with respect to the
Preferred Securities and the Common Securities) and all costs and expenses of
the Issuer Trust, including, but not limited to, all costs and expenses
relating to the organization of the Issuer Trust (without duplication of
amounts paid pursuant to Section 2.3 hereof), the indemnities, fees and
expenses (including reasonable counsel fees and expenses) of the Issuer
Trustees (to the extent the same are provided for herein) and all costs and
expenses relating to the offering, sale and issuance of the Trust Securities
and the operation, maintenance and dissolution of the Issuer Trust (including,
without limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Property Trustee of the
rights of the holders of the Notes) and to pay 


 


21

















 


any and all taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed on the Issuer
Trust by the United States, or any other taxing authority, with respect to the
aforesaid debts, obligations, costs and expenses.  The Sponsor’s obligations under this Section 4.8
shall be for the benefit of, and shall, to the extent permitted by applicable
law, be enforceable by, any Person to whom such debts, obligations and costs
are owed (a “Creditor”) whether or not such
Creditor has received notice hereof.  To
the extent permitted by applicable law, any such Creditor may enforce the
Sponsor’s obligations under this Section 4.8 directly against the Sponsor
and the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Issuer Trust or any other Person before
proceeding against the Sponsor.  The
Sponsor agrees to execute such additional agreements as may be necessary in
order to give full effect to the provisions of this Section 4.8.


 


ARTICLE V


 


TRUST SECURITIES CERTIFICATES


 


Section 5.1.                                             Initial Ownership.


 


Upon the formation of the Issuer Trust and the contribution by the
Sponsor pursuant to Section 2.3 and until the issuance of the Trust
Securities, and at any time during which no Trust Securities are outstanding,
the Sponsor shall be the sole beneficial owner of the Issuer Trust.


 


Section 5.2.                                             The Trust Securities Certificates.


 


(a)                                  The Preferred Securities Certificates
shall be issued in minimum denominations of $1,000 Liquidation Amount and
integral multiples of $1,000 in excess thereof, and the Common Securities
Certificates shall be issued in minimum denominations of $1,000 Liquidation
Amount and integral multiples thereof. 
The Trust Securities Certificates shall be executed on behalf of the
Issuer Trust by manual or facsimile signature of at least one Administrative
Trustee.  Trust Securities Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Issuer Trust shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities
Certificates or did not hold such offices at the date of delivery of such Trust
Securities Certificates.  A transferee of
a Trust Securities Certificate shall become a Holder, and shall be entitled to
the rights and subject to the obligations of a Holder hereunder, upon due
registration of such Trust Securities Certificate in such transferee’s name
pursuant to Section 5.5.


 


(b)                                 Upon their original issuance, Preferred Securities
Certificates shall be issued in the form of one or more Book-Entry Preferred
Securities Certificates registered in the name of DTC, as Clearing Agency, or
its nominee and deposited with DTC or the Securities Registrar as custodian for
DTC for credit by DTC to the respective accounts of the Owners thereof (or such
other accounts as they may direct).


 


22

















 


(c)                                  A single Common Securities Certificate
representing the Common Securities shall be issued to the Sponsor in the form
of a definitive Common Securities Certificate.


 


Section 5.3.                                             Execution, Delivery and
Authentication of Trust Securities Certificates.


 


At the Time of Delivery, one or more of the Administrative Trustees
shall cause Trust Securities Certificates, in the aggregate Liquidation Amounts
as provided in Sections 2.4 and 2.5 with respect to Preferred Securities
and Common Securities, respectively, to be executed (either manually or by
facsimile) on behalf of the Issuer Trust upon the written order of the Sponsor,
executed by one Authorized Officer thereof, and shall cause the Preferred
Securities Certificates to be delivered to the Property Trustee and upon such
delivery the Property Trustee shall authenticate such Preferred Securities Certificates,
in each case without further corporate action by the Sponsor, in authorized
denominations.  After the Time of
Delivery, the Administrative Trustees may cause additional Preferred Securities
to be executed on behalf of the Issuer Trust and delivered to or upon the
written order of the Sponsor, such written order executed by one authorized
officer thereof, without further corporate action by the Sponsor, in authorized
denominations; provided however that no such additional Preferred Securities
shall be issued unless the Administrative Trustees shall have received an
Opinion of Counsel experienced in such matters to the effect that such issuance
will not cause the Issuer Trust to be classified as other than one or more
grantor trusts or agency arrangements or to be classified as an association or
partnership for U.S. federal income tax purposes or affect the Issuer Trust’s
exemption from status as an “investment company” under the Investment Company
Act.


 


Each Preferred Securities Certificate shall be dated the date of its
authentication.


 


No Preferred Securities Certificate shall be entitled to any benefit
under this Trust Agreement or be valid or obligatory for any purpose, unless
there appears on such Preferred Securities Certificate a certificate of authentication
substantially in the form provided for in the form attached as Exhibit C executed by the Property Trustee by the
manual signature of one of its Authorized Officers, and such certificate upon
any Preferred Securities Certificate shall be conclusive evidence, and the only
evidence, that such Preferred Securities Certificate has been duly
authenticated and delivered hereunder.


 


Section 5.4.                                             Book-Entry Preferred Securities.


 


(a)                                  Each Book-Entry Preferred Securities
Certificate issued under this Trust Agreement shall be registered in the name
of the Clearing Agency or a nominee thereof and delivered to such Clearing
Agency or a nominee thereof or custodian therefor, and each such Book-Entry
Preferred Securities Certificate shall constitute a single Preferred Securities
Certificate for all purposes of this Trust Agreement.


 


(b)                                 Notwithstanding any other provision in
this Trust Agreement, no Book-Entry Preferred Securities Certificate may be
exchanged in whole or in part for Book-Entry Preferred Securities Certificates
registered, and no transfer of a Book-Entry Preferred Securities Certificate in
whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Book-Entry Preferred Securities Certificate or a nominee
thereof 


 


23

















 


unless (A) such Clearing Agency (i) has
notified the Issuer Trust that it is unwilling or unable to continue as
Clearing Agency for such Book-Entry Preferred Securities Certificate and no
successor Clearing Agency has been appointed within 90 days of this notice or (ii) has
ceased to be a clearing agency registered under the Exchange Act at a time when
the Clearing Agency is required to be so registered to act as clearing agent
and no successor Clearing Agency has been appointed within 90 days after the
Issuer Trust has learned that the Clearing Agency has ceased to be so
registered, (B) there shall have occurred and be continuing a Note Event
of Default, or (C) the Sponsor in its sole discretion determines that such
Book-Entry Preferred Securities Certificate will be so exchangeable or
transferable.  Upon the occurrence of any
event specified in clause (A), (B) or (C) above, the Property
Trustee shall notify the Clearing Agency and instruct the Clearing Agency to
notify all Owners of Book-Entry Preferred Securities and the Administrative
Trustees of the occurrence of such event and of the availability of the
Definitive Preferred Securities Certificates to Owners of such class or
classes, as applicable, requesting the same.


 


(c)                                  If any Book-Entry Preferred Securities
Certificate is to be exchanged for other Preferred Securities Certificates or
cancelled in part, or if any other Preferred Securities Certificate is to be
exchanged in whole or in part for Book-Entry Preferred Securities represented
by a Book-Entry Preferred Securities Certificate, then either (i) such
Book-Entry Preferred Securities Certificate shall be so surrendered for
exchange or cancellation as provided in this Article V or (ii) the
aggregate Liquidation Amount represented by such Book-Entry Preferred
Securities Certificate shall be reduced or increased by an amount equal to the
Liquidation Amount represented by that portion of the Book-Entry Preferred
Securities Certificate to be so exchanged or cancelled, or equal to the
Liquidation Amount represented by such other Preferred Securities Certificates
to be so exchanged for Book-Entry Preferred Securities represented thereby, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Property Trustee, in accordance with
the Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records.  Upon surrender to the Administrative Trustees
or the Securities Registrar of the Book-Entry Preferred Securities Certificate
or Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. 
None of the Securities Registrar, the Issuer Trustees or the
Administrative Trustees shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying
on, such instructions.  Upon the issuance
of Definitive Preferred Securities Certificates, the Issuer Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Holders.  The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees, as evidenced by the execution thereof by the Administrative Trustees
or any one of them.


 


(d)                                 Every Preferred Securities Certificate
executed and delivered upon registration of transfer of, or in exchange for or
in lieu of, a Book-Entry Preferred Securities Certificate or any portion
thereof, whether pursuant to this Article V or Article IV or
otherwise, shall be executed and delivered in the form of, and shall be, a
Book-Entry Preferred Securities Certificate, unless such Preferred Securities
Certificate is registered in the name of a Person 


 


24

















 


other than the Clearing Agency for such Book-Entry
Preferred Securities Certificate or a nominee thereof.


 


(e)                                  The Clearing Agency or its nominee, as
registered owner of a Book-Entry Preferred Securities Certificate, shall be the
Holder of such Book-Entry Preferred Securities Certificate for all purposes
under this Agreement and the Book-Entry Preferred Securities Certificate, and
Owners with respect to a Book-Entry Preferred Securities Certificate shall hold
such interests pursuant to the Applicable Procedures.  The Securities Registrar and the Issuer
Trustees shall be entitled to deal with the Clearing Agency for all purposes of
this Trust Agreement relating to the Book-Entry Preferred Securities
Certificates (including the payment of the Liquidation Amount of and
Distributions on the Book-Entry Preferred Securities represented thereby and
the giving of instructions or directions by Owners of Book-Entry Preferred
Securities represented thereby) as the sole Holder of the Book-Entry Preferred
Securities represented thereby and shall have no obligations to the Owners
thereof.  None of the Issuer Trustees nor
the Securities Registrar shall have any liability in respect of any transfers
effected by the Clearing Agency.


