Exhibit 10.21


 


 




 





 


AMENDED AND RESTATED TRUST AGREEMENT




among


 


 


GKK CAPITAL LP,


as Depositor


 


 


JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,


as Property Trustee


 


 


CHASE BANK USA, NATIONAL ASSOCIATION,


as Delaware Trustee


 


and


 


 


THE ADMINISTRATIVE TRUSTEES NAMED HEREIN


as Administrative Trustees


 


 


Dated as of May 20, 2005


 


 


GRAMERCY CAPITAL TRUST I




 


 





 





















 


CONTENTS


 


	
  Clause

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  Defined Terms

  	
   

  
	
  Section 1.1.

  	
  Definitions

  	
   

  
	
  ARTICLE II.

  	
  The Trust

  	
   

  
	
  Section 2.1.

  	
  Name

  	
   

  
	
  Section 2.2.

  	
  Office of the Delaware
  Trustee; Principal Place of Business

  	
   

  
	
  Section 2.3.

  	
  Initial Contribution of
  Trust Property; Fees, Costs and Expenses

  	
   

  
	
  Section 2.4.

  	
  Purposes of Trust

  	
   

  
	
  Section 2.5.

  	
  Authorization to Enter
  into Certain Transactions

  	
   

  
	
  Section 2.6.

  	
  Assets of Trust

  	
   

  
	
  Section 2.7.

  	
  Title to Trust Property

  	
   

  
	
  ARTICLE III.

  	
  Payment Account; Paying Agents

  	
   

  
	
  Section 3.1.

  	
  Payment Account

  	
   

  
	
  Section 3.2.

  	
  Appointment of Paying
  Agents

  	
   

  
	
  ARTICLE IV.

  	
  Distributions; Redemption

  	
   

  
	
  Section 4.1.

  	
  Distributions

  	
   

  
	
  Section 4.2.

  	
  Redemption

  	
   

  
	
  Section 4.3.

  	
  Subordination of
  Common Securities

  	
   

  
	
  Section 4.4.

  	
  Payment Procedures

  	
   

  
	
  Section 4.5.

  	
  Withholding Tax

  	
   

  
	
  Section 4.6.

  	
  Tax Returns and Other
  Reports

  	
   

  
	
  Section 4.7.

  	
  Payment of Taxes,
  Duties, Etc. of the Trust

  	
   

  
	
  Section 4.8.

  	
  Payments under
  Indenture or Pursuant to Direct Actions

  	
   

  
	
  Section 4.9.

  	
  Exchanges

  	
   

  
	
  Section 4.10.

  	
  Calculation Agent

  	
   

  
	
  Section 4.11.

  	
  Certain Accounting
  Matters

  	
   

  
	
  ARTICLE V.

  	
  Securities

  	
   

  
	
  Section 5.1.

  	
  Initial
  Ownership

  	
   

  
	
  Section 5.2.

  	
  Authorized
  Trust Securities

  	
   

  
	
  Section 5.3.

  	
  Issuance
  of the Common Securities; Subscription and Purchase of Notes

  	
   

  
	
  Section 5.4.

  	
  The
  Securities Certificates

  	
   

  
	
  Section 5.5.

  	
  Rights
  of Holders

  	
   

  
	
  Section 5.6.

  	
  Book-Entry
  Preferred Securities

  	
   

  
	
  Section 5.7.

  	
  Registration
  of Transfer and Exchange of Preferred Securities Certificates

  	
   

  
				



 


i





















 


	
  Clause

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.8.

  	
  Mutilated,
  Destroyed, Lost or Stolen Securities Certificates

  	
   

  
	
  Section 5.9.

  	
  Persons
  Deemed Holders

  	
   

  
	
  Section 5.10.

  	
  Cancellation

  	
   

  
	
  Section 5.11.

  	
  Ownership
  of Common Securities by Depositor

  	
   

  
	
  Section 5.12.

  	
  Restricted
  Legends

  	
   

  
	
  Section 5.13.

  	
  Form of
  Certificate of Authentication

  	
   

  
	
  ARTICLE VI.

  	
  Meetings; Voting; Acts of Holders

  	
   

  
	
  Section 6.1.

  	
  Notice
  of Meetings

  	
   

  
	
  Section 6.2.

  	
  Meetings
  of Holders of the Preferred Securities

  	
   

  
	
  Section 6.3.

  	
  Voting
  Rights

  	
   

  
	
  Section 6.4.

  	
  Proxies,
  Etc

  	
   

  
	
  Section 6.5.

  	
  Holder
  Action by Written Consent

  	
   

  
	
  Section 6.6.

  	
  Record
  Date for Voting and Other Purposes

  	
   

  
	
  Section 6.7.

  	
  Acts
  of Holders

  	
   

  
	
  Section 6.8.

  	
  Inspection
  of Records

  	
   

  
	
  Section 6.9.

  	
  Limitations
  on Voting Rights

  	
   

  
	
  Section 6.10.

  	
  Acceleration
  of Maturity; Rescission of Annulment; Waivers of Past Defaults

  	
   

  
	
  ARTICLE VII.

  	
  Representations and Warranties

  	
   

  
	
  Section 7.1.

  	
  Representations
  and Warranties of the Property Trustee and the Delaware Trustee

  	
   

  
	
  Section 7.2.

  	
  Representations
  and Warranties of Depositor

  	
   

  
	
  ARTICLE VIII.

  	
  The Trustees

  	
   

  
	
  Section 8.1.

  	
  Number
  of Trustees

  	
   

  
	
  Section 8.2.

  	
  Property
  Trustee Required

  	
   

  
	
  Section 8.3.

  	
  Delaware
  Trustee Required

  	
   

  
	
  Section 8.4.

  	
  Appointment
  of Administrative Trustees

  	
   

  
	
  Section 8.5.

  	
  Duties
  and Responsibilities of the Trustees

  	
   

  
	
  Section 8.6.

  	
  Notices
  of Defaults and Extensions

  	
   

  
	
  Section 8.7.

  	
  Certain
  Rights of Property Trustee

  	
   

  
	
  Section 8.8.

  	
  Delegation
  of Power

  	
   

  
	
  Section 8.9.

  	
  May Hold
  Securities

  	
   

  
	
  Section 8.10.

  	
  Compensation;
  Reimbursement; Indemnity

  	
   

  
	
  Section 8.11.

  	
  Resignation
  and Removal; Appointment of Successor

  	
   

  
	
  Section 8.12.

  	
  Acceptance
  of Appointment by Successor

  	
   

  
	
  Section 8.13.

  	
  Merger,
  Conversion, Consolidation or Succession to Business

  	
   

  
				



 


ii





















 


	
  Clause

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.14.

  	
  Not
  Responsible for Recitals or Issuance of Securities

  	
   

  
	
  Section 8.15.

  	
  Property
  Trustee May File Proofs of Claim

  	
   

  
	
  Section 8.16.

  	
  Reports
  to the Property Trustee

  	
   

  
	
  ARTICLE IX.

  	
  Termination, Liquidation and
  Merger

  	
   

  
	
  Section 9.1.

  	
  Dissolution
  Upon Expiration Date

  	
   

  
	
  Section 9.2.

  	
  Early
  Termination

  	
   

  
	
  Section 9.3.

  	
  Termination

  	
   

  
	
  Section 9.4.

  	
  Liquidation

  	
   

  
	
  Section 9.5.

  	
  Mergers,
  Consolidations, Amalgamations or Replacements of Trust

  	
   

  
	
  ARTICLE X.

  	
  Miscellaneous Provisions

  	
   

  
	
  Section 10.1.

  	
  Limitation
  of Rights of Holders

  	
   

  
	
  Section 10.2.

  	
  Agreed
  Tax Treatment of Trust and Trust Securities

  	
   

  
	
  Section 10.3.

  	
  Amendment

  	
   

  
	
  Section 10.4.

  	
  Separability

  	
   

  
	
  Section 10.5.

  	
  Governing
  Law

  	
   

  
	
  Section 10.6.

  	
  Successors

  	
   

  
	
  Section 10.7.

  	
  Headings

  	
   

  
	
  Section 10.8.

  	
  Reports,
  Notices and Demands

  	
   

  
	
  Section 10.9.

  	
  Agreement
  Not to Petition

  	
   

  
	
  Section 10.10.

  	
  Counterparts

  	
   

  
	
  Exhibit A

  	
  Certificate of Trust of Gramercy Capital Trust I

  	
   

  
	
  Exhibit B

  	
  Form of Common Securities Certificate

  	
   

  
	
  Exhibit C

  	
  Form of Preferred Securities Certificate

  	
   

  
	
  Exhibit D

  	
  Junior Subordinated Indenture

  	
   

  
	
  Exhibit E

  	
  Form of Transferor Certificate to be Executed for Transferees

  	
   

  
	
  Exhibit F

  	
  Form of Officer’s Financial Certificate of the Depositor

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule A

  	
  Calculation of LIBOR

  	
   

  
					



 


iii





















 


THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as of
May 20, 2005, among (i) GKK Capital LP, a Delaware limited partnership
(including any successors or permitted assigns, the “Depositor”), (ii) JPMorgan
Chase Bank, National Association, a national banking association, as property
trustee (in such capacity, the “Property Trustee”), (iii) Chase Bank USA, National Association,
a national banking association, as Delaware trustee (in such capacity, the “Delaware Trustee”), (iv) Marc Holliday, an
individual, Gregory F. Hughes,
an individual and Robert R. Foley, an individual, each of whose address is c/o GKK Capital LP, 420 Lexington Avenue,
New York, NY 10170,
as administrative trustees (in such capacities, each an “Administrative
Trustee” and,
collectively, the “Administrative Trustees” and, together with the Property Trustee and the
Delaware Trustee, the “Trustees”)
and (v) the several Holders, as hereinafter defined.


