Exhibit 4.12a


 


DECLARATION
OF TRUST


OF


CT
PUBLIC PREFERRED TRUST II


 


THIS DECLARATION OF TRUST is made as of May 28, 2008 (this “Declaration
of Trust”), by and among Capital Trust, Inc., a Maryland corporation, as
sponsor (the “Sponsor”), BNYM (Delaware), a Delaware banking corporation, as
the Delaware trustee (the “Delaware Trustee”), and Geoffrey G. Jervis, as
trustee (together with the Delaware Trustee, the “Capital Financing Trustees”).  The Sponsor and the Capital Financing
Trustees hereby agree as follows:


 


1.             The trust created
hereby shall be known as CT Public Preferred Trust II (the “Trust”), in which
name the Capital Financing Trustees or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.


 


2.             The Sponsor hereby
assigns, transfers, conveys and sets over to the Trust the sum of $10.  The Capital Financing Trustees hereby
acknowledge receipt of such amount in trust from the Sponsor, which amount
constitutes the initial trust estate. 
The Capital Financing Trustees hereby declare that they will hold the
trust estate in trust for the Sponsor. 
It is the intention of the parties hereto that the Trust created hereby
constitute a statutory trust under Chapter 38 of Title 12 of the Delaware Code,
12 Del. C. § 3801, et  seq. (the “Statutory Trust Act”),
and that this document constitute the governing instrument of the Trust.  The Capital Financing Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Statutory
Trust Act.


 


3.             The Sponsor and the
Capital Financing Trustees will enter into an amended and restated Declaration
of Trust satisfactory to each such party and substantially in the form to be
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein.  Prior to the execution and
delivery of such amended and restated Declaration of Trust, the Capital
Financing Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.  Notwithstanding the foregoing, the Capital
Financing Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.


 


4.             The Sponsor, as
sponsor of the Trust, is hereby authorized, in its discretion, (i) to
prepare and file with the Securities and Exchange Commission (the “Commission”)
and to execute, in the case of the 1933 Act Registration Statement and 1934 Act
Registration Statement (as herein defined), on behalf of the Trust, (a) a
Registration Statement (the “1933 Act Registration Statement”), including all
pre-effective and post-effective amendments thereto, relating to the
registration under the Securities Act of 1933, as amended (the “1933 Act”), of
the Preferred Securities of the Trust, (b) any preliminary prospectus or
prospectus or supplement 


 

















 


thereto relating to the Preferred Securities of the Trust required to
be filed pursuant to the 1933 Act, and (c) a Registration Statement on Form 8-A
or other appropriate form (the “1934 Act Registration Statement”), including
all pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) if and at such time as determined
by the Sponsor, to file with the New York Stock Exchange, Inc., the NASDAQ
Stock Market, Inc. or other exchange and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Preferred Securities of the Trust to be listed on the New York Stock Exchange, Inc.,
the NASDAQ Stock Market, Inc. or such other exchange; (iii) to file
and execute on behalf of the Trust, such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents that shall be necessary or desirable to register the
Preferred Securities of the Trust under the securities or “Blue Sky” laws of
such jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary
or desirable; (iv) to execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred Securities
of the Trust; and (v) to execute, deliver and perform on behalf of the
Trust an underwriting agreement with one or more underwriters relating to the
offering of the Preferred Securities of the Trust.


 


In the event that any filing referred to in this Section 4 is
required by the rules and regulations of the Commission, the New York
Stock Exchange, Inc., the NASDAQ Stock Market, Inc. or other exchange
or state securities or “Blue Sky” laws to be executed on behalf of the Trust by
the Capital Financing Trustees, the Capital Financing Trustees, in their
capacity as Capital Financing Trustees of the Trust, are hereby authorized to
join in any such filing and to execute on behalf of the Trust any and all of
the foregoing, it being understood that the Capital Financing Trustees, in
their capacity as trustees of the Trust, shall not be required to join in any
such filing or execute on behalf of the Trust any such document unless required
by the rules and regulations of the Commission, the New York Stock
Exchange, Inc., the NASDAQ Stock Market, Inc. or other exchange or
state securities or “Blue Sky” laws.


 


5.             This Declaration of
Trust may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.


 


6.             The number of
trustees of the Trust initially shall be two and thereafter the number of
trustees of the Trust shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease
the number of trustees of the Trust; provided, however, that to the extent
required by the Statutory Trust Act, one trustee of the Trust shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity which has its principal place of business in the State of
Delaware.  Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause any trustee of the Trust
at any time.  Any trustee of the Trust
may resign upon thirty days’ prior notice to the Sponsor.


 


7.             The Sponsor hereby
agrees to (i) reimburse the Capital Financing Trustees for all reasonable
expenses actually incurred (including reasonable fees and expenses of counsel
and 


 


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other experts), and (ii) indemnify, defend and hold harmless the
Capital Financing Trustees and any of the officers, directors, employees and agents
of the Capital Financing Trustees (the “Indemnified Persons”) from and against
any and all losses, damages, liabilities, claims, actions, suits, costs,
expenses, disbursements (including reasonable fees and expenses of counsel),
taxes and penalties of any kind and nature whatsoever actually incurred
(collectively, “Expenses”), to the extent that such Expenses arise out of or
are imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Declaration of Trust, the creation,
operation or termination of the Trust or the transactions contemplated hereby; provided, however, that the Sponsor shall
not be required to indemnify any Indemnified Person for any Expenses which are
a result of the willful misconduct, bad faith or gross negligence of such
Indemnified Person.


 


8.             The Trust may be
dissolved and terminated before the issuance of the Capital Securities at the
election of the Sponsor.


 


9.             This Declaration of
Trust shall be governed by, and construed in accordance with, the laws of the
State of Delaware (without regard to conflict of laws principles).


 


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


 


	
   

  	
  CAPITAL TRUST, INC., as Sponsor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey G. Jervis

  
	
   

  	
   

  	
  Name: Geoffrey G. Jervis

  
	
   

  	
   

  	
  Title:   Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNYM (DELAWARE), as trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristine K. Gullo

  
	
   

  	
   

  	
  Name: Kristine K. Gullo

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEOFFREY G. JERVIS, as trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Geoffrey G. Jervis

  
					



 


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