 


The rights of the Owners of the Book-Entry Preferred Securities shall
be exercised only through the Clearing Agency and shall be limited to those
established by law, the Applicable Procedures and agreements between such
Owners and the Clearing Agency and/or the Clearing Agency Participants.  Pursuant to the Certificate Depository
Agreement, unless and until Definitive Preferred Securities Certificates are
issued pursuant to Section 5.4(b), the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments on the Preferred Securities to such Clearing Agency
Participants, and none of the Sponsor or the Issuer Trustees shall have any
responsibility or obligation with respect thereto.


 


Section 5.5.                                             Registration of Transfer and
Exchange of Preferred Securities Certificates.


 


The Property Trustee shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.9, a register or registers for the
purpose of registering Trust Securities Certificates and transfers and
exchanges of Trust Securities Certificates (the “Securities
Register”) in which the registrar and transfer agent with respect to
the Trust Securities (the “Securities Registrar”),
subject to such reasonable regulations as it may prescribe, shall provide for
the registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.11 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. 
The Person acting as the Property Trustee shall at all times also be the
Securities Registrar.


 


Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.9,
the Administrative Trustees or any one of them shall execute and deliver to the
Property Trustee, and the Property Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee
or Trustees.


 


25














 


The Securities Registrar shall not be required, (i) to issue,
register the transfer of or exchange any Preferred Security during a period
beginning at the opening of business 15 days before the day of selection for
redemption of such Preferred Securities pursuant to Article IV 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 Preferred Security so selected for
redemption in whole or in part, except, in the case of any such Preferred
Security to be redeemed in part, any portion thereof not to be redeemed.


 


Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and
the Securities Registrar duly executed by the Holder or its attorney duly
authorized in writing.  Each Preferred
Securities Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Property Trustee in
accordance with its customary practice.


 


No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.


 


A Preferred Securities Certificate that is not a Book-Entry Preferred
Securities Certificate may be transferred, in whole or in part, to a Person who
takes delivery in the form of another Preferred Securities Certificate that is
not a Book-Entry Preferred Securities Certificate as provided in this Section 5.5.


 


Section 5.6.                                             Mutilated, Destroyed, Lost or
Stolen Trust Securities Certificates.


 


If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate, and (b) there shall be delivered to the
Securities Registrar and the Administrative Trustees such security or indemnity
as may be required by them to save each of them harmless, then in the absence
of notice that such Trust Securities Certificate shall have been acquired by a
protected purchaser, the Administrative Trustees, or any one of them, on behalf
of the Issuer Trust shall execute and make available for delivery, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination.  In connection with the
issuance of any new Trust Securities Certificate under this Section 5.6,
the Administrative Trustees or the Securities Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.  Any
duplicate Trust Securities Certificate issued pursuant to this Section shall
constitute conclusive evidence of an undivided beneficial interest in the
assets of the Issuer Trust corresponding to that evidenced by the lost, stolen
or destroyed Trust Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.


 


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Section 5.7.                                             Persons Deemed Holders.


 


The Issuer Trustees and the Securities Registrar shall each treat the
Person in whose name any Trust Securities Certificate shall be registered in
the Securities Register as the owner of such Trust Securities Certificate for
the purpose of receiving Distributions and for all other purposes whatsoever,
and none of the Issuer Trustees and the Securities Registrar shall be bound by
any notice to the contrary.


 


Section 5.8.                                             Access to List of Holders’ Names
and Addresses.


 


Each of the Sponsor and any one of the Administrative Trustees will
furnish or cause to be furnished to the Property Trustee:


 


(i)                                     quarterly or semi-annually, as the case
may be, not more than 15 days after each regular record date in each year, a
list, in such form as the Property Trustee may reasonably require, of the names
and addresses of the Holders of Trust Securities as of such regular record
date, and


 


(ii)                                  at such other times as the Property
Trustee may request in writing, within 30 days after the receipt by the Sponsor
and the Administrative Trustees of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished, excluding from any such list names and addresses received by the
Property Trustee at any time that is acting as Securities Registrar.


 


The Property 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 Property Trustee as provided in this Section 5.8
and the names and addresses of Holders received by the Property Trustee at any
time that is acting as Securities Registrar. 
The Property Trustee may destroy any list furnished to it as provided in
Section 5.8 upon receipt of a new list so furnished.


 


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


 


Each Holder and each Owner shall be deemed to have agreed not to hold
the Sponsor, the Property Trustee, the Delaware Trustee, the Administrative
Trustees or the Securities Registrar accountable by reason of the disclosure of
its name and address, regardless of the source from which such information was
derived.


 


Section 5.9.                                             Maintenance of Office or Agency.


 


The Property Trustee shall designate, with the consent of the
Administrative Trustees, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Preferred Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served.  The
Administrative Trustees initially designate the Property Trustee’s Corporate
Trust Office, Attention: Corporate Trust Department, as its office and agency
for such purposes.  The Property Trustee
shall give prompt written notice to the 


 


27

















 


Sponsor, the Administrative Trustees and to the
Holders of any change in the location of the Securities Register or any such
office or agency.


 


Section 5.10.                                       Appointment of Paying Agent.


 


The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. 
Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account solely for the purpose of making the Distributions referred
to above.  The Administrative Trustees
may revoke such power and remove the Paying Agent in their sole
discretion.  The Paying Agent shall
initially be The Bank of New York.  Any
Person acting as Paying Agent shall -27- be permitted to resign as Paying Agent
upon 30 days’ written notice to the Administrative Trustees and the Property
Trustee.  If The Bank of New York shall
no longer be the Paying Agent or a successor Paying Agent shall resign or its
authority to act be revoked, the Administrative Trustees shall appoint a successor
(which shall be a bank or trust company) to act as Paying Agent.  Such successor Paying Agent or any additional
Paying Agent appointed by the Administrative Trustees shall execute and deliver
to the Issuer Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such
Holders.  The Paying Agent shall return
all unclaimed funds to the Property Trustee and upon removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the Property
Trustee.  The provisions of Sections 8.1
(other than (c), (d), (e)(i), (e)(iii) and (e)(vii) thereof), 8.3
(except (g) and (j) thereof) and 8.6 herein shall apply to The Bank
of New York also in its role as Paying Agent, for so long as The Bank of New
York shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder.  Any
reference in this Trust Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.


 


Section 5.11.                                       Ownership of Common Securities by
Sponsor.


 


At the Time of Delivery, the Sponsor shall acquire, and thereafter
shall retain, beneficial and record ownership of the Common Securities.  The Sponsor may not transfer the Common
Securities except (i) in connection with a consolidation or merger of the
Sponsor into another Person, or any conveyance, transfer or lease by the
Sponsor of its properties and assets substantially as an entirety to any
Person, pursuant to Article VIII of the Indenture, or (ii) to an
Affiliate of the Sponsor in compliance with applicable law (including the
Securities Act and applicable state securities and blue sky laws).  To the fullest extent permitted by law, any
attempted transfer of the Common Securities other than as set forth in the
immediately preceding sentence shall be void. 
The Administrative Trustees shall cause each Common Securities
Certificate issued to the Sponsor to contain a legend substantially to the
following effect:


 


“THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF
THE TRUST AGREEMENT.”


 


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Section 5.12.                                       Notices to Clearing Agency.


 


To the extent that a notice or other communication to the Holders is
required under this Trust Agreement, for so long as Preferred Securities are
represented by a Book-Entry Preferred Securities Certificate, the Issuer
Trustees shall give all such notices and communications specified herein to be
given to the Clearing Agency, and shall have no obligations to the Owners.


 


Section 5.13.                                       Rights of Holders; Waivers of
Past Defaults.


 


(a)                                  The legal title to the Trust Property is
vested exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.9, and the Holders shall not have any right or
title therein other than the undivided beneficial interest in the assets of the
Issuer Trust conferred by their Trust Securities and they shall have no right
to call for any partition or division of property, profits or rights of the
Issuer Trust except as described below. 
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement.  The Trust Securities shall have no preemptive
or similar rights and when issued and delivered to Holders against payment of
the purchase price therefor will be fully paid and nonassessable by the Issuer
Trust.  Subject to the provisions of Section 4.8,
the Holders of the Trust Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware.


 


(b)                                 For so long as any Preferred Securities
remain Outstanding, if, upon the occurrence of a Note Event of Default, the
Note Trustee fails or the holders of not less than 25% in principal amount of
the outstanding Notes fail to declare the principal of all of the Notes to be
immediately due and payable, the Property Trustee or the Holders of at least
25% in Liquidation Amount of the Preferred Securities then Outstanding shall
have the right to make such declaration by a notice in writing to the Sponsor,
the Note Trustee and the Property Trustee, in the case of notice by the Holders
of the Trust Securities, or to the Sponsor, the Note Trustee and the Holders of
the Trust Securities, in the case of notice by the Property Trustee.


 


At any time after a declaration of acceleration with respect to the
Notes has been made and before a judgment or decree for payment of the money due
has been obtained by the Note Trustee as provided in the Indenture, the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities, by
written notice to the Property Trustee, the Sponsor and the Note Trustee, may
rescind and annul such declaration and its consequences if:


 


(i)                                     the Sponsor has paid or deposited with
the Note Trustee a sum sufficient to pay


 


(A)                              all overdue installments of interest
(including any Additional Interest) on all of the Notes,


 


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


 


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(C)                                all sums paid or advanced by the Note
Trustee under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Note Trustee, its agents and counsel; and


 


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


 


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


 


Upon receipt by the Property Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, by Holders of any part of
the Preferred Securities a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice.  The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such record
date, such notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any
Holder be canceled and of no further effect. 
Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice that has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.13(b).