 


WITNESSETH


 


WHEREAS,
the Depositor and the Delaware Trustee have heretofore created a Delaware
statutory trust pursuant to the Delaware Statutory Trust Act by entering into a
Trust Agreement, dated as of May 19, 2005 (the “Original Trust Agreement”), and
by executing and filing with the Secretary of State of the State of Delaware
the Certificate of Trust, substantially in the form attached as Exhibit A;
and


 


WHEREAS,
the Depositor and the Trustees 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 of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Purchase Agreement and (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in and to the
Notes (as hereinafter defined);


 


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 I have the meanings assigned to them in this
Article I;


 


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


 





















 


(c)           all
accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting principles;


 


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


 


(e)           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;


 


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


 


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


 


“Act” has
the meaning specified in Section 6.7.


 


“Additional
Interest” has
the meaning specified in Section 1.1 of the Indenture.


 


“Additional
Interest Amount”
means, with respect to Trust Securities of a given Liquidation Amount and/or a
given period, the amount of Additional Interest paid by the Depositor on a Like
Amount of Notes for such period.


 


“Additional
Taxes” has
the meaning specified in Section 1.1 of the Indenture.


 


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


 


“Administrative
Trustee” means
each of the Persons identified as an “Administrative
Trustee” in the preamble to this Trust Agreement, solely in each
such Person’s capacity as Administrative Trustee of the Trust and not in such
Person’s individual capacity, or any successor Administrative 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 Depositary Procedures”
means, with respect to any transfer or transaction involving a Book-Entry
Preferred Security, the rules and procedures of the Depositary for such
Book-Entry Preferred Security, in each case to the extent applicable to such
transaction and as in effect from time to time.


 


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 (i) judging
such Person a bankrupt or insolvent, (ii) 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, (iii) appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such Person or of any substantial part of its property or (iv) 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 sixty (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 custodian,
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 insolvent, or the taking of
corporate action by such Person in furtherance of any such action.


 


“Bankruptcy Laws” means all
Federal and state bankruptcy, insolvency, reorganization and other similar
laws, including the United States Bankruptcy Code.


 


“Book-Entry Preferred Security”
means a Preferred Security, the ownership and transfers of which shall be made
through book entries by a Depositary.


 


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


 


“Calculation Agent” has the meaning specified
in Section 4.10.


 


“Closing Date” has the
meaning specified in the Purchase Agreement.


 


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


 


“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 Trust


 


3





















 


Agreement such Commission
is not existing and performing the duties assigned to it, 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 Security” means an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this Trust Agreement.


 


“Corporate Trust Office”
means the principal office of the Property Trustee at which any particular time
its corporate trust business shall be administered, which office at the date of
this Trust Agreement is located at 600 Travis, 50th Floor, Houston,
Texas 77002, Attention:  Institutional
Trust Services—Gramercy Capital Trust I.


 


“Definitive Preferred Securities Certificates”
means Preferred Securities issued in certificated, fully registered form that
are not Global Preferred Securities.


 


“Delaware Statutory  Trust Act” means Chapter 38 of
Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq.,
or any successor statute thereto, in each case as 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.


 


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


 


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


 


“Depositor” has the meaning
specified in the preamble to this Trust Agreement and any successors and
permitted assigns.


 


“Depositor Affiliate” has the
meaning specified in Section 4.9.


 


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


 


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


 


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


 


4





















 


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


 


“EDGAR” has the meaning specified in Section 4.11(c).


 


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


 


(c) 
default by the 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 Trustees 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 thirty (30) days after there has been given, by
registered or certified mail, to the Trustees and to the Depositor by the
Holders of at least twenty five percent (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 ninety (90) days
thereof.


 


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


 


“Expiration Date” has the
meaning specified in Section 9.1.


 


“Extension Period” has the meaning specified in Section 4.1(a)(ii).


 


“Fiscal Year”
shall be the fiscal year of the Trust, which shall be the calendar year, or
such other period as is required by the Code.


 


“Fixed Rate Period”
shall mean the period through the interest payment date in June 2015.


 


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


 


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 deemed to be a beneficial owner
within the meaning of the Delaware Statutory Trust Act.


 


“Indemnified Person” has the
meaning specified in Section 8.10(c).


 


“Indenture” means the Junior
Subordinated Indenture executed and delivered by the Depositor and the Note
Trustee contemporaneously with the execution and delivery of this Trust
Agreement, for the benefit of the holders of the Notes, a copy of which is
attached hereto as Exhibit D, as amended or supplemented from time
to time.


 


“Interest Payment Date”
has the meaning specified in Section 1.1 of the Indenture.


 


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


 


“Investment Company Event”
has the meaning specified in Section 1.1 of the Indenture.


 


“LIBOR”
has the meaning specified in Schedule A.


 


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


 


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


 


“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 paid at maturity 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 of the 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 Interest 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 on which assets are to be distributed to Holders in accordance with Section
9.4(a) hereunder following dissolution of the Trust.


 


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


 


“Majority in Liquidation Amount”
means Common or Preferred Securities, as the case may be, representing more
than fifty percent (50%) of the aggregate Liquidation Amount of all (or a
specified group of) then Outstanding Common or Preferred Securities, as the
case may be.


 


6





















 


“Note Event of Default” means
any “Event of Default” specified in Section 5.1
of 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 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 Depositor’s
Floating Rate Junior Subordinated Notes issued pursuant to the Indenture.


 


“Officers’ Certificate” means
a certificate signed by the Chief Executive Officer, the President or an
Executive Vice President, and by the Chief Financial Officer, Treasurer or an
Assistant Treasurer, of the Depositor, and delivered to the Trustees. Any
Officers’ Certificate delivered with respect to compliance with a condition or
covenant provided for in this Trust Agreement (other than the certificate
provided pursuant to Section 8.16 which is not an Officers’ Certificate)
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.


 


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


 


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


 


“Optional Redemption Price”
means, with respect to any Trust Security, an amount equal to one hundred
percent (100%) of the Liquidation Amount of such Trust Security on the
Redemption Date, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, and/or accrued interest,
including Additional Interest, if


 


7





















 


any, thereon paid by the
Depositor upon the concurrent redemption or payment at maturity of a Like
Amount of Notes.


 


“Optional Note Redemption Price”
means, with respect to any Note to be redeemed on any Redemption Date under the
Indenture, an amount equal to one hundred percent (100%) of the outstanding
principal amount of such Note, together with accrued interest, including any
Additional Interest (to the extent legally enforceable), thereon through but
not including the date fixed as such Redemption Date.


 


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


 


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


 


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


 


(b)  Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities; 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 the provisions of
this Trust Agreement, unless proof satisfactory to the Property Trustee is
presented that any such Trust Securities are held by Holders in whose hands
such Trust Securities are valid, legal and binding obligations of the Trust;


 


provided, 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
Depositor, any Trustee or any Affiliate of the Depositor or of any Trustee
shall be disregarded and deemed not to be Outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of
the Outstanding Preferred Securities are owned by the Depositor, one or more of
the 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 Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.


 


“Owner” means each Person who
is the beneficial owner of Book-Entry Preferred Securities as reflected in the
records of the Depositary or, if a Depositary Participant is not the


 


8





















 


beneficial owner, then
the beneficial owner as reflected in the records of the Depositary Participant.


 


“Paying Agent” means any
Person authorized by the Administrative Trustees to pay Distributions or other
amounts in respect of any Trust Securities on behalf of the Trust.


 


“Payment Account” means a
segregated non-interest-bearing corporate trust account maintained by 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 3.1,
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 Security” means an
undivided beneficial interest in the assets of the Trust, having a Liquidation
Amount of $1,000 and having the rights provided therefor in this Trust
Agreement.


 


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


 


“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 its successor in
interest in such capacity, or any successor Property Trustee appointed as
herein provided.


 


“Purchase Agreement” means
the Purchase Agreement executed and delivered by the Trust, the Depositor and
Merrill Lynch International, as purchaser, contemporaneously with the execution
and delivery of this Trust Agreement, as amended from time to time.


 


“QIB”
means a “qualified institutional buyer” as defined in Rule 144A under the
Securities Act of 1933, as amended.


 


“QP”
means a “qualified purchaser” as defined in Section 2(a)(51) of the
Investment Company Act of 1940, as amended.


 


“QIB/QP” means a QIB that is also a
QP.


 


“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 the stated maturity (or any date of principal
repayment upon early maturity) of the Notes shall be a Redemption Date for a
Like Amount of Trust Securities.


 


“Redemption Price” means the
Special Redemption Price or Optional Redemption Price, as applicable.  If the Depositor has redeemed the Notes at
the Special Note Redemption Price, the Trust shall redeem the Trust Securities
at the Special Redemption Price.  If the
Depositor has


 


9





















 


redeemed the Notes at the
Optional Note Redemption Price, the Trust shall redeem the Trust Securities at
the Optional Redemption Price.


 


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


 


“Responsible Officer” means,
with respect to the Property Trustee, the officer in the Institutional Trust
Services department of the Property Trustee having direct responsibility for
the administration of this Trust Agreement.


 


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


 


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


 


“Securities Register” and “Securities Registrar” have the
respective meanings specified in Section 5.7.


 


“Special Note Redemption Price”
means, with respect to any Note to be redeemed on any Redemption Date under the
Indenture, an amount equal to one hundred seven and one half percent (107.5%)
of the outstanding principal amount of such Note, together with accrued
interest, including Additional Interest, thereon through but not including the
date fixed as such Redemption Date.


 


 “Special
Redemption Price” means, with respect to any Trust
Security, an amount equal to one hundred seven and one half percent (107.5%) of
the Liquidation Amount of such Trust Security on the Redemption Date, plus
accumulated and unpaid Distributions to the Redemption Date, plus the related
amount of the premium, if any, and/or accrued interest, including Additional
Interest, if any, thereon paid by the Depositor upon the concurrent redemption
or payment at maturity of a Like Amount of Notes.


 


“Successor Securities” has
the meaning specified in Section 9.5(a).


 


“Tax Event” has
the meaning specified in Section 1.1 of the Indenture.


 


“Trust” means the Delaware
statutory trust known as “Gramercy
Capital Trust I,” which was created on May 19, 2005 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.


 


“Trust Agreement” means this
Amended and Restated Trust Agreement, as the same may be modified, amended or
supplemented from time to time in accordance with the applicable provisions
hereof, including all Schedules and Exhibits.


 


“Trustees” means the
Administrative Trustees, the Property Trustee and the Delaware Trustee, each as
defined in this Article I.


 


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“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 the trusts of this Trust Agreement.


 


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


 


ARTICLE II.


 


THE
TRUST


 


SECTION 2.1.        Name.


 


The trust continued hereby shall be known as “Gramercy Capital
Trust I”, 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 Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.


 


SECTION 2.2.        Office of the
Delaware Trustee; Office of the Trust.


 


The address of the Delaware Trustee in the State of
Delaware is Chase Bank USA, National Association, 500 Stanton Christiana Road,
Building 4 (3rd Floor), Newark, DE 19713, Attention:  Institutional Trust Services, or such other
address in the State of Delaware as the Delaware Trustee may designate by written
notice to the Holders, the Depositor, the Property Trustee and the
Administrative Trustees. The principal executive office of the Trust is 420
Lexington Avenue, New York, NY 10170, Attention:  Gregory F. Hughes, as such address may be
changed from time to time by the Administrative Trustees following written
notice to the Holders and the other Trustees.


 


SECTION 2.3.        Initial Contribution
of Trust Property; Fees, Costs and Expenses.


 


The Property Trustee acknowledges receipt from the
Depositor in connection with the Original Trust Agreement of the sum of ten
dollars ($10), which constituted the initial Trust Property. The Depositor
shall pay all fees, costs and expenses of the Trust (except with respect to the
Trust Securities) as they arise or shall, upon request of any Trustee, promptly
reimburse such Trustee for any such fees, costs and expenses paid by such
Trustee. The Depositor shall make no claim upon the Trust Property for the
payment of such fees, costs or expenses.


 


SECTION 2.4.        Purposes of Trust.


 


(a)           The
exclusive purposes and functions of the Trust are to (i) issue and sell
Trust Securities and use the proceeds from such sale to acquire the Notes and (ii) 
engage in only those activities necessary or incidental thereto. The Delaware
Trustee, the Property Trustee and the Administrative Trustees are trustees of
the Trust, and have all the rights, powers and duties to the extent set forth
herein.  The Trustees hereby acknowledge
that they are trustees of the Trust.


 


11





















 


(b)           So
long as this Trust Agreement remains in effect, the Trust (or the Trustees
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, the Trust (or the Trustees acting on behalf of the 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) incur
any indebtedness for borrowed money or issue any other debt, (iv) take or
consent to any action that would result in the placement of a Lien on any of
the Trust Property, (v) take or consent to any action that would
reasonably be expected to cause the Trust to become taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes, (vi) take or consent to any action that would cause the Notes to
be treated as other than indebtedness of the Depositor for United States
federal income tax purposes or (vii) take or consent to any action that
would cause the Trust to be deemed to be an “investment company” required to be
registered under the Investment Company Act.


 


SECTION 2.5.        Authorization to
Enter into Certain Transactions.


 


(a)           The
Trustees shall conduct the affairs of the Trust in accordance with and subject
to the terms of this Trust Agreement. In accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter
into all transactions and agreements determined by the Trustees to be
appropriate in exercising the authority, express or implied, otherwise granted
to the Trustees, under this Trust Agreement, and to perform all acts in
furtherance thereof, including the following:


 


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


 


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


 


(B)           to
cause the Trust to enter into, and to execute, deliver and perform on behalf of
the Trust, such agreements as may be necessary or desirable in connection with
the purposes and function of the Trust, including, without limitation, a common
securities subscription agreement and a junior subordinated note purchase
agreement;


 


(C)           assisting
in the sale of the Preferred Securities in one or more transactions exempt from
registration under the Securities Act, and in compliance with applicable state
securities or blue sky laws;


 


(D)          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;


 


(E)           the
appointment of a Paying Agent and Securities Registrar in accordance with this
Trust Agreement;


 


12





















 


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


 


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


 


(H)          preparation
and filing of all applicable tax returns and tax information reports that are
required to be filed on behalf of the Trust;


 


(I)            establishing
a record date with respect to all actions to be taken hereunder that require a
record date to be established, except as provided in Section 6.10(a);


 


(J)            unless
otherwise required by the Delaware Statutory Trust Act to execute on behalf of
the Trust (either acting alone or together with the other Administrative
Trustees) any documents that such Administrative Trustee has the power to
execute pursuant to this Trust Agreement; and


 


(K)          the
taking of any action incidental to the foregoing as such Administrative Trustee
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement.


 


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


 


(A)          the
receipt and holding of legal title of the Notes;


 


(B)           the
establishment of the Payment Account;


 


(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
in accordance with the terms of this Trust Agreement;


 


(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 Trust, provided that the Administrative


 


13





















 


Trustees shall have the power, duty and authority to
act on behalf of the Trust with respect to the preparation, execution and
filing of the certificate of cancellation of the Trust with the Secretary of
State of the State of Delaware; and


 


(I)            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).


 


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


 


(i)            the
negotiation of the terms of, and the execution and delivery of, the Purchase
Agreement providing for the sale of the Preferred Securities in one or more
transactions exempt from registration under the Securities Act, and in
compliance with applicable state securities or blue sky laws; and


 


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


 


(c)           Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized and
directed to conduct the affairs of the Trust and authorized to operate the
Trust so that the Trust will not be taxable as a corporation or classified as
other than a grantor trust for United States federal income tax purposes, so
that the Notes will be treated as indebtedness of the Depositor for United
States federal income tax purposes and so that the Trust will not be deemed to
be an “investment company” required to be registered under the Investment Company
Act.  In respect thereof, each
Administrative Trustee is authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that such
Administrative Trustee determines in his or her discretion to be necessary or
desirable 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 Administrative Trustees be liable to the Trust or the Holders for any
failure to comply with this Section 2.5 to the extent that such
failure results solely from a change in law or regulation or in the
interpretation thereof.


 


(d)           Any
action taken by a Trustee in accordance with its powers shall constitute the
act of and serve to bind the Trust.  In
dealing with any Trustee acting on behalf of the Trust, no Person shall be
required to inquire into the authority of such Trustee to bind the Trust.  Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of any Trustee as set forth in
this Trust Agreement.


 


SECTION 2.6.        Assets of Trust.


 


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


 


14





















 


SECTION 2.7.        Title to Trust
Property.


 


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


 


(b)           The
Holders shall not have any right or title to the Trust Property other than the
undivided beneficial interest in the assets of the 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 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.


 


ARTICLE III.


 


PAYMENT ACCOUNT;  PAYING AGENTS


 


SECTION 3.1.        Payment Account.


 


(a)           On
or prior to the Closing Date, the Property Trustee shall establish the Payment
Account. The Property Trustee and the Paying Agent 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.


 


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


 


SECTION 3.2.        Appointment of Paying
Agents.


 


The Paying Agent shall initially be the Property
Trustee. 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. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon thirty (30) days’ written notice to the Administrative
Trustees and the Property Trustee. If the Property Trustee 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 appointed by the
Administrative Trustees shall execute and deliver to the Trustees an instrument
in which such successor Paying Agent shall agree with the Trustees that as
Paying Agent, such successor 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


 


15





















 


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 Article VIII shall apply to the Property Trustee also in its
role as Paying Agent, for so long as the Property Trustee 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.


 


ARTICLE IV.


 


DISTRIBUTIONS;
REDEMPTION


 


SECTION 4.1.        Distributions.


 


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


 


(i)            Distributions
on the Trust Securities shall be cumulative, and shall accumulate whether or
not there are funds of the Trust available for the payment of
Distributions.  Distributions shall
accumulate from May 20, 2005, and, except as provided in clause (ii) below,
shall be payable quarterly
in arrears on March 30, June 30,
September 30
and December 30 of
each year, commencing on September 30,
2005.  If any date on which a
Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after each such date until the
next succeeding Business Day), except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date (each date on which Distributions are payable in accordance with
this Section 4.1(a)(i), a “Distribution Date”);


 


(ii)           in
the event (and to the extent) that the Depositor exercises its right under the
Indenture to defer the payment of interest on the Notes, upon thirty (30) days’
prior written notice, Distributions on the Trust Securities shall be
deferred.  Under the Indenture, so long
as no Note Event of Default has occurred and is continuing and upon thirty (30)
days’ prior written notice, the Depositor shall have the right, at any time and
from time to time during the term of the Notes, to defer the payment of
interest on the Notes for a period of up to four (4) consecutive
quarterly  interest payment periods
(each such extended interest payment period, an “Extension Period”), during
which Extension Period no interest on the Notes shall be due and payable
(except any Additional Tax Sums that may be due and payable).  No interest on the Notes shall be due and
payable during an Extension Period, except at the end thereof.  If Distributions are deferred, the deferred
Distributions shall be paid on the date that the related Extension Period


 


16





















 


terminates, to Holders of the Trust Securities as they
appear on the books and records of the Trust on the record date immediately
preceding such termination date.