 


(c)                                  For so long as any Preferred Securities
remain Outstanding, to the fullest extent permitted by law and subject to the
terms of this Trust Agreement and the Indenture, upon the failure of the
Sponsor, as issuer of the Notes, to pay any amounts owing upon the Notes on the
due date thereof in accordance with the terms of the Notes and the Indenture,
any Holder of Preferred Securities shall have the right to institute a
proceeding directly against the Sponsor, pursuant to Section 5.8 of the
Indenture, for enforcement of payment to such Holder of any amounts payable in
respect of Notes having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Preferred Securities of such Holder (a “Direct Action”). 
Except as set forth in Section 5.13(b) and this Section 5.13(c),
the Holders of Preferred Securities shall have no right to exercise directly
any right or remedy available to the holders of, or in respect of, the Notes.


 


(d)                                 Except as otherwise provided in
clauses (a) and (b) of this Section 5.13, the Holders of at
least a Majority in Liquidation Amount of the Preferred Securities may, on
behalf of the Holders of all the Preferred Securities, waive any past default
or Event of Default or any past default under the Indenture (and, in each case,
the consequences of such default or Event of Default), except a default under
the Indenture in the payment of principal or interest (unless such default has
been cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the Note 


 


30

















 


Trustee) or a default under the Indenture in respect
of a covenant or provision that under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Note.  Upon such waiver, any such default or Event
of Default shall cease to exist, and any default or Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Trust
Agreement, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.


 


ARTICLE VI



ACTS OF HOLDERS; MEETINGS; VOTING


 


Section 6.1.                                             Limitations on Voting Rights.


 


(a)                                  Except as expressly provided in this
Trust Agreement and in the Indenture and as otherwise required by law, no
Holder of Preferred Securities shall have any right to vote or in any manner
otherwise control the administration, operation and management of the Issuer
Trust or the obligations of the parties hereto, nor shall anything herein set
forth, or contained in the terms of the Trust Securities Certificates, be
construed so as to constitute the Holders from time to time as partners or
members of an association.


 


(b)                                 So long as any Notes are held by the
Property Trustee on behalf of the Issuer Trust, the other Issuer Trustees shall
not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Note Trustee, or execute any trust or power
conferred on the Property Trustee with respect to the Notes, (ii) waive
any past default that may be waived under Section 5.13 of the Indenture, (iii) exercise
any right to rescind or annul a declaration that the principal of all the Notes
shall be due and payable, or (iv) consent to any amendment, modification
or termination of the Indenture or the Notes, where such consent shall be
required, without, in each case, obtaining the prior approval of the Holders of
at least a Majority in Liquidation Amount of the Preferred Securities, provided, however, that where a consent under the Indenture
would require the consent of each Holder of Notes affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each Holder of Preferred Securities. 
The Issuer Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities.  The Property Trustee shall notify all Holders
of the Preferred Securities of any notice of default received with respect to
the Notes.  In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior to taking
any of the foregoing actions, the Issuer Trustees shall, at the expense of the
Sponsor, obtain an Opinion of Counsel experienced in such matters to the effect
that such action shall not cause the Issuer Trust to be classified as other
than one or more grantor trusts or agency arrangements or to be classified as
an association or partnership for U.S. federal income tax purposes.


 


Section 6.2.                                             Notice of Meetings.


 


Notice of all meetings of the Holders of the Preferred Securities,
stating the time, place and purpose of the meeting, shall be given by the
Administrative Trustees or, at the written request of the Administrative
Trustees, by the Property Trustee pursuant to Section 10.7 to each 


 


31

















 


Holder of Preferred Securities, at such Holder’s
registered address, at least 15 days and not more than 90 days before the
meeting.  At any such meeting, any
business properly before the meeting may be so considered whether or not stated
in the notice of the meeting.  Any
adjourned meeting may be held as adjourned without further notice.


 


Section 6.3.                                             Meetings of Holders of the
Preferred Securities.


 


No annual meeting of Holders is required to be held.  The Administrative Trustees, however, shall
call a meeting of the Holders of the Preferred Securities to vote on any matter
upon the written request of the Holders of at least 25% in aggregate
Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote
on any matters as to which such Holders are entitled to vote.


 


The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, present in person or by proxy, shall constitute a quorum
at any meeting of the Holders of the Preferred Securities.


 


If a quorum is present at a meeting, an affirmative vote by the Holders
present, in person or by proxy, holding Preferred Securities representing at
least a Majority in Liquidation Amount of the Preferred Securities held by the
Holders present, either in person or by proxy, at such meeting shall constitute
the action of the Holders of the Preferred Securities, unless this Trust
Agreement requires a greater number of affirmative votes.


 


Section 6.4.                                             Voting Rights.


 


Holders shall be entitled to one vote for each $1,000 of Liquidation
Amount represented by their Outstanding Trust Securities in respect of any
matter as to which such Holders are entitled to vote.


 


Section 6.5.                                             Proxies, etc.


 


At any meeting of Holders, any Holder entitled to vote thereat may vote
by proxy, provided that no proxy shall be voted at any meeting unless it shall
have been placed on file with the Administrative Trustees, or with such other
officer or agent of the Issuer Trust as the Administrative Trustees may direct,
for verification prior to the time at which such vote shall be taken.  Pursuant to a resolution of the Property
Trustee, proxies may be solicited in the name of the Property Trustee or one or
more officers of the Property Trustee.  Only
Holders of record shall be entitled to vote. 
When Trust Securities are held jointly by several persons, any one of
them may vote at any meeting in person or by proxy in respect of such Trust
Securities, but if more than one of them shall be present at such meeting in
person or by proxy, and such joint owners or their proxies so present disagree
as to any vote to be cast, such vote shall not be received in respect of such
Trust Securities.  A proxy purporting to
be executed by or on behalf of a Holder shall be deemed valid unless challenged
at or prior to its exercise, and the burden of proving invalidity shall rest on
the challenger.  No proxy shall be valid
more than three years after its date of execution.


 


32

















 


Section 6.6.                                             Holder Action by Written Consent.


 


Any action that may be taken by Holders at a meeting may be taken
without a meeting and without prior notice if Holders holding at least a
Majority in Liquidation Amount of all Preferred Securities entitled to vote in
respect of such action (or such larger proportion thereof as shall be required
by any other provision of this Trust Agreement) shall consent to the action in
writing.


 


Section 6.7.                                             Record Date for Voting and Other
Purposes.


 


For the purposes of determining the Holders who are entitled to notice
of and to vote at any meeting or by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees or Property Trustee may from time to time
fix a date, not more than 90 days prior to the date of any meeting of Holders
or the payment of a distribution or other action, as the case may be, as a
record date for the determination of the identity of the Holders of record for
such purposes.


 


Section 6.8.                                             Acts of Holders.


 


Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Trust Agreement to be given, made
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
duly appointed in writing; and, except as otherwise expressly provided herein,
such action shall become effective when such instrument or instruments are
delivered to an Administrative Trustee. 
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 Trust Agreement and (subject to Section 8.1)
conclusive in favor of the Issuer Trustees, if made in the manner provided in
this Section.


 


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
a certificate of a 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 the execution thereof.  Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.  The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner that any Issuer Trustee receiving the
same deems sufficient.


 


The ownership of Trust Securities shall be proved by the Securities
Register.


 


Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Trust Security shall bind every future Holder
of the same Trust Security and the Holder of every Trust Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the 


 


33

















 


Issuer Trustees or the Issuer Trust in reliance
thereon, whether or not notation of such action is made upon such Trust
Security.


 


Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust 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 Liquidation Amount.


 


If any dispute shall arise among the Holders or the Issuer Trustees
with respect to the authenticity, validity or binding nature of any request,
demand, authorization, direction, consent, waiver or other Act of such Holder
or Issuer Trustee under this Article VI, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.


 


Section 6.9.                                             Inspection of Records.


 


Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Issuer Trust shall be open to inspection by Holders
during normal business hours for any purpose reasonably related to such Holder’s
interest as a Holder.


 


ARTICLE VII


 


REPRESENTATIONS AND WARRANTIES


 


Section 7.1.                                             Representations and Warranties of
the Property Trustee and the Delaware Trustee.


 


The Property Trustee and the Delaware Trustee, each severally on behalf
of and as to itself, hereby represents and warrants for the benefit of the Sponsor
and the Holders that:


 


(a)                                  the Property Trustee is a New York
banking corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization;


 


(b)                                 the Property Trustee has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Agreement;


 


(c)                                  the Delaware Trustee is a Delaware
banking corporation, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or organization;


 


(d)                                 the Delaware Trustee has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Agreement;


 


34

















 


(e)                                  this Trust Agreement has been duly
authorized, executed and delivered by the Property Trustee and the Delaware
Trustee and constitutes the valid and legally binding agreement of each of the
Property Trustee and the Delaware Trustee enforceable against each of them in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;


 


(f)                                    the execution, delivery and performance
of this Trust Agreement have been duly authorized by all necessary corporate or
other action on the part of the Property Trustee and the Delaware Trustee and
do not require any approval of stockholders of the Property Trustee or the
Delaware Trustee and such execution, delivery and performance will not (i) violate
the Articles of Association or By-laws of the Property Trustee or the Delaware
Trustee, (ii) violate any provision of, or constitute, with or without
notice or lapse of time, a default under, or result in the creation or
imposition of, any Lien on any properties included in the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee or the
Delaware Trustee is a party or by which it is bound, or (iii) violate any
law, governmental rule or regulation of the United States of America
governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee (as appropriate in context) or any order, judgment or decree
applicable to the Property Trustee or the Delaware Trustee;


 


(g)                                 neither the authorization, execution or
delivery by the Property Trustee or the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by the Property
Trustee or the Delaware Trustee (as appropriate in context) contemplated herein
requires the consent or approval of, the giving of notice to, the registration
with or the taking of any other action with respect to any governmental
authority or agency under any existing law of the United States of America
governing the banking, trust or general powers of the Property Trustee or the
Delaware Trustee, as the case may be; and


 


(h)                                 there are no proceedings pending or, to the
best of each of the Property Trustee’s and the Delaware Trustee’s knowledge,
threatened against or affecting the Property Trustee or the Delaware Trustee in
any court or before any governmental authority, agency or arbitration board or
tribunal that, individually or in the aggregate, would materially and adversely
affect the Issuer Trust or would question the right, power and authority of the
Property Trustee or the Delaware Trustee, as the case may be, to enter into or
perform its obligations as one of the Issuer Trustees under this Trust
Agreement.