 


(iii)          Distributions
shall accumulate in respect of the Trust Securities at a fixed rate equal to 7.57%
per annum through the interest payment date in June 2015 and thereafter at a variable rate equal to LIBOR plus
3.00% per annum of
the Liquidation Amount of the Trust Securities, such rate being the rate of
interest payable on the Notes.  LIBOR
shall be determined by the Calculation Agent in accordance with Schedule A.
During the Fixed Rate Period, the amount of Distributions payable for any
period less than a full Distribution period shall be computed on the basis of a
360-day year of twelve 30-day months and the amount payable for any partial
period shall be computed on the basis of the number of days elapsed in a 360-day
year of twelve 30-day months.  Upon
expiration of the Fixed Rate Period, the amount of interest payable for any
Distribution period will be computed on the basis of a 360-day year and the
actual number of days elapsed in the relevant Distribution period.  The amount of
Distributions payable for any period shall include any Additional Interest
Amounts in respect of such period; and


 


(iv)          Distributions
on the Trust Securities shall be made by the Paying Agent from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the 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
at the close of business on the fifteenth day (whether or not a Business Day)
preceding the relevant Distribution Date, except that Distributions and any
Additional Interest Amounts payable on the stated maturity (or any date of
principal repayment upon early maturity) of the principal of a Trust Security
or on a Redemption Date shall be paid to the Person to whom principal is
paid.  Distributions payable on any Trust
Securities that are not punctually paid on any Distribution Date as a result of
the Depositor having failed to make an interest payment under the Notes will
cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distributions and
any Additional Interest Amounts will instead be payable to 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 Distribution
and Additional Interest Amount, established in the same manner, and on the same
date, as such is established with respect to the Notes under the Indenture.


 


(c)           As
a condition to the payment of any principal of or interest on the Trust
Securities without the imposition of withholding tax, the Administrative
Trustees shall require the previous delivery of properly completed and signed
applicable U.S. federal income tax certifications (generally, an Internal
Revenue Service Form W-9 (or applicable successor form) in the case of a
person that is a “United States person” within the meaning of Section 7701(a)(30)
of the Code or an Internal Revenue Service Form W-8 (or applicable
successor form) in the case of a person that is not a “United States person”
within the meaning of Section 7701(a)(30) of the Code) and any other
certification acceptable to it to enable the Property Trustee or any Paying


 


17





















 


Agent to determine
their respective duties and liabilities with respect to any taxes or other
charges that they may be required to pay, deduct or withhold in respect of such
Trust Securities.


 


SECTION 4.2.        Redemption.


 


(a)           On
each Note Redemption Date and on the stated maturity (or any date of principal
repayment upon early maturity) of the Notes and on each other date on (or in
respect of) which any principal on the Notes is repaid, the Trust will be
required to redeem a Like Amount of Trust Securities at the Redemption Price.


 


(b)           Notice
of redemption shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not less than thirty (30) nor more than sixty (60) days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder’s address appearing in the Securities 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 estimate of the Redemption Price
provided pursuant to the Indenture, as calculated by the Depositor, together
with a statement that it is an estimate and that the actual Redemption Price
will be calculated by the Calculation Agent on the fifth Business Day prior to
the Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date that such Redemption Price is
calculated);


 


(iii)          if
less than all the Outstanding Trust Securities are to be redeemed, the
identification (and, in the case of partial redemption, the respective amounts)
and Liquidation Amounts 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, or portion thereof, to be redeemed and that
Distributions thereon will cease to accumulate on such Trust Security or such
portion, as the case may be, on and after said date, except as provided in Section 4.2(d);


 


(v)           the
place or places where the Trust Securities are to be surrendered for the
payment of the Redemption Price; and


 


(vi)          such
other provisions as the Property Trustee deems relevant.


 


(c)           The
Trust Securities (or portion thereof) redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption or payment at maturity of Notes. Redemptions of the Trust Securities
(or portion thereof) shall be made and the Redemption Price shall be payable on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption
Price.  Under the Indenture, the Notes
may be redeemed by the Depositor on any Interest Payment Date, at the Depositor’s
option, on or after June 30,
2010, in whole or in part, from
time to time at the Optional Note Redemption Price.  The Notes may also be redeemed by the
Depositor, at its option pursuant to the terms of the Indenture, in whole but
not in part,


 


18





















 


upon the
occurrence and during the continuation of an Investment Company Event or a Tax
Event, at the Special Note Redemption Price.


 


(d)           If
the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then by 10:00 A.M., New York City time, on the Redemption
Date, the Depositor shall deposit sufficient funds with the Property Trustee to
pay the Redemption Price.  If such
deposit has been made by such time, then by 12:00 noon, New York City time, on
the Redemption Date, the Property Trustee will, with respect to Book-Entry
Preferred Securities, irrevocably deposit with the Depositary for such
Book-Entry Preferred Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give such Depositary
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 will irrevocably
deposit with the Paying Agent, to the extent available therefor, funds
sufficient to pay 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 (or portion
thereof) called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of Holders holding Trust Securities (or portion thereof) 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, in
the case of a partial redemption, the right of such Holders to receive a new
Trust Security or Securities of authorized denominations, in aggregate Liquidation
Amount equal to the unredeemed portion of such Trust Security or Securities,
and such Securities (or portion thereof) called for redemption 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 Business Day (and no interest
shall accrue in respect of the amounts whose payment is so delayed for the
period from and after each such date until the next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities (or portion
thereof) called for redemption is improperly withheld or refused and not paid
either by the Trust, Distributions on such Trust Securities (or portion
thereof) will continue to accumulate, as set forth in Section 4.1,
from the Redemption Date originally established by the Trust for such Trust
Securities (or portion thereof) 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
aggregate Liquidation Amounts of the Common Securities and the Preferred
Securities.  The Preferred Securities to
be redeemed shall be selected on a pro rata basis based upon their
respective Liquidation Amounts not more than sixty (60) days prior to the


 


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Redemption Date by
the Property Trustee from the Outstanding Preferred Securities not previously
called for redemption; provided, that
with respect to Holders that would be required to hold less than one hundred
(100) but more than zero (0) Trust Securities as a result of such redemption,
the Trust shall redeem Trust Securities of each such Holder so that after such
redemption such Holder shall hold either one hundred (100) Trust Securities or
such Holder no longer holds any Trust Securities, and shall use such method
(including, without limitation, by lot) as the Trust shall deem fair and
appropriate; and provided, further, that
so long as the Preferred Securities are Book-Entry Preferred Securities, such
selection shall be made in accordance with the Applicable Depositary Procedures
for the Preferred Securities by such Depositary. The Property Trustee shall
promptly notify the Securities Registrar in writing of the Preferred Securities
(or portion thereof) selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be 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.


 


(f)            The
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.


 


SECTION 4.3.        Subordination of
Common Securities.


 


(a)           Payment
of Distributions (including any Additional Interest Amounts) on, the Redemption
Price of and the Liquidation Distribution in respect of, the Trust Securities,
as applicable, shall be made, pro rata among the Common Securities and the Preferred
Securities based on the Liquidation Amount of the respective Trust Securities; provided,  that
if on any Distribution Date, Redemption Date or Liquidation Date an Event of
Default shall have occurred and be continuing, no payment of any Distribution
(including any Additional Interest 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 Interest
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
Interest Amounts) on, or the Redemption Price of or the Liquidation
Distribution in respect of, the Preferred Securities then due and payable.


 


(b)           In
the case of the occurrence of any 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


 


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Agreement until
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 all 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
Interest Amounts), the Redemption Price, Liquidation Amount or any other
amounts in respect of the Preferred Securities shall be made by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing at least ten (10) Business Days prior to
the date for payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant record date, in
which case such payments shall be made by check mailed to the address of such
Person as such address shall appear in the Securities Register.  If any Preferred Securities are held by a
Depositary, such Distributions thereon shall be made to the Depositary in
immediately available funds. Payments in respect of the Common Securities shall
be made in such manner as shall be mutually agreed between the Property Trustee
and the Holder of all the Common Securities.


 


SECTION 4.5.        Withholding Tax.


 


(a)           The
Trust and the Administrative Trustees shall comply with all withholding and
backup withholding tax requirements under United States federal, state and
local law.  The Administrative Trustees
on behalf of the Trust shall request, and the Holders shall provide to the
Trust, such forms or certificates as are necessary to establish an exemption
from withholding and backup withholding tax with respect to each Holder and any
representations and forms as shall reasonably be requested by the
Administrative Trustees on behalf of the Trust to assist it in determining the
extent of, and in fulfilling, its withholding and backup withholding tax
obligations.  The Administrative Trustees
shall file required forms with applicable jurisdictions and, unless an
exemption from withholding and backup withholding tax is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions.  To the extent
that the Trust is required to withhold and pay over any amounts to any
jurisdiction with respect to Distributions or allocations to any Holder, the
amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Holder.  In the event
of any claimed overwithholding, Holders shall be limited to an action against
the applicable jurisdiction.  If the
amount required to be withheld was not withheld from actual Distributions made,
the Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.


 


SECTION 4.6.        Tax Returns and Other
Reports.


 


The
Administrative Trustees shall prepare (or cause to be prepared) at the
principal office of the Trust in the United States, as defined for purposes of
Treasury regulations section 301.7701-7, at the Depositor’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 Trust.  The


 


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Administrative
Trustees shall prepare at the principal office of the Trust in the United
States, as defined for purposes of Treasury regulations section 301.7701-7,
and furnish (or cause to be prepared and furnished), by January 31 in each
taxable year of the Trust to each Holder all Internal Revenue Service forms and
returns required to be provided by the Trust. The Administrative Trustees shall
provide the Depositor, Cohen Bros. & Company and the Property Trustee
with a copy of all such returns and reports promptly after such filing or
furnishing.


 


SECTION 4.7.        Payment of Taxes,
Duties, Etc. of the Trust.


 


Upon receipt under the Notes of Additional Tax Sums
and upon the written direction of the Administrative Trustees, the Property
Trustee shall promptly pay, solely out of monies on deposit pursuant to this
Trust Agreement, any Additional Taxes imposed on the Trust by the United States
or any other taxing authority.


 


SECTION 4.8.        Payments under
Indenture or Pursuant to Direct Actions.


 


Any amount payable hereunder to any Holder of
Preferred Securities shall be reduced by the amount of any corresponding
payment such Holder (or any Owner with respect thereto) has directly received
pursuant to Section 5.8 of the Indenture or Section 6.10(b) of
this Trust Agreement.


 


SECTION 4.9.        Exchanges.


 


(a)           If
at any time the Depositor or any of its Affiliates (in either case, a “Depositor Affiliate”) is the
Owner or Holder of any Preferred Securities, such Depositor Affiliate shall
have the right to deliver to the Property Trustee all or such portion of its
Preferred Securities as it elects and, subject to compliance with Sections 2.2
and 3.5 of the Indenture, receive, in exchange therefor, a Like Amount of
Notes.  Such election shall be exercisable
effective on any Distribution Date by such Depositor Affiliate delivering to
the Property Trustee (i) at least ten (10) Business Days prior to the
Distribution Date on which such exchange is to occur, the registration
instructions and the documentation, if any, required pursuant to Sections 2.2
and 3.5 of the Indenture to enable the Indenture Trustee to issue the requested
Like Amount of Notes, (ii) a written notice of such election specifying
the Liquidation Amount of Preferred Securities with respect to which such
election is being made and the Distribution Date on which such exchange shall
occur, which Distribution Date shall be not less than ten (10) Business
Days after the date of receipt by the Property Trustee of such election notice
and (iii) shall be conditioned upon such Depositor Affiliate having
delivered or caused to be delivered to the Property Trustee or its designee the
Preferred Securities that are the subject of such election by 10:00 A.M.
New York time, on the Distribution Date on which such exchange is to
occur.  After the exchange, such
Preferred Securities will be canceled and will no longer be deemed to be
Outstanding and all rights of the Depositor Affiliate with respect to such
Preferred Securities will cease.


 


(b)           In
the case of an exchange described in Section 4.9(a), the Property
Trustee on behalf of the Trust will, on the date of such exchange, exchange
Notes having a principal amount equal to a proportional amount of the aggregate
Liquidation Amount of the Outstanding Common Securities, based on the ratio of
the aggregate Liquidation Amount of the Preferred Securities exchanged pursuant
to Section 4.9(a) divided by the aggregate Liquidation Amount
of


 


22





















 


the Preferred
Securities Outstanding immediately prior to such exchange, for such
proportional amount of Common Securities held by the Depositor (which
contemporaneously shall be canceled and no longer be deemed to be Outstanding);
provided,
that the Depositor delivers or causes to be delivered to the Property Trustee
or its designee the required amount of Common Securities to be exchanged by
10:00 A.M. New York time, on the Distribution Date on which such exchange
is to occur.


 


SECTION 4.10.      Calculation Agent.


 


(a)           The
Property Trustee shall initially, and, subject to the immediately following
sentence, for so long as it holds any of the Notes, be the Calculation Agent
for purposes of determining LIBOR for each Distribution Date.  The Calculation Agent may be removed by the
Administrative Trustees at any time.  If
the Calculation Agent is unable or unwilling to act as such or is removed by
the Administrative Trustees, the Administrative Trustees will promptly appoint
as a replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in six-month Eurodollar deposits in the international
Eurodollar market and which does not control or is not controlled by or under
common control with the Administrative Trustee or its Affiliates.  The Calculation Agent may not resign its
duties without a successor having been duly appointed.


 


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


 


SECTION 4.11.      Certain Accounting Matters.


 


(a)           At
all times during the existence of the Trust, the Administrative Trustees shall
keep, or cause to be kept at the principal office of the Trust in the United
States, as defined for purposes of Treasury Regulations section 301.7701-7,
full books of account, records and supporting documents, which shall reflect in
reasonable detail each transaction of the Trust.  The books of account shall be maintained on
the accrual method of accounting, in accordance with generally accepted
accounting principles, consistently applied.


 


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(b)           The
Administrative Trustees shall either (i) if the Depositor is then subject
to such reporting requirements, cause each Form 10-K and Form 10-Q
prepared by the Depositor and filed with the Commission in accordance with the
Exchange Act to be delivered to each Holder, with a copy to the Property
Trustee, within thirty (30) days after the filing thereof or (ii) cause
to be prepared at the principal office of the Trust in the United States, as
defined for purposes of Treasury Regulations section 301.7701-7, and
delivered to each of the Holders, with a copy to the Property Trustee, within
ninety (90) days after the end of each Fiscal Year, annual financial statements
of the Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.


 


(c)           If
the Depositor intends to file its annual and quarterly information with the
Commission in electronic form pursuant to Regulation S-T of the Commission
using the Commission’s Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system, the Administrative
Trustees shall notify the Property Trustee in the manner prescribed herein of
each such annual and quarterly filing. 
The Property Trustee is hereby authorized and directed to access the EDGAR
system for purposes of retrieving the financial information so filed.  Compliance with the foregoing shall
constitute delivery by the Administrative Trustees of its financial statements
to the Property Trustee in compliance with the provisions of Section 314(a) of
the Trust Indenture Act, if applicable. 
The Property Trustee shall have no duty to search for or obtain any
electronic or other filings that the Depositor makes with the Commission,
regardless of whether such filings are periodic, supplemental or otherwise.  Delivery of reports, information and
documents to the Property Trustee pursuant to this Section 4.11(c) shall
be solely for purposes of compliance with this Section 4.11 and, if
applicable, with Section 314(a) of the Trust Indenture Act.  The Property Trustee’s receipt of such
reports, information and documents shall not constitute notice to it of the
content thereof or any matter determinable from the content thereof, including
the Depositor’s compliance with any of its covenants hereunder, as to which the
Property Trustee is entitled to rely upon Officers’ Certificates.


 


(d)           The
Trust shall maintain one or more bank accounts in the United States, as defined
for purposes of Treasury Regulations section 301.7701-7, in the name and
for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Notes held by the Property Trustee
shall be made directly to the Payment Account and no other funds of the Trust
shall be deposited in the Payment Account. 
The sole signatories for such accounts (including the Payment Account)
shall be designated by the Property Trustee.


 


ARTICLE V.


 


SECURITIES


 


SECTION 5.1.        Initial
Ownership.


 


Upon the creation of the Trust and the contribution by
the Depositor referred to in Section 2.3 and until the issuance of
the Trust Securities, and at any time during which no Trust Securities are
Outstanding, the Depositor shall be the sole beneficial owner of the Trust.


 


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SECTION 5.2.        Authorized
Trust Securities.


 


The Trust shall be authorized to issue one series of
Preferred Securities having an aggregate Liquidation Amount of $50,000,000 and one series of Common
Securities having an aggregate Liquidation Amount of $1,550,000.


 


SECTION 5.3.        Issuance
of the Common Securities; Subscription and Purchase of Notes.


 


On the Closing Date, an Administrative Trustee, on
behalf of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, evidencing an
aggregate of One Thousand Five Hundred Fifty Common Securities having an
aggregate Liquidation Amount of One
Million Five Hundred Fifty Thousand
Dollars $1,550,000,
against receipt by the Trust of the aggregate purchase price of such Common
Securities of One Million Five
Hundred Fifty Thousand
Dollars $1,550,000.
Contemporaneously therewith and with the sale by the Trust to the Holders of an
aggregate of 50,000
Preferred Securities having an aggregate Liquidation Amount of Fifty Million Dollars $50,000,000,
an Administrative Trustee, on behalf of the Trust, shall purchase from the
Depositor Notes, to be registered in the name of the Property Trustee on behalf
of the Trust and having an aggregate principal amount equal to Fifty One Million Five Hundred Fifty
Thousand Dollars $51,550,000, and, in satisfaction of the purchase price for such Notes,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor
the sum of Fifty One Million
Five Hundred Fifty Thousand Dollars $51,550,000 (being
the aggregate amount paid by the Holders for the Preferred Securities, and the
amount paid by the Depositor for the Common Securities).


 


SECTION 5.4.        The
Securities Certificates.


 


(a)           The
Preferred Securities Certificates shall be issued in minimum denominations of
$100,000 Liquidation Amount and integral multiples of $1,000 in excess thereof,
and the Common Securities Certificates shall be issued in minimum denominations
of $10,000 Liquidation Amount and integral multiples of $1,000 in excess
thereof.  The Securities Certificates
shall be executed on behalf of the Trust by manual or facsimile signature of at
least one Administrative Trustee. 
Securities Certificates bearing the signatures of individuals who were,
at the time when such signatures shall have been affixed, authorized to sign
such Securities Certificates on behalf of the 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 Securities Certificates or did not have such authority at the
date of delivery of such Securities Certificates.


 


(b)           On
the Closing Date, upon the written order of an authorized officer of the
Depositor, the Administrative Trustees shall cause Securities Certificates to
be executed on behalf of the Trust and delivered, without further corporate
action by the Depositor, in authorized denominations.


 


(c)           The
Preferred Securities issued to QIBs/QPs shall be, except as provided in Section 5.6,
Book-Entry Preferred Securities issued in the form of one or more Global
Preferred Securities registered in the name of the Depositary, or its nominee
and deposited with the


 


25





















 


Depositary
or a custodian for the Depositary for credit by the Depositary to the
respective accounts of the Depositary Participants thereof (or such other
accounts as they may direct).  The Preferred Securities issued to a Person
other than a QIB/QP shall be issued in the form of Definitive Preferred
Securities Certificates.