 


Section 7.2.                                             Representations and Warranties of
Sponsor.


 


The Sponsor hereby represents and warrants for the benefit of the
Holders that the Trust Securities Certificates issued at the Time of Delivery
on behalf of the Issuer Trust have been duly authorized and, upon their
execution, authentication, delivery and issuance in accordance with the terms
hereof and of the Underwriting Agreement and the Common Securities Subscription
Agreement (as applicable), will have been duly and validly executed, issued and
delivered by the Issuer Trustees pursuant to the terms and provisions of, and
in accordance with the requirements of, this Trust Agreement and the Holders
will be, as of each such date, entitled to the benefits of this Trust
Agreement.


 


35














 


ARTICLE VIII


 


THE ISSUER TRUSTEES


 


Section 8.1.               Certain Duties and Responsibilities.


 


(a)           The duties and responsibilities of
the Issuer Trustees shall be as provided by this Trust Agreement and, in the
case of the Property Trustee, by the Trust Indenture Act.  Notwithstanding the foregoing, but subject to
Section 8.1(c), no provision of this Trust Agreement shall require any of the
Issuer Trustees 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 or they 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 Trust Agreement relating to the conduct or affecting
the liability of or affording protection to the Issuer Trustees shall be
subject to the provisions of this Section 8.1. 
Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee from liability for his or her own negligent action, his
or her own negligent failure to act, or his or her own willful misconduct.  To the extent that, at law or in equity, an
Issuer Trustee has duties and liabilities relating to the Issuer Trust or to
the Holders, such Issuer Trustee shall not be liable to the Issuer Trust or to
any Holder for such Issuer Trustee’s good faith reliance on the provisions of
this Trust Agreement.  The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities of
the Issuer Trustees otherwise existing at law or in equity, are agreed by the
Sponsor and the Holders to replace such other duties and liabilities of the
Issuer Trustees.


 


(b)           All payments made by the Property
Trustee or a Paying Agent in respect of the Trust Securities shall be made only
from the revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in accordance
with the terms hereof.  Each Holder, by
its acceptance of a Trust Security, agrees that it will look solely to the
revenue and proceeds from the Trust Property to the extent legally available
for distribution to it as herein provided and that the Issuer Trustees are not
personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security.  This Section 8.1(b) does not limit the
liability of the Issuer Trustees expressly set forth elsewhere in this Trust
Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.


 


(c)           If an Event of Default has occurred
and is continuing, the Property Trustee shall enforce this Trust Agreement for
the benefit of the Holders.


 


(d)           The Property Trustee, before the
occurrence of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Trust Agreement (including pursuant to Section 10.9),
and no implied covenants shall be read into this Trust Agreement against the
Property Trustee.  If an Event of Default
has occurred (that has not been cured or waived pursuant to Section 5.14),
the Property Trustee shall exercise such of the rights and powers vested in it
by this Trust Agreement, and use the same degree of care and skill in its
exercise


 


36

















 


thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.


 


(e)           No
provision of this Trust Agreement shall be construed to relieve the Property
Trustee or the Delaware Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:


 


(i)            prior
to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:


 


(A)          the
duties and obligations of the Property Trustee shall be determined solely by
the express provisions of this Trust Agreement (including pursuant to Section 10.9),
and the Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust Agreement
(including pursuant to Section 10.9); and


 


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


 


(ii)           the
Property Trustee shall not be liable for any error of judgment made in good
faith by an Authorized Officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent facts;


 


(iii)          the
Property 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 Liquidation Amount of the Preferred
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or
power conferred upon the Property Trustee under this Trust Agreement;


 


(iv)          the
Property Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Notes and the Payment Account shall be to deal
with such property in a similar manner as the Property Trustee deals with
similar property for its own account, subject to the protections and
limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;


 


(v)           the
Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree with the Sponsor; and money held by the
Property Trustee need not be segregated from other funds held by it except in
relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1
and except to the extent otherwise required by law;


 


37

















 


(vi)          the
Property Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees, the Sponsor or any other Person with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
the default or misconduct of any other Issuer Trustee, or the Sponsor or any
other Person; and


 


(vii)         subject
to Section 8.1(c), no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if the Property Trustee shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Trust Agreement or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


(f)            The Administrative Trustees shall
not be responsible for monitoring the compliance by the other Issuer Trustees
or the Sponsor with their respective duties under this Trust Agreement, nor
shall any Administrative Trustee be liable for the default or misconduct of any
other Administrative Trustee, the other Issuer Trustees or the Sponsor.


 


Section 8.2.               Certain Notices.


 


Within 30 days after the occurrence of any Event of Default actually
known to a Responsible Officer of the Property Trustee, the Property Trustee
shall transmit, in the manner and to the extent provided in Section 10.7,
notice of such Event of Default to the Holders, the Administrative Trustees and
the Sponsor, unless such Event of Default shall have been cured or waived.


 


Within five Business Days after the receipt of notice of the Sponsor’s
exercise of its right to defer the payment of interest on the Notes pursuant to
the Indenture, the Property Trustee shall transmit, in the manner and to the
extent provided in Section 10.7, notice of such exercise to the Holders,
unless such exercise shall have been revoked.


 


Section 8.3.               Certain Rights of Property Trustee.


 


Subject to the provisions of Section 8.1:


 


(a)           the Property Trustee may rely and
shall be protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
Note, note, other evidence of indebtedness 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 Trust Agreement the Property Trustee is required to decide between
alternative courses of action, (ii) in construing any of the provisions of
this Trust Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein, or (iii) the
Property Trustee is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to


 


38

















 


which the Holders of the Preferred Securities are
entitled to vote under the terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Sponsor requesting the Sponsor’s opinion as to
the course of action to be taken, and the Property Trustee shall be fully
protected in taking such action, or refraining from taking such action, as the
Property Trustee shall be instructed in writing to take, or to refrain from
taking, by the Sponsor; provided, however,
that if the Property Trustee does not receive such instructions of the Sponsor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent
practicable shall not be less than two Business Days), it may take or refrain
from taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own bad faith, negligence or
willful misconduct;


 


(c)           any direction or act of the Sponsor
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers’ Certificate;


 


(d)           any direction or act of an
Administrative Trustee contemplated by this Trust Agreement shall be
sufficiently evidenced by a certificate executed by such Administrative Trustee
and setting forth such direction or act;


 


(e)           the Property Trustee shall have no
duty to see to any recording, filing or registration of any instrument
(including any financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or re-registration thereof;


 


(f)            the Property Trustee may consult
with counsel (which counsel may be counsel to the Sponsor or any of its
Affiliates, and may include any of its employees) and the advice of such
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 and in accordance with such advice; the Property Trustee shall
have the right at any time to seek instructions concerning the administration
of this Trust Agreement from any court of competent jurisdiction;


 


(g)           the Property Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the Holders or the
Sponsor pursuant to this Trust Agreement, unless such Holders or Sponsor shall
have offered to the Property Trustee reasonable security or indemnity against
the costs, expenses and liabilities that might be incurred by it in compliance
with such request or direction; provided that nothing contained in this Section 8.3(g) shall
be taken to relieve the Property Trustee, upon the occurrence of an Event of
Default of its obligation to exercise the rights and powers vested in it by
this Trust Agreement;


 


(h)           the Property 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, consent, order, approval, bond, Note, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do so
by one or more Holders, but the Property Trustee may make such further inquiry
or investigation into such facts or matters as it may see fit;


 


39

















 


(i)            the Property Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, provided
that the Property Trustee shall be responsible for its own negligence or
willful misconduct with respect to selection of any agent or attorney appointed
by it hereunder and shall not be liable for any act or omission of such agent
or attorney selected with due care;


 


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


 


(k)           except as otherwise expressly
provided by this Trust Agreement, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the provisions of
this Trust Agreement.


 


No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on any Issuer Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which such Person shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation.  No permissive power or authority available to
any Issuer Trustee shall be construed to be a duty.


 


Whether
or not therein expressly so provided, every provision of this Trust Agreement
relating to the conduct or affecting the liability of or affording protection
to the Property Trustee shall extend to each of the Security Registrar, the
Paying Agent and the Delaware Trustee and shall be subject to the provisions of
this Article VIII.


 


Section 8.4.               Not Responsible for Recitals or Issuance of Securities.


 


The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust and the Sponsor, and the
Issuer Trustees do not assume any responsibility for their correctness.  The Issuer Trustees shall not be accountable
for the use or application by the Sponsor of the proceeds of the Notes.


 


The Property Trustee may conclusively assume that any funds held by it
hereunder are legally available unless an officer of the Property Trustee
assigned to its institutional trust services department shall have received
written notice from the Sponsor, any Holder or any other Issuer Trustee that
such funds are not legally available.


 


Section 8.5.               May Hold Securities.


 


Any Issuer Trustee or any other agent of any Issuer Trustee or the
Issuer Trust, in its individual or any other capacity, may become the owner or
pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, and
except as provided in the definition of the term


 


40

















 


“Outstanding” in Article I, may
otherwise deal with the Issuer Trust with the same rights it would have if it
were not an Issuer Trustee or such other agent.