 


(d)           A
Preferred Security shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee.  Such signature shall be conclusive evidence
that the Preferred Security has been authenticated under this Trust
Agreement.  Upon written order of the
Trust signed by one Administrative Trustee, the Property Trustee shall
authenticate the Preferred Securities for original issue.  The Property Trustee may appoint an
authenticating agent that is a U.S. Person acceptable to the Trust to
authenticate the Preferred Securities.  A
Common Security need not be so authenticated and shall be valid upon execution
by one or more Administrative Trustees. 
The form of this certificate of authentication can be found in Section 5.13.


 


SECTION 5.5.        Rights
of Holders.


 


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 non-assessable by the
Trust.  Except as provided in Section 5.11(b),
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.


 


SECTION 5.6.        Book-Entry
Preferred Securities.


 


(a)           A
Global Preferred Security may be exchanged, in whole or in part, for Definitive
Preferred Securities Certificates registered in the names of the Owners only if
such exchange complies with Section 5.7 and (i) the Depositary
advises the Administrative Trustees and the Property Trustee in writing that
the Depositary is no longer willing or able properly to discharge its responsibilities
with respect to the Global Preferred Security, and no qualified successor is
appointed by the Administrative Trustees within ninety (90) days of receipt of
such notice, (ii) the Depositary ceases to be a clearing agency registered
under the Exchange Act and the Administrative Trustees fail to appoint a
qualified successor within ninety (90) days of obtaining knowledge of such
event, (iii) the Administrative Trustees at their option advise the
Property Trustee in writing that the Trust elects to terminate the book-entry
system through the Depositary or (iv) a Note Event of Default has occurred
and is continuing. Upon the occurrence of any event specified in clause (i),
(ii), (iii) or (iv) above, the Administrative Trustees shall notify
the Depositary and instruct the Depositary to notify all Owners of Book-Entry
Preferred Securities, the Delaware Trustee and the Property Trustee of the
occurrence of such event and of the availability of the Definitive Preferred
Securities Certificates to Owners of the Preferred Securities requesting the
same. Upon the issuance of Definitive Preferred Securities Certificates, the
Trustees shall recognize the Holders of the Definitive Preferred Securities
Certificates as Holders.  Notwithstanding
the foregoing, if an Owner of a beneficial interest in a Global Preferred
Security wishes at any time to transfer an interest in such Global Preferred
Security to a Person other than a QIB/QP, such transfer shall be effected,
subject to the Applicable Depositary Procedures, in accordance with the
provisions of this Section 5.6 and Section 5.7, and


 


26





















 


the
transferee shall receive a Definitive Preferred Securities Certificate in
connection with such transfer.  A holder
of a Definitive Preferred Securities Certificate that is a QIB/QP may, upon
request and in accordance with the provisions of this Section 5.6
and Section 5.7, exchange such Definitive Preferred Securities
Certificate for a beneficial interest in a Global Preferred Security.


 


(b)           If
any Global Preferred Security is to be exchanged for Definitive Preferred
Securities Certificates or canceled in part, or if any Definitive Preferred
Securities Certificate is to be exchanged in whole or in part for any Global
Preferred Security, then either (i) such Global Preferred Security shall
be so surrendered for exchange or cancellation as provided in this Article V
or (ii) the aggregate Liquidation Amount represented by such Global
Preferred Security shall be reduced, subject to Section 5.4, or
increased by an amount equal to the Liquidation Amount represented by that
portion of the Global Preferred Security to be so exchanged or canceled, or
equal to the Liquidation Amount represented by such Definitive Preferred
Securities Certificates to be so exchanged for any Global Preferred Security,
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 Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records.
Upon any such surrender to the Administrative Trustees or the Securities
Registrar of any Global Preferred Security or Securities by the Depositary,
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 Depositary.  None of the Securities Registrar or the Trustees
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.


 


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


 


(d)           The
Depositary or its nominee, as registered owner of a Global Preferred Security,
shall be the Holder of such Global Preferred Security for all purposes under
this Trust Agreement and the Global Preferred Security, and Owners with respect
to a Global Preferred Security shall hold such interests pursuant to the
Applicable Depositary Procedures. The Securities Registrar and the Trustees shall
be entitled to deal with the Depositary for all purposes of this Trust
Agreement relating to the Global Preferred Securities (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 and the giving of
notices) as the sole Holder of the Book-Entry Preferred Securities represented
thereby and shall have no obligations to the Owners thereof.  None of the Trustees nor
the Securities Registrar shall have any liability in respect of any transfers
effected by the Depositary.


 


(e)           The
rights of the Owners of the Book-Entry Preferred Securities shall be exercised
only through the Depositary and shall be limited to those established by law,
the Applicable Depositary Procedures and agreements between such Owners and the
Depositary and/or the Depositary Participants; provided, that
solely for the purpose of determining whether


 


27





















 


the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, to the extent that Preferred Securities are
represented by a Global Preferred Security, the Trustees may conclusively rely
on, and shall be fully protected in relying on, any written instrument
(including a proxy) delivered to the Property Trustee by the Depositary setting
forth the Owners’ votes or assigning the right to vote on any matter to any
other Persons either in whole or in part. 
To the extent that Preferred Securities are represented by a Global
Preferred Security, the initial Depositary will make book-entry transfers among
the Depositary Participants and receive and transmit payments on the Preferred
Securities that are represented by a Global Preferred Security to such
Depositary Participants, and none of the Depositor or the Trustees shall have
any responsibility or obligation with respect thereto.


 


(f)            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 Global Preferred Security, the Trustees shall give all such notices and
communications to the Depositary, and shall have no obligations to the Owners.


 


SECTION 5.7.        Registration
of Transfer and Exchange of Preferred Securities Certificates.


 


(a)           The
Property Trustee shall keep or cause to be kept, at the Corporate Trust Office,
a register or registers (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 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.  The provisions of Article VIII
shall apply to the Property Trustee in its role as Securities Registrar.


 


(b)           Subject
to Section 5.7(d), upon surrender for registration of transfer of any
Preferred Securities Certificate at the office or agency maintained pursuant to
Section 5.7(f), the Administrative Trustees or any one of them
shall execute by manual or facsimile signature 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 as may be required by this Trust Agreement dated the date of
execution by such Administrative Trustee or Trustees.  At the option of a Holder, Preferred Securities
Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificate to be exchanged at the office
or agency maintained pursuant to Section 5.7(f).  Whenever any Preferred Securities
Certificates are so surrendered for exchange, the Administrative Trustees or
any one of them shall execute by manual or facsimile signature and deliver to
the Property Trustee, and the Property Trustee shall authenticate and deliver,
the Preferred Securities Certificates that the Holder making the exchange is
entitled to receive.


 


(c)           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 fifteen (15) days before the day of selection for
redemption of such Preferred Securities pursuant to


 


28





















 


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.


 


(d)           Every
Preferred Securities Certificate presented or surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Securities Registrar duly
executed by the Holder or such Holder’s attorney duly authorized in writing and
accompanied by a certificate of the transferee substantially in the form set
forth as Exhibit E hereto.


 


(e)           No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, but the Property Trustee on behalf of the
Trust 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.


 


(f)            The
Administrative Trustees shall designate an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and initially designate the Corporate
Trust Office as its office and agency for such purposes. The Administrative
Trustees shall give prompt written notice to the Depositor, the Property
Trustee and to the Holders of any change in the location of any such office or
agency.


 


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


 


(h)           Neither
the Trustee nor the Securities Registrar shall be responsible for ascertaining
whether any transfer hereunder complies with the registration provisions of or
any exemptions from the Securities Act, applicable state securities laws or the
applicable laws of any other jurisdiction, ERISA, the Code or the Investment
Company Act; provided, that if a certificate is specifically required by the
express terms of this Section 5.7 to be delivered to the Trustee or the
Securities Registrar by a Holder or transferee of a Security, the Trustee and
the Securities Registrar shall be under a duty to receive and examine the same
to determine whether or not the certificate substantially conforms on its face
to the requirements of this Indenture and shall promptly notify the party
delivering the same if such certificate does not comply with such terms.


 


SECTION 5.8.        Mutilated, Destroyed,
Lost or Stolen Securities Certificates.


 


(a)           If
any mutilated Securities Certificate shall be surrendered to the Securities
Registrar together with such security or indemnity as may be required by the
Securities Registrar to save each of the Trustees harmless, the Administrative
Trustees, or any one of them, on behalf of the Trust, shall execute and make
available for delivery in exchange therefor a new Securities Certificate of
like class, tenor and denomination.


 


(b)           If
the Securities Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Securities Certificate and there shall
be delivered to the Securities Registrar such security or indemnity as may be
required by it to save each of the


 


29





















 


Trustees harmless,
then in the absence of notice that such Securities Certificate shall have been
acquired by a protected purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust, shall execute and make available for delivery,
and, with respect to Preferred Securities, the Property Trustee shall
authenticate, in exchange for or in lieu of any such destroyed, lost or stolen
Securities Certificate, a new Securities Certificate of like class, tenor and
denomination.


 


(c)           In
connection with the issuance of any new Securities Certificate under this Section 5.8,
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.


 


(d)           Any
duplicate Securities Certificate issued pursuant to this Section 5.8
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust corresponding to that evidenced by the mutilated, lost,
stolen or destroyed Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Securities Certificate shall be found at any
time.


 


(e)           If
any such mutilated, destroyed, lost or stolen Securities Certificate has become
or is about to become due and payable, the Depositor in its discretion may
provide the Administrative Trustee with the funds to pay such Trust Security
and upon receipt of such funds, the Administrative Trustee shall pay such Trust
Security instead of issuing a new Securities Certificate.


 


(f)            The
provisions of this Section 5.8 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement of mutilated, destroyed, lost or stolen Securities Certificates.


 


SECTION 5.9.        Persons Deemed
Holders.


 


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


 


SECTION 5.10.      Cancellation.