 


Section 8.6.               Compensation; Indemnity; Fees.


 


The Sponsor agrees:


 


(a)           to pay to the Issuer Trustees from
time to time such reasonable compensation for all services rendered by them
hereunder as may be agreed by the Sponsor and the Issuer Trustees 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);


 


(b)           except as otherwise expressly
provided herein, to reimburse the Issuer Trustees upon request for all
reasonable expenses, disbursements and advances incurred or made by the Issuer
Trustees in accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of their agents
and counsel), except any such expense, disbursement or advance as may be
attributable to their own negligence, bad faith or willful misconduct; and


 


(c)           to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) each Issuer Trustee, (ii) any
Affiliate of any Issuer Trustee, any officer, director, shareholder, employee,
representative or agent of any Issuer Trustee, and (iii) any employee or
agent of the Issuer Trust (referred to herein as an “Indemnified
Person”) from and against any loss, damage, liability, action, suit,
tax, penalty, expense or claim of any kind or nature whatsoever incurred by
such Indemnified Person by reason of the creation, operation or termination of
the Issuer Trust or any act or omission performed or omitted by such
Indemnified Person on behalf of the Issuer Trust, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage,
action, suit or claim incurred by such Indemnified Person by reason of
negligence, bad faith or willful misconduct with respect to such acts or
omissions.


 


The
provisions of this Section 8.6 shall survive the termination of this Trust
Agreement and the removal or resignation of any Issuer Trustee.


 


No
Issuer Trustee may claim any Lien on any Trust Property as a result of any
amount due pursuant to this Section 8.6.


 


Notwithstanding
any provision of law or equity, the Sponsor and any Issuer Trustee may engage
in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the
business of the Issuer Trust, and the Issuer Trust and the Holders of Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Issuer Trust, shall not be deemed wrongful or improper.  Notwithstanding any provision of law or
equity, neither the Sponsor nor any Issuer Trustee shall be obligated to
present any particular investment or other opportunity to the Issuer Trust even
if such opportunity is of a character that, if presented to the Issuer Trust,
could be taken by the Issuer Trust, and the Sponsor and any Issuer Trustee
shall have the right to take for its own account (individually or as a partner
or fiduciary)


 


41

















 


or to
recommend to others any such particular investment or other opportunity.  Notwithstanding any provision of law or
equity, any Issuer Trustee may engage or be interested in any financial or
other transaction with the Sponsor or any Affiliate of the Sponsor, or may act
as depositary for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Sponsor or its Affiliates.


 


Section 8.7.               Corporate Property Trustee Required; Eligibility of Issuer Trustees.


 


(a)           There shall at all times be a
Property Trustee hereunder with respect to the Trust Securities.  The Property Trustee shall be a Person that
is a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and that has a combined capital and surplus of at least
$50,000,000.  If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section 8.7 and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published.  If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section 8.7, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VIII.  At the time of
appointment, the Property Trustee must have securities rated in one of the
three highest rating categories by a nationally recognized statistical rating
organization.


 


(b)           There shall at all times be one or
more Administrative Trustees hereunder with respect to the Trust
Securities.  Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.


 


(c)           There shall at all times be a
Delaware Trustee with respect to the Trust Securities.  The Delaware Trustee shall either be (i) a
natural person who is at least 21 years of age and a resident of the State of
Delaware, or (ii) a legal entity with its principal place of business in
the State of Delaware and that otherwise meets the requirements of applicable
Delaware law and that shall act through one or more persons authorized to bind
such entity.


 


Section 8.8.               Conflicting Interests.


 


(a)           If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.


 


(b)           The Guarantee Agreement and the
Indenture shall be deemed to be specifically described in this Trust Agreement
for the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.


 


Section 8.9.               Co-Trustees and Separate Trustee.


 


Unless and until a Note Event of Default shall have occurred and be
continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of


 


42

















 


any jurisdiction in which any part of the Trust Property may at the
time be located, the Holder of Common Securities and the Administrative
Trustees shall have the power to appoint one or more Persons either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the
capacity aforesaid, any property, title, right or power deemed necessary or
desirable, subject to the other provisions of this Section.  Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States, or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.  In case a Note Event of Default shall have
occurred and be continuing, the Property Trustee alone shall have the power to
make such appointment and, upon the written request of the Property Trustee,
the Sponsor and the Administrative Trustees shall for such purpose join with
the Property Trustee in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, such co-trustee or
separate trustee.


 


Should any written instrument from the Sponsor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Sponsor.


 


Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed subject to the
following terms, namely:


 


(a)           The Trust Securities Certificates
shall be executed by one or more Administrative Trustees, and the Trust
Securities Certificates shall be delivered by the Property Trustee, and all
rights, powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Property Trustee specified hereunder shall be
exercised solely by the Property Trustee and not by such co-trustee or separate
trustee.


 


(b)           The rights, powers, duties, and
obligations hereby conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee or by the Property Trustee and
such co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the extent
that under any law of any jurisdiction in which any particular act is to be
performed, the Property Trustee shall be incompetent or unqualified to perform
such act, in which event such rights, powers, duties and obligations shall be
exercised and performed by such co-trustee or separate trustee.


 


(c)           The Property Trustee at any time, by
an instrument in writing executed by it, with the written concurrence of the
Sponsor, may accept the resignation of or remove any co-trustee or separate trustee
appointed under this Section, and, in case a Note Event of Default has occurred
and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the
concurrence of the Sponsor.


 


43

















 


Upon
the written request of the Property Trustee, the Sponsor shall join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or
removal.  A successor to any co-trustee
or separate trustee so resigning or removed may be appointed in the manner
provided in this Section.


 


(d)           No co-trustee or separate trustee
hereunder shall be personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.


 


(e)           The Property Trustee shall not be
liable by reason of any act of a co-trustee or separate trustee.


 


(f)            Any Act of Holders delivered to the
Property Trustee shall be deemed to have been delivered to each such co-trustee
and separate trustee.


 


Section 8.10.             Resignation and Removal; Appointment of Successor.


 


No resignation or removal of any Issuer Trustee (the “Relevant Trustee”) and no appointment of a successor Issuer
Trustee pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Issuer Trustee in accordance with
the applicable requirements of Section 8.11.


 


Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the Holders and by
appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a
successor by requesting from at least three Persons meeting the eligibility
requirements its expenses and charges to serve as the Relevant Trustee on a
form provided by the Administrative Trustees, and selecting the Person who
agrees to the lowest expenses and charges. 
If the instrument of acceptance by the successor Issuer Trustee required
by Section 8.11 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of resignation, the Relevant
Trustee may petition, at the expense of the Sponsor, in the case of the
Property Trustee, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.


 


The Administrative Trustees, or any of them, may be removed at any time
by Act of the Holders of Common Securities delivered to the Relevant Trustee.


 


The Property Trustee or the Delaware Trustee, or both of them, may be
removed by Act of the Holders of at least a Majority in Liquidation Amount of
the Preferred Securities, delivered to the Relevant Trustee (in its individual
capacity and, in the case of the Property Trustee, on behalf of the Issuer
Trust) (i) for cause (including upon the occurrence of an Event of Default
described in subparagraph (c) of the definition thereof with respect
to the Relevant Trustee), or (ii) at any time if a Note Event of Default
shall have occurred and be continuing. 
Unless and until a Note Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at any time by Act of the Holders of the Common Securities.


 


If a resigning Property Trustee or Delaware Trustee shall fail to
appoint a successor, or if the Property Trustee or the Delaware Trustee shall
be removed or become incapable of acting as


 


44

















 


Issuer Trustee, or if a vacancy shall occur in the office of the
Property Trustee or the Delaware Trustee for any cause, the Holders of the
Common Securities by Act of such Holders delivered to the Relevant Trustee or,
if a Note Event of Default shall have occurred and be continuing, the Holders of
the Preferred Securities, by Act of the Holders of not less than 25% in
aggregate Liquidation Amount of the Preferred Securities then Outstanding
delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or
Issuer Trustees, and such successor Issuer Trustee shall comply with the
applicable requirements of Section 8.11. 
If no successor Relevant Trustee shall have been so appointed by the
Holders of the Common Securities or Preferred Securities, as the case may be,
and accepted appointment in the manner required by Section 8.11, any
Holder, on behalf of such Holder and all others similarly situated, or any
other Issuer Trustee, may petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.


 


The Property Trustee shall give notice of each resignation and each
removal of an Issuer Trustee and each appointment of a successor Issuer Trustee
to all Holders in the manner provided in Section 10.7 and shall give
notice to the Sponsor and to the Administrative Trustees.  Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if it
is the Property Trustee.


 


Notwithstanding the foregoing or any other provision of this Trust
Agreement, if any Delaware Trustee who is a natural person dies or becomes, in
the opinion of the Holders of the Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by the Property Trustee following the procedures regarding
expenses and charges set forth above (with the successor being a Person who
satisfies the eligibility requirement for the Delaware Trustee set forth in Section 8.7).


 


Section 8.11.             Acceptance of Appointment by Successor.


 


In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee (if requested by the Sponsor) and each successor
Relevant Trustee with respect to the Trust Securities shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Issuer
Trust, and (b) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the Issuer Trust by more than one Relevant Trustee, it being understood that
nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective
to the extent provided therein and each such successor Relevant Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Relevant Trustee, other than
the filing of an amendment to the Certificate of Trust to the extent required
under the Delaware Statutory Trust Act; but, on request of the Issuer Trust or
any successor Relevant Trustee such retiring Relevant Trustee shall duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property, all proceeds thereof and money held by such retiring Relevant Trustee
hereunder with respect to the Trust Securities and the Issuer Trust.