 


All Preferred Securities Certificates surrendered for
registration of transfer or exchange or for payment shall, if surrendered to
any Person other than the Property Trustee, be delivered to the Property
Trustee, and any such Preferred Securities Certificates and Preferred Securities
Certificates surrendered directly to the Property Trustee for any such purpose
shall be promptly canceled by it.  The
Administrative Trustees may at any time deliver to the Property Trustee for
cancellation any Preferred Securities Certificates previously delivered
hereunder that the Administrative Trustees may have acquired in any manner
whatsoever, and all Preferred Securities Certificates so delivered shall be
promptly canceled by the Property Trustee. 
No Preferred Securities Certificates shall be executed and delivered in
lieu of or in exchange for any Preferred Securities Certificates canceled as
provided in this Section 5.10, except as expressly permitted by
this Trust Agreement.  All canceled
Preferred Securities Certificates shall be retained by the Property Trustee in
accordance with its customary practices.


 


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SECTION 5.11.      Ownership
of Common Securities by Depositor.


 


(a)           On
the Closing Date, the Depositor shall acquire, and thereafter shall retain,
beneficial and record ownership of the Common Securities. Neither the Depositor
nor any successor Holder of the Common Securities may transfer less than all
the Common Securities, and the Depositor or any such successor Holder may
transfer the Common Securities only (i) in connection with a consolidation
or merger of the Depositor into another Person, or any conveyance, transfer or
lease by the Depositor of its properties and assets substantially as an
entirety to any Person (in which event such Common Securities will be
transferred to such surviving entity, transferee or lessee, as the case may
be), pursuant to Section 8.1 of the Indenture or (ii) to the
Depositor or an Affiliate of the Depositor, in each such case 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 Depositor to contain a
legend stating substantially “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN
COMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT.”


 


(b)           Any
Holder of the Common Securities shall be liable for the debts and obligations
of the Trust in the manner and to the extent set forth with respect to the
Depositor and agrees that it shall be subject to all liabilities to which the
Depositor may be subject and, prior to becoming such a Holder, shall deliver to
the Administrative Trustees an instrument of assumption satisfactory to such
Trustees.


 


SECTION 5.12.      Restricted
Legends.


 


(a)           Each
Preferred Security Certificate shall bear a legend in substantially the
following form:


 


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


 


UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC TO GRAMERCY
CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &


 


31





















 


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


 


THE PREFERRED SECURITIES REPRESENTED BY THIS
CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH
PREFERRED SECURITIES OR ANY INTEREST THEREIN, MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM.  EACH PURCHASER OF
ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


 


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


 


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


 


THE HOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN,
BY ITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND


 


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


 


(b)           The
above legend shall not be removed from any of the Preferred Securities Certificates
unless there is delivered to the Property Trustee and the Depositor
satisfactory evidence, which may include an opinion of counsel, as may be
reasonably required to ensure that any future transfers thereof may be made
without restriction under the provisions of the Securities Act and other
applicable law.  Upon provision of such
satisfactory evidence, one or more of the Administrative Trustees on behalf of
the Trust shall execute and deliver to the Property Trustee, and the Property
Trustee shall deliver, at the written direction of the Administrative Trustees
and the Depositor, Preferred Securities Certificates that do not bear the
legend.


 


SECTION 5.13.      Form of Certificate of Authentication.


 


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


 


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


 


	
  Dated:

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

  not in its individual capacity, but solely as Property

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized signatory

  



 


33





















 


ARTICLE VI.


 


MEETINGS; VOTING; ACTS OF HOLDERS


 


SECTION 6.1.        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 Property Trustee pursuant to Section 10.8 to each Holder of
Preferred Securities, at such Holder’s registered address, at least fifteen
(15) days and not more than ninety (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 6.2.        Meetings
of Holders of the Preferred Securities.


 


(a)           No
annual meeting of Holders is required to be held. The Property Trustee,
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 twenty
five percent (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.


 


(b)           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.


 


(c)           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 lesser or greater number of affirmative votes.


 


SECTION 6.3.        Voting
Rights.


 


Holders shall be entitled to one vote for each $10,000
of Liquidation Amount represented by their Outstanding Trust Securities in
respect of any matter as to which such Holders are entitled to vote.


 


SECTION 6.4.        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 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


 


34





















 


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.


 


SECTION 6.5.        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 lesser or greater proportion thereof as
shall be required by any other provision of this Trust Agreement) shall consent
to the action in writing; provided, that notice of such action is promptly provided to
the Holders of Preferred Securities that did not consent to such action.  Any action that may be taken by the Holders
of all the Common Securities may be taken without a meeting and without prior
notice if such Holders shall consent to the action in writing.


 


SECTION 6.6.        Record
Date for Voting and Other Purposes.


 


Except as provided in Section 6.10(a), for
the purposes of determining the Holders who are entitled to notice of and to
vote at any meeting or to act 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 may from time to time fix a date, not more
than ninety (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 6.7.        Acts
of Holders.


 


(a)           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
thereof 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 conclusive in favor of the
Trustees, if made in the manner provided in this Section 6.7.


 


(b)           The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by 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 such signer’s


 


35





















 


individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of such signer’s 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 Trustee receiving the same deems
sufficient.


 


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


 


(d)           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 Trustees, the
Administrative Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.


 


(e)           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.


 


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


 


SECTION 6.8.        Inspection
of Records.


 


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


 


SECTION 6.9.        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 Trust or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the 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 Trust, the
Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Note Trustee, or
exercise 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 or waive compliance with any covenant or condition under Section 10.7
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


 


36





















 


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,  that
where a consent under the Indenture would require the consent of each holder of
Notes (or each Holder of Preferred Securities) affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each Holder of Preferred Securities. The Property Trustee 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.  In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Property Trustee shall, at
the expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Trust to be taxable
as a corporation or classified as other than a grantor trust for United States
federal income tax purposes.


 


(c)           If
any proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any material respect the powers, preferences or special rights of the Preferred
Securities, whether by way of amendment to the Trust Agreement or otherwise or (ii) the
dissolution, winding-up or termination of the Trust, other than pursuant to the
terms of this Trust Agreement, then the Holders of Outstanding Preferred
Securities as a class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities. Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such
amendment, it would cause the Trust to be taxable as a corporation or
classified as other than a grantor trust for United States federal income tax
purposes.


 


SECTION 6.10.      Acceleration
of Maturity; Rescission of Annulment; Waivers of Past Defaults.


 


(a)           For
so long as any Preferred Securities remain Outstanding, if, upon a Note Event
of Default, the Note Trustee fails or the holders of not less than twenty five
percent (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 Holders of
at least twenty five percent (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 Property Trustee, the Depositor and the Note
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 Depositor and the Note Trustee, may rescind and annul such declaration and
its consequences if:


 


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


 


(A)          all overdue installments of interest on all of the Notes;


 


(B)           any accrued Additional Interest on all of the Notes;


 


37





















 


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


 


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


 


(ii)           all
Note Events of Default, 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.


 


Upon receipt by the Property Trustee of written notice
requesting 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 ninety (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 ninety (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 6.10(a).


 


(b)           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 a Note Event of Default specified in paragraph (a) or (b) of
Section 5.1 of the Indenture, any Holder of Preferred Securities shall
have the right to institute a proceeding directly against the Depositor, 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.  Except as set forth in Section 6.10(a) and
this Section 6.10(b), 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.


 


(c)           Notwithstanding
paragraphs (a) and (b) of this Section 6.10, 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 Note Event
of Default, except any Note Event of Default arising from the failure to pay
any principal of or any premium, if any, or interest on (including any
Additional Interest) the Notes (unless such Note Event of Default has been
cured and a sum sufficient to pay all matured installments of interest and all
principal and premium, if any, on all Notes due otherwise than by acceleration
has been deposited with the Note Trustee) or a Note Event of Default in respect
of a covenant or provision that under the Indenture cannot


 


38





















 


be
modified or amended without the consent of the holder of each outstanding
Note.  Upon any such waiver, such Note
Event of Default shall cease to exist and any Note Event of Default arising
therefrom shall be deemed to have been cured for every purpose of the
Indenture; but no such waiver shall affect any subsequent Note Event of Default
or impair any right consequent thereon.


 


(d)           Notwithstanding
paragraphs (a) and (b) of this Section 6.10, 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 Event
of Default and its consequences.  Upon
such waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Trust Agreement, but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon.


 


(e)           The
Holders of a Majority in Liquidation Amount of the Preferred Securities shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee in respect of this
Trust Agreement or the Notes or exercising any trust or power conferred upon
the Property Trustee under this Trust Agreement; provided,  that,
subject to Sections 8.5 and 8.7, the Property Trustee shall have
the right to decline to follow any such direction if the Property Trustee being
advised by counsel determines that the action so directed may not lawfully be
taken, or if the Property Trustee in good faith shall, by an officer or
officers of the Property Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial
to the rights of Holders not party to such direction, and provided, further,  that
nothing in this Trust Agreement shall impair the right of the Property Trustee
to take any action deemed proper by the Property Trustee and which is not
inconsistent with such direction.


 


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 Depositor and the Holders that:


 


(a)           the Property Trustee is a national banking association, duly
organized and validly existing under the laws of the United States;


 


(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 national banking association, duly
formed and validly existing under the laws of the United States;


 


39





















 


(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;


 


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


 


(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 and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Restated
Organization Certificate or Articles of Association, as applicable, 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 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 applicable law, governmental rule or regulation of
the United States or the State of Delaware, as the case may be, governing the
banking, trust or general powers of the Property Trustee or the Delaware
Trustee 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 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 or
the State of Delaware governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be; and


 


(h)           to
the best of each of the Property Trustee’s and the Delaware Trustee’s
knowledge, there are no proceedings pending or 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
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 Trustees under this Trust Agreement.


 


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SECTION 7.2.        Representations
and Warranties of Depositor.