 


45














 


Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the preceding paragraph.


 


No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article VIII.


 


Section 8.12.             Merger, Conversion,
Consolidation or Succession to Business.


 


Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person 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 Relevant Trustee shall be a party, or any
Person, succeeding to all or substantially all the corporate trust business of
such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided that such Person shall be otherwise qualified and eligible
under this Article VIII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, other than the filing
of an amendment to the Certificate of Trust to the extent required under the
Delaware Statutory Trust Act.


 


Section 8.13.             Preferential Collection of
Claims Against Sponsor or Issuer Trust.


 


If and when the Property Trustee shall be or become a creditor of the
Sponsor or the Issuer Trust (or any other obligor upon the Preferred
Securities), the Property Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Sponsor or
the Issuer Trust (or any such other obligor).


 


Section 8.14.             Property Trustee May File
Proofs of Claim.


 


In case of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Issuer Trust or any other obligor
upon the Trust Securities or the property of the Issuer Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable and
irrespective of whether the Property Trustee shall have made any demand on the
Issuer Trust for the payment of any past due Distributions) shall be entitled
and empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:


 


(a)           to
file and prove a claim for the whole amount of any Distributions owing and
unpaid in respect of the Trust Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and


 


(b)           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 Property Trustee and, in the event the 


 


46

















 


Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee any amount due
it for the reasonable compensation, expenses, disbursements and advances of the
Property Trustee, its agents and counsel, and any other amounts due the
Property Trustee.


 


Nothing
herein contained shall be deemed to authorize the Property Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 8.15.             Reports by Property
Trustee.


 


(a)           Within 60 days after [July 15]
of each year commencing with [July 15, 2008], the Property Trustee shall
transmit to all Holders in accordance with Section 10.7, and to the
Sponsor, a brief report dated as of the immediately preceding [July 15]
with respect to:


 


(i)            its eligibility
under Section 8.7 or, in lieu thereof, if to the best of its knowledge it
has continued to be eligible under said Section, a written statement to such
effect;


 


(ii)           a statement that
the Property Trustee has complied with all of its obligations under this Trust
Agreement during the twelve-month period (or, in the case of the initial
report, the period since the Closing Date) ending with such [July 15] or,
if the Property Trustee has not complied in any material respect with such
obligations, a description of such noncompliance; and


 


(iii)          any change in the
property and funds in its possession as Property Trustee since the date of its
last report and any action taken by the Property Trustee in the performance of
its duties hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.


 


(b)           In
addition, the Property Trustee shall transmit to Holders such reports
concerning the Property Trustee and its actions under this Trust Agreement as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.


 


(c)           A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Property Trustee with each national stock exchange or interdealer
quotation system or self-regulatory organization upon which the Trust Preferred
Securities are listed or quoted, if any, and with the Commission, the Sponsor
and the relevant stock exchange or self-regulatory organization.


 


Section 8.16.             Reports to the Property
Trustee.


 


Each of the Sponsor and the Administrative Trustees shall provide to
the Property Trustee such documents, reports and information as required by Section 314
of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust 


 


47

















 


Indenture Act.  The Sponsor and
the Administrative Trustees shall annually file with the Property Trustee a
certificate specifying whether such Person is in compliance with all of the
terms and covenants applicable to such Person hereunder.


 


Section 8.17.             Evidence of Compliance
with Conditions Precedent.


 


Each of the Sponsor and the Administrative Trustees shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Trust Agreement that relate to any of the matters
set forth in Section 314(c) of the Trust Indenture Act.  Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) of the Trust
Indenture Act shall be given in the form of an Officers’ Certificate.


 


Section 8.18.             Number of Issuer Trustees.


 


(a)           The
number of Issuer Trustees shall be five, unless the Property Trustee and the
Delaware Trustee are the same Person, in which case the number of Issuer
Trustees shall be four.


 


(b)           If
an Issuer Trustee ceases to hold office for any reason, a vacancy shall
occur.  The vacancy shall be filled with
an Issuer Trustee appointed in accordance with Section 8.10.


 


(c)           The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of an Issuer Trustee shall not operate to annul, dissolve
or terminate the Issuer Trust.


 


Section 8.19.             Delegation of Power.


 


(a)           Any
Administrative Trustee may, by power of attorney consistent with applicable
law, delegate to any other natural person over the age of 21 his or her power
for the purpose of executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and


 


(b)           The
Administrative Trustees shall have power to delegate from time to time to such
of their number or to the Sponsor the doing of such things and the execution of
such instruments either in the name of the Issuer Trust or the names of the
Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.


 


48

















 


ARTICLE IX



TERMINATION, LIQUIDATION AND MERGER


 


Section 9.1.               Termination.


 


The Issuer Trust shall automatically dissolve upon the occurrence of a
Termination Event.


 


Section 9.2.               Termination
Events.


 


The first to occur of any of the following events is a
“Termination Event”, upon the occurrence
of which the Issuer Trust shall dissolve:


 


(a)           the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Sponsor, in its capacity as the Holder of the Common
Securities, unless the Common Securities shall be transferred as provided by Section 5.11,
in which case this provision shall refer instead to any such successor Holder
of the Common Securities;


 


(b)           the
written direction to the Property Trustee from all of the Holders of the Common
Securities at any time to dissolve the Issuer Trust and to distribute the Notes
to Holders in exchange for the Preferred Securities (which direction is
optional and wholly within the discretion of the Holders of the Common
Securities);


 


(c)           the
redemption of all of the Preferred Securities in accordance with the provisions
of this Trust Agreement; and


 


(d)           the entry of an order for dissolution
of the Issuer Trust by a court of competent jurisdiction.If a Termination Event
shall occur, the provisions of Section 9.4 shall apply.


 


Section 9.3.               Termination
of Obligations.


 


The respective obligations and responsibilities of the Issuer Trustees
and the Issuer Trust created and continued hereby shall terminate upon the
latest to occur of the following: (a) the distribution by the Property
Trustee to Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2; (b) the
payment of any expenses owed by the Issuer Trust; and (c) the discharge of
all administrative duties of the Administrative Trustees, including the
performance of any tax reporting obligations with respect to the Issuer Trust
or the Holders.


 


Section 9.4.               Liquidation.


 


(a)           If a Termination Event specified in
clause (a), (b) or (d) of Section 9.2 occurs, the Issuer
Trust shall be liquidated by the Issuer Trustees as expeditiously as the Issuer
Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of 


 


49

















 


the Issuer Trust as provided by applicable law, to
each Holder a Like Amount of Notes, subject to Section 9.4(d).  Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid mailed not less than 30
nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder’s address appearing in the Securities Register.  All such notices of liquidation shall:


 


(i)            state the CUSIP
Number of the Trust Securities;


 


(ii)           state the
Liquidation Date;


 


(iii)          state that from and
after the Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will be deemed to represent a Like Amount of Notes, or if Section 9.4(d) applies,
a right to receive a Liquidation Distribution; and


 


(iv)          provide such
information with respect to the procedures by which Holders may exchange Trust
Securities Certificates for Notes, or if Section 9.4(d) applies
receive a Liquidation Distribution, as the Administrative Trustees shall deem
appropriate.


 


(b)           Except
where Section 9.4(d) or Section 9.4(e) applies, in order to
effect the liquidation of the Issuer Trust and distribution of the Notes to
Holders, the Property Trustee, either itself acting as exchange agent or
through the appointment of a separate exchange agent, shall establish a record
date for such distribution (which shall be not more than 30 days prior to the
Liquidation Date) and, establish such procedures as it shall deem appropriate
to effect the distribution of Notes in exchange for the Outstanding Trust
Securities Certificates.


 


(c)           Except
where Section 9.4(d) or Section 9.4(e) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Notes will be
issued to Holders of Trust Securities Certificates, upon surrender of such
certificates to the exchange agent for exchange, (iii) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Notes bearing accrued and unpaid interest in an amount equal to the
accumulated and unpaid Distributions on such Trust Securities Certificates
until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest or principal will be made to Holders of
Trust Securities Certificates with respect to such Notes) and (iv) all
rights of Holders holding Trust Securities will cease, except the right of such
Holders to receive Notes upon surrender of Trust Securities Certificates.


 


(d)           If,
notwithstanding the other provisions of this Section 9.4, whether because
of an order for dissolution entered by a court of competent jurisdiction or
otherwise, distribution of the Notes in the manner provided herein is
determined by the Property Trustee and the Administrative Trustees not to be
possible the Trust Property shall be liquidated, and the Issuer Trust’s affairs
shall be wound up by the Property Trustee and the Administrative Trustees in
such manner as the Administrative Trustees determine.  In such event, upon the winding-up of the
Issuer Trust, except with respect to a Termination Event specified in
clause (b) of Section 9.2, Holders will be entitled to receive
out of the assets of the Issuer Trust available for distribution to Holders,
after satisfaction of liabilities to creditors of the Issuer Trust as provided 


 


50

















 


by applicable law, an amount equal to the Liquidation
Amount per Trust Security plus accumulated and unpaid Distributions thereon to
the date of payment (such amount being the “Liquidation Distribution”).  If, upon any such winding up, the Liquidation
Distribution can be paid only in part because the Issuer Trust has insufficient
assets available to pay in full the aggregate Liquidation Distribution, then,
subject to the next succeeding sentence, the amounts payable by the Issuer
Trust on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts).  The Holders of the
Common Securities will be entitled to receive Liquidation Distributions upon
any such dissolution pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that the Preferred Securities shall have a
priority over the Common Securities under the circumstances provided in Section 4.3.


 


(e)           If
a Termination Event specified in clause (c) of Section 9.2
occurs, the Trust Property (if any) shall be liquidated and the Issuer Trust’s
affairs shall be wound up by the Property Trustee and the Administrative
Trustees in such manner as the Administrative Trustees determine.


 


Section 9.5.               Mergers,
Consolidations, Amalgamations or Replacements of Issuer Trust.


 


The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other body, except pursuant
to this Section 9.5 or Section 9.4. 
At the request of the Holders of the Common Securities, with the consent
of the Administrative Trustees, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided that (i) such
successor entity either (a) expressly assumes all of the obligations of
the Issuer Trust with respect to the Preferred Securities, or (b) substitutes
for the Preferred Securities other securities having substantially the same
terms as the Preferred Securities (the “Successor Securities”)
so long as the Successor Securities have the same priority as the Preferred
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) a trustee of such successor entity
possessing the same powers and duties as the Property Trustee is appointed to
hold the Notes, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Preferred
Securities (including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization which assigns ratings to
the Preferred Securities, (iv) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (v) such
successor entity has a purpose substantially identical to that of the Issuer
Trust, (vi) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Sponsor has received an Opinion
of Counsel to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the Holders of the Preferred Securities
(including any Successor Securities) in any material respect, and (b) following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Issuer Trust nor such successor entity will be required to
register as an “investment company” under the Investment Company Act, and (vii) the
Sponsor or its permitted successor or assignee owns all of the common
securities of such successor entity and 


 


51

















 


 guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee Agreement. 
Notwithstanding the foregoing, the Issuer Trust shall not, except with
the consent of Holders of all of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Issuer Trust or the successor
entity to be classified as other than one or more grantor trusts or agency
arrangements or to be classified as an association or partnership for U.S.
federal income tax purposes.


 


ARTICLE X


 


MISCELLANEOUS PROVISIONS


 


Section 10.1.             Limitation of Rights of
Holders.


 


Except as set forth in Section 9.2, the death, termination,
dissolution, bankruptcy or incapacity of any Person having an interest,
beneficial or otherwise, in Trust Securities shall not operate to terminate
this Trust Agreement, nor dissolve, terminate or annul the Issuer Trust, nor
entitle the legal representatives, successors or heirs of such Person or any
Holder for such person, to claim an accounting, take any action or bring any
proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.


 


All parties to this Trust Agreement agree, and each Holder of any Trust
Securities by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit against any Issuer
Trustee for any action taken or omitted by it as Issuer 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, 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 paragraph shall not apply to
any suit instituted by any Issuer Trustee or to any suit instituted by any
Holder or group of Holders of more than 10% in aggregate number of the
outstanding Trust Securities.


 


Section 10.2.             Amendment.


 


(a)           This
Trust Agreement may be amended from time to time by the Administrative Trustees
and the Holders of all of the Common Securities, without the consent of any
Holder of the Trust Preferred Securities, the Property Trustee or the Delaware
Trustee (i) to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this Trust
Agreement, which shall not be inconsistent with the other provisions of this
Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement to such extent as shall be necessary to ensure that the
Issuer Trust will not be classified as other than one or more grantor trusts or
agency arrangements or be classified as an association or partnership for U.S.
federal income tax purposes at all times that any Trust Securities are
outstanding, to ensure that the Issuer Trust will not be required to register
as an “investment 


 


52

















 


company” under the Investment Company Act or to ensure
the treatment of the Preferred Securities as Tier 1 regulatory capital under
the prevailing Federal Reserve Board rules and regulations, (iii) to
require that Holders that are not U.S. persons for U.S. federal income tax
purposes irrevocably appoint a U.S. person to exercise any voting rights to
ensure that the Issuer Trust will not be treated as a foreign trust for U.S.
federal income tax purposes, or (iv) to conform the terms of this Trust
Agreement to the description of this Trust Agreement and the Trust Securities
in the Prospectus; provided, however,
that in the case of either clause (i) or (ii), such action shall not
adversely affect in any material respect the interests of any Holder, the
Property Trustee or the Delaware Trustee. 
Any such amendment shall become effective when notice is given to the
Property Trustee and the Holders of the Preferred Securities.


 


(b)           Except
as provided in Section 10.2(c), any provision of this Trust Agreement may
be amended by the Administrative Trustees and the Holders of all of the Common
Securities and with (i) the consent of Holders of at least a Majority in
Liquidation Amount of the Trust Securities, and (ii) receipt by the Issuer
Trustees of an Opinion of Counsel experienced in such matters to the effect
that such amendment or the exercise of any power granted to the Issuer Trustees
or Administrative Trustees in accordance with such amendment will not case the
Issuer Trust to be classified as other than one or more grantor trusts or
agency arrangements or to be classified as an association or partnership for
U.S. federal income tax purposes or affect the Issuer Trust’s exemption from
status as an “investment company” under the Investment Company Act.


 


(c)           In
addition to and notwithstanding any other provision in this Trust Agreement,
without the consent of each affected Holder, this Trust Agreement may not be
amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
or (ii) restrict the right of a Holder to institute suit for the
enforcement of any such payment on or after such date; and notwithstanding any
other provision herein, without the unanimous consent of the Holders, this Section 10.2(c) may
not be amended.


 


(d)           Notwithstanding
any other provisions of this Trust Agreement, no Issuer Trustee shall enter
into or consent to any amendment to this Trust Agreement that would cause the
Issuer Trust to fail or cease to qualify for the exemption from status as an “investment
company” under the Investment Company Act or that would cause the Issuer Trust
to be classified as other than one or more grantor trusts or agency
arrangements or to be classified as an association or partnership for U.S.
federal income tax purposes.


 


(e)           Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Sponsor and the Administrative Trustees, this Trust Agreement may not be
amended in a manner that imposes any additional obligation on the Sponsor or
the Administrative Trustees.


 


(f)            Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Property Trustee, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Property Trustee or that adversely
affects the Property Trustee.


 


53

















 


(g)           Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Delaware Trustee, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Delaware Trustee or that adversely
affects the Delaware Trustee.


 


(h)           Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Securities Registrar and the Paying Agent, this Trust Agreement may not be
amended in a manner that imposes any additional obligation on the Securities
Registrar or the Paying Agent or that adversely affects the Securities
Registrar or the Paying Agent.


 


(i)            In
the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Sponsor, the Property
Trustee and the Delaware Trustee a copy of such amendment.


 


(j)            Neither
the Property Trustee nor the Delaware Trustee shall be required to enter into
any amendment to this Trust Agreement that affects its own rights, duties or
immunities under this Trust Agreement. 
The Property Trustee shall be entitled to receive an Opinion of Counsel
and an Officers’ Certificate stating that any amendment to this Trust Agreement
is in compliance with this Trust Agreement.


 


Section 10.3.             Separability.


 


In case any provision in this Trust Agreement or in the Trust
Securities Certificates 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.


 


Section 10.4.             Governing Law.


 


THIS TRUST AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF EACH OF THE HOLDERS, THE ISSUER TRUST, THE SPONSOR AND THE
ISSUER TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.


 


Section 10.5.             Successors.


 


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


 


Section 10.6.             Headings.


 


The Article and Section headings are for convenience only and
shall not affect the construction of this Trust Agreement.


 


54

















 


Section 10.7.             Reports, Notices and
Demands.


 


Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder, the Sponsor or the Administrative Trustees may be given or
served in writing by deposit thereof, first-class, postage prepaid, in the
United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Preferred Securities, to such
Holder as such Holder’s name and address may appear on the Securities Register;
and (b) in the case of the Holder of the Common Securities or the Sponsor,
to Capital Trust, Inc., 410 Park Avenue, 14th Floor, New York, NY 10022,
Attention: [Secretary], or to such other address as may be specified in a
written notice by the Sponsor to the Property Trustee.  Such notice, demand or other communication to
or upon a Holder shall be deemed to have been sufficiently given or made, for
all purposes, upon hand delivery, mailing or transmission.  Such notice, demand or other communication to
or upon the Sponsor or the Holder of the Common Securities shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Sponsor or the Holder of the Common Securities, as the case may be.


 


Any notice, demand or other communication that by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Issuer Trust, the Property Trustee, the Delaware Trustee, the Administrative
Trustees or the Issuer Trust shall be given in writing addressed to such Person
as follows: (a) with respect to the Property Trustee, to The Bank of New
York, [101 Barclay Street, Floor 8 West, New York, New York, 10286],
Attention:  [Corporate Trust Department];
(b) with respect to the Delaware Trustee, to BNYM (Delaware), [White Clay
Center, Route 273, Newark, Delaware 19711], Attention: [Corporate Trust Services
Division]; (c) with respect to the Administrative Trustees, to them at the
address above for notices to the Sponsor, marked “Attention: [Administrative
Trustees of CT Public Preferred Trust [ 
]”]; and (d) with respect to the Issuer Trust, to its principal
office specified in Section 2.2, with a copy to the Property Trustee.  Such notice, demand or other communication to
or upon the Issuer Trust, the Property Trustee or the Administrative Trustees
shall be deemed to have been sufficiently given or made only upon actual
receipt of the writing by the Issuer Trust, the Property Trustee or such
Administrative Trustee.


 


Section 10.8.             Agreement Not to Petition.


 


Each of the Issuer Trustees and the Sponsor agree for the benefit of
the Holders that, until at least one year and one day after the Issuer Trust
has been terminated in accordance with Article IX, they shall not file, or
join in the filing of, a petition against the Issuer Trust under any
bankruptcy, insolvency, reorganization or other similar law (including the
United States Bankruptcy Code) (collectively, “Bankruptcy
Laws”) or otherwise join in the commencement of any proceeding
against the Issuer Trust under any Bankruptcy Law.  If the Sponsor takes action in violation of
this Section 10.8, the Property Trustee agrees, for the benefit of
Holders, that at the expense of the Sponsor, it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such petition by
the Sponsor against the Issuer Trust or the commencement of such action and
raise the defense that the Sponsor has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other defenses,
if any, as counsel for the Issuer Trustees or the Issuer Trust may assert.