 


The Depositor hereby represents and warrants for the
benefit of the Holders and the Trustees that:


 


(a)           the Depositor is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation;


 


(b)           the
Depositor 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)           this
Trust Agreement has been duly authorized, executed and delivered by the
Depositor and constitutes the legal, valid and binding agreement of the
Depositor enforceable against the Depositor in accordance with its terms,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and to general principles of equity;


 


(d)           the
Securities Certificates issued at the Closing Date on behalf of the Trust have
been duly authorized and will have been duly and validly executed, issued and
delivered by the applicable 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 such date, entitled to the benefits of this Trust
Agreement;


 


(e)           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
Depositor and do not require any approval of stockholders of the Depositor and
such execution, delivery and performance will not (i) violate the articles
or certificate of incorporation or by-laws (or other organizational documents)
of the Depositor or (ii) violate any applicable law, governmental rule or
regulation governing the Depositor or any material portion of its property or
any order, judgment or decree applicable to the Depositor or any material
portion of its property;


 


(f)            neither
the authorization, execution or delivery by the Depositor of this Trust
Agreement nor the consummation of any of the transactions by the Depositor
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 governing the Depositor
or any material portion of its property; and


 


(g)           there
are no proceedings pending or, to the best of the Depositor’s knowledge,
threatened against or affecting the Depositor or any material portion of its
property 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 Trust or would question the right, power
and authority of the Depositor, as the case may be, to enter into or perform
its obligations under this Trust Agreement.


 


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ARTICLE VIII.


 


THE TRUSTEES


 


SECTION 8.1.        Number
of Trustees.


 


The number of Trustees shall be five (5); provided,
that the Property Trustee and the Delaware Trustee may be the same Person, in
which case the number of Trustees shall be four (4).  The number of Trustees may be increased or
decreased by Act of the Holder of the Common Securities subject to Sections
8.2, 8.3, and 8.4.  The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to annul, dissolve or
terminate the Trust.


 


SECTION 8.2.        Property Trustee
Required.


 


There shall at all times be a Property Trustee
hereunder with respect to the Trust Securities. The Property Trustee shall be a
corporation organized and doing business under the laws of the United States or
of any state thereof, authorized to exercise corporate trust powers, having a
combined capital and surplus of at least fifty million dollars ($50,000,000),
subject to supervision or examination by federal or state authority and having
an office within the United States.  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 8.2, 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 shall cease to be eligible in accordance with the provisions
of this Section 8.2, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VIII.


 


SECTION 8.3.        Delaware Trustee
Required.


 


(a)           If
required by the Delaware Statutory Trust Act, 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 that has its
principal place of business in the State of Delaware, otherwise meets the
requirements of applicable Delaware law and shall act through one or more
persons authorized to bind such entity. 
If at any time the Delaware Trustee shall cease to be eligible in
accordance with the provisions of this Section 8.3, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article VIII.  The Delaware Trustee shall have the same
rights, privileges and immunities as the Property Trustee.


 


(b)           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 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. 
The duties (including fiduciary duties), liabilities and obligations of
the Delaware Trustee shall be limited to (a) accepting legal


 


42





















 


process served on
the Trust in the State of Delaware and (b) the execution of any
certificates required to be filed with the Secretary of State of the State of
Delaware that the Delaware Trustee is required to execute under Section 3811
of the Delaware Statutory Trust Act and there shall be no other duties
(including fiduciary duties) or obligations, express or implied, at law or in
equity, of the Delaware Trustee.


 


SECTION 8.4.        Appointment
of Administrative Trustees.


 


(a)           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.  Each of the individuals identified as an “Administrative Trustee” in the
preamble of this Trust Agreement hereby accepts his or her appointment as such.


 


(b)           Except
where a requirement for action by a specific number of Administrative Trustees
is expressly set forth in this Trust Agreement, any act required or permitted
to be taken by, and any power of the Administrative Trustees may be exercised by,
or with the consent of, any one such Administrative Trustee.  Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.11,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.


 


SECTION 8.5.        Duties
and Responsibilities of the Trustees.


 


(a)           The
rights, immunities, duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and there shall be no other duties (including
fiduciary duties) or obligations, express or implied, at law or in equity, of
the Trustees; provided, however,
that if an Event of Default known to the Property Trustee has occurred and is
continuing, the Property Trustee shall, prior to the receipt of directions, if
any, from the Holders of at least a Majority in Liquidation Amount of the
Preferred Securities, 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, as a prudent person would exercise or use under the circumstances in
the conduct of such person’s own affairs. 
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require any of the 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 or their 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 herein expressly so provided, every provision of this
Trust Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustees shall be subject to the provisions of this
Section 8.5.  Nothing in this
Trust Agreement shall be construed to release any Administrative Trustee from
liability for his or her own negligent action, negligent failure to act; or his
or her own willful misconduct.  To the
extent that, at law or in equity, a Trustee has duties and liabilities relating
to the Trust or to the Holders, such Trustee shall not be liable to the Trust
or to any Holder for such 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


 


43





















 


liabilities
of the Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
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 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 8.5(b) does
not limit the liability of the Trustees expressly set forth elsewhere in this
Trust Agreement.


 


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


 


(i)            the Property Trustee shall not be liable for any error or
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;


 


(ii)           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 hereunder or under the
Indenture, or exercising any trust or power conferred upon the Property Trustee
under this Trust Agreement;


 


(iii)          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;


 


(iv)          the
Property Trustee shall not be liable for any interest on any money received by
it except as it may otherwise agree in writing with the Depositor; 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; and


 


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


 


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SECTION 8.6.        Notices
of Defaults and Extensions.


 


(a)           Within
ninety (90) days after the occurrence of a default actually known to the
Property Trustee, the Property Trustee shall transmit notice of such default to
the Holders, the Administrative Trustees and the Depositor, unless such default
shall have been cured or waived.  For the
purpose of this Section 8.6, the term “default” means any event that is, or after notice or lapse
of time or both would become, an Event of Default.


 


(b)           Within
five (5) Business Days after the receipt of notice of the Depositor’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 10.8, notice of such exercise to the Holders
and the Administrative Trustees, unless such exercise shall have been revoked.


 


(c)           The
Property Trustee shall not be charged with knowledge of any Event of Default
unless either (i) a Responsible Officer of the Property Trustee shall have
actual knowledge or (ii) the Property Trustee shall have received written
notice thereof from the Depositor, an Administrative Trustee or a Holder.


 


(d)           The
Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received with respect to the Notes.


 


SECTION 8.7.        Certain
Rights of Property Trustee.


 


Subject to the provisions of Section 8.5:


 


(a)           the
Property Trustee may conclusively rely and shall be protected in acting or
refraining from acting in good faith and in accordance with the terms hereof
upon any resolution, Opinion of Counsel, certificate, written representation of
a Holder or transferee, certificate of auditors or any other resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, appraisal, bond, debenture, 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 a provision 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 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
Depositor requesting the Depositor’s written instruction as to the course of
action to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided,
that if the Property Trustee does not receive such instructions of the
Depositor within ten (10) Business Days after it has delivered such notice
or such reasonably shorter period of time set forth in such notice, the
Property Trustee may, but shall be under no duty to, take such action, or
refrain from taking such


 


45





















 


action, as the Property Trustee 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 negligence, bad faith or willful
misconduct;


 


(c)           any direction or act of the Depositor contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate
unless otherwise expressly provided herein;


 


(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 re-recording,
re-filing or re-registration thereof;


 


(f)            the
Property Trustee may consult with counsel (which counsel may be counsel to the
Property Trustee, the Depositor 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 pursuant to this Trust Agreement, unless such Holders shall have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses (including reasonable attorneys’ fees and expenses) and
liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Property
Trustee; provided, however, that
nothing contained in this Section 8.7(g) shall be construed to
relieve the Property Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers in it vested by this Trust
Agreement; provided, further, that nothing contained in this Section 8.7(g) shall
prevent the Property Trustee from exercising its rights under Section 8.11
hereof;


 


(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, direction, consent, order, approval, bond, debenture,
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, and, if the Property Trustee shall determine to make such inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Depositor, personally or by agent or attorney;


 


(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, attorneys,


 


46





















 


custodians or nominees and the Property Trustee shall
not be responsible for any negligence or misconduct on the part of any such
agent, attorney, custodian or nominee appointed with due care by it hereunder;


 


(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 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 this Trust Agreement 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;


 


(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;


 


(l)            without
prejudice to any other rights available to the Property Trustee under
applicable law, when the Property Trustee incurs expenses or renders services
in connection with a Bankruptcy Event, such expenses (including legal fees and
expenses of its agents and counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law or
law relating to creditors rights generally; and


 


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


 


No provision of this Trust Agreement shall be deemed
to impose any duty or obligation on any 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.


 


SECTION 8.8.        Delegation
of Power.


 


Any Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 its, his or her power for the purpose of executing any
documents contemplated in Section 2.5.  The Trustees shall have power to delegate
from time to time to to the Depositor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Trustees or otherwise as the Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of this Trust Agreement.


 


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SECTION 8.9.        May Hold
Securities.


 


Any Trustee or any other agent of any Trustee or the
Trust, in its individual or any other capacity, may become the owner or pledgee
of Trust Securities and except as provided in the definition of the term “Outstanding” in Article I,
may otherwise deal with the Trust with the same rights it would have if it were
not an Trustee or such other agent.


 


SECTION 8.10.      Compensation;
Reimbursement; Indemnity.


 


The Depositor agrees:


 


(a)           to
pay to the Trustees from time to time such reasonable compensation for all
services rendered by them hereunder as may be agreed by the Depositor and the
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)           to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the 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 gross negligence, bad
faith or willful misconduct; and


 


(c)           to
the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any Trustee or any
Affiliate of any Trustee and