 


55














 


Section 10.9.             Trust Indenture Act;
Conflict with Trust Indenture Act.


 


(a)           This
Trust Agreement is subject to the provisions of the Trust Indenture Act that
are required to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.


 


(b)           The
Property Trustee shall be the only Issuer Trustee that is a trustee for the
purposes of the Trust Indenture Act.


 


(c)           If
any provision hereof limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act through
operation of Section 318(c) thereof, such imposed duties shall
control.  If any provision of this Trust
Agreement modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply
to this Trust Agreement as so modified or excluded, as the case may be.


 


(d)           The
application of the Trust Indenture Act to this Trust Agreement shall not affect
the nature of the Trust Securities as equity securities representing undivided
beneficial interests in the assets of the Issuer Trust.


 


Section 10.10.           Acceptance of Terms of
Trust Agreement, Guarantee Agreement and Indenture.


 


THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
AGREEMENT, THE INDENTURE AND THE FIRST SUPPLEMENTAL INDENTURE, AND AGREEMENT TO
THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER
AND SUCH OTHERS.


 


* * *
*


 


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.


 


56

















 


IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Trust Agreement.


 


	
   

  	
  CAPITAL TRUST, INC.

  
	
   

  	
  as Sponsor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
  as Property Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BNYM (DELAWARE)

  
	
   

  	
  as Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [     ]

  
	
   

  	
   

  	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [     ]

  
	
   

  	
   

  	
   

  	
  as Administrative Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [     ]

  
	
   

  	
   

  	
   

  	
  as Administrative Trustee

  



 


57

















 


Exhibit A


 


CERTIFICATE
OF TRUST

OF

CT PUBLIC PREFERRED TRUST [  ]


 


[Insert
Certificate of Trust]


 


A-1

















 


Exhibit B


 


[FORM OF COMMON SECURITIES CERTIFICATE]


 


THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT


 


	
  Certificate Number

  	
   

  	
  Number of Common
  Securities 

  
	
  CI-

  	
   

  	
   

  



 


Certificate
Evidencing Common Securities

of

CT Public Preferred Trust [  ]

[     ]% Fixed to Floating Rate Common
Securities

(liquidation amount $1,000 per Common Security)


 


CT Public Preferred Trust [  ], a
statutory trust created under the laws of the State of Delaware (the “Issuer Trust”), hereby certifies that Capital Trust, Inc.
(the “Holder”) is the registered owner of [10
common securities] of the Issuer Trust representing common undivided beneficial
interests in the assets of the Issuer Trust and designated the [     ]% Fixed to Floating Rate Common
Securities (liquidation amount $1,000 per Common Security) (the “Common Securities”). 
Except in accordance with Section 5.11 of the Trust Agreement (as
defined below), the Common Securities are not transferable and, to the fullest
extent permitted by law, any attempted transfer hereof other than in accordance
therewith shall be void.  The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Issuer Trust, dated as of [    
], 2008, as the same may be amended from time to time (the “Trust Agreement”), among Capital Trust, Inc., as
Sponsor, The Bank of New York, as Property Trustee, BNYM (Delaware), as
Delaware Trustee, the Administrative Trustees named therein, and the holders,
from time to time, of undivided beneficial interests in the assets of the
Issuer Trust including the designation of the terms of the Common Securities as
set forth therein.  The Issuer Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Issuer Trust at its principal place of business or registered
office.


 


UPON RECEIPT OF THIS CERTIFICATE, THE HOLDER IS BOUND BY THE TRUST
AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREUNDER.


 


Terms used but not defined herein have the meanings set forth in the
Trust Agreement.


 


B-1

















 


IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate on behalf of the Issuer Trust this [     ] day of [     ], 2008.


 


	
   

  	
  CT Public Preferred Trust [  ] 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  	
  Administrative Trustee

  
				



 


B-2

















 


Exhibit C


 


[FORM OF PREFERRED SECURITIES CERTIFICATE]


 


THIS PREFERRED SECURITIES CERTIFICATE IS A BOOK-ENTRY PREFERRED
SECURITIES CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A CLEARING AGENCY OR A NOMINEE OF
A CLEARING AGENCY.  THIS PREFERRED
SECURITIES CERTIFICATE IS EXCHANGEABLE FOR PREFERRED SECURITIES CERTIFICATES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE
CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY
OR ANOTHER NOMINEE OF THE CLEARING AGENCY, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE TRUST AGREEMENT.


 


UNLESS THIS PREFERRED SECURITY CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (“DTC”), TO CT PUBLIC PREFERRED
TRUST [  ] OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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 A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.


 


NO PREFERRED SECURITIES CERTIFICATE OR ANY INTEREST THEREIN MAY BE
TRANSFERRED EXCEPT TO A TRANSFEREE THAT IS DEEMED TO REPRESENT AND WARRANT
EITHER THAT (A) IT IS NOT (AND FOR SO LONG AS IT HOLDS SUCH PREFERRED
SECURITIES CERTIFICATE OR ANY INTEREST THEREIN WILL NOT BE) AND IT IS NOT
ACTING ON BEHALF OF (AND FOR SO LONG AS IT HOLDS SUCH PREFERRED SECURITIES
CERTIFICATE OR ANY INTEREST THEREIN WILL NOT BE ACTING ON BEHALF OF) AN
EMPLOYEE BENEFIT PLAN SUBJECT TO TITLE I, PART 4 OF THE U.S. EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
A PLAN OR ACCOUNT TO WHICH SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE
OF 1986, AS AMENDED (THE “CODE”) APPLIES,
AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT
IN SUCH ENTITY OR A FOREIGN, CHURCH OR GOVERNMENTAL PLAN WHICH IS SUBJECT TO
ANY APPLICABLE LAW THAT IS SUBSTANTIALLY SIMILAR TO SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE (“SIMILAR LAW”),
OR (B) ITS ACQUISITION, HOLDING AND DISPOSITION OF SUCH PREFERRED
SECURITIES CERTIFICATE OR ANY INTEREST THEREIN WILL NOT CONSTITUTE OR RESULT IN
A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975
OF THE CODE (OR, IN THE CASE 


 


C-1

















 


OF A FOREIGN, CHURCH OR GOVERNMENTAL PLAN, A VIOLATION OF SIMILAR LAW).


 


C-2

















 


Certificate
Number: R-1                                                                                                Number
of Preferred Securities: [     ]

CUSIP NO.: [     ]


 


Certificate Evidencing Trust Preferred Securities

of

CT Public Preferred Trust [  ]

[     ]% Fixed to Floating Rate Trust
Preferred Securities

(liquidation amount $1,000 per Trust Preferred Security)


 


CT Public Preferred Trust [  ], a
statutory trust created under the laws of the State of Delaware (the “Issuer Trust”), hereby certifies that Cede & Co.
(the “Holder”) is the registered owner of
[  ] Preferred Securities of the Issuer
Trust representing an undivided preferred beneficial interest in the assets of
the Issuer Trust and designated the CT Public Preferred Trust [  ] [  ]%
Fixed to Floating Rate Trust Preferred Securities (liquidation amount $1,000
per Trust Preferred Security) (the “Preferred Securities”).  The Preferred Securities are transferable on
the books and records of the Issuer Trust, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form
for transfer as provided in Section 5.5 of the Trust Agreement (as defined
below).  The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of, the Amended and Restated Trust Agreement of the
Issuer Trust, dated as of [  ], 2008 as
the same may be amended from time to time (the “Trust
Agreement”), among Capital Trust, Inc., as Sponsor, The Bank of
New York, as Property Trustee, BNYM (Delaware), as Delaware Trustee, the Administrative
Trustees named therein, and the holders, from time to time of undivided
beneficial interests in the assets of the Issuer Trust including the
designation of the terms of the Preferred Securities as set forth therein.  The Holder is entitled to the benefits of the
Guarantee Agreement entered into by Capital Trust, Inc., a Maryland
corporation, and The Bank of New York, as guarantee trustee, dated as of [  ], 2008, as the same may be amended from time
to time (the “Guarantee Agreement”), to the extent
provided therein.  The Issuer Trust will
furnish a copy of the Trust Agreement and the Guarantee Agreement to the Holder
without charge upon written request to the Issuer Trust at its principal place
of business or registered office. 
Capitalized terms used herein shall, unless otherwise specified, have
the respective meanings ascribed thereto in the Trust Agreement.


 


UPON RECEIPT OF THIS CERTIFICATE, THE HOLDER IS BOUND BY THE TRUST
AGREEMENT AND IS ENTITLED TO THE BENEFITS THEREUNDER.


 


C-3

















 


IN WITNESS WHEREOF, one of the Administrative Trustees of the Issuer
Trust has executed this certificate on behalf of the Issuer Trust this [  ] day of [ 
], 2008.


 


	
   

  	
  CT Public Preferred Trust [ ]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name

  
	
   

  	
   

  	
  Title: Administrative Trustee

  



 


 


Property
Trustee’s Certificate of Authentication


 


This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.


 


	
   

  	
  The Bank of New York, as Property Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title: Authorized Officer

  



 


C-4

















 


ASSIGNMENT


 


FOR
VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security
to:


 


(Insert
assignee’s social security or tax identification number)


 


(Insert
address and zip code of assignee)


 


and irrevocably appoints


 


agent to transfer this Preferred Securities Certificate on the books of
the Issuer Trust.  The agent may
substitute another to act for him or her.

Date:                      


 


Signature:


 


(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate) The signature(s) should be guaranteed by an
eligible guarantor institution (banks, stockbrokers, savings and loan
associations and credit unions with membership in an approved signature
guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.


 


C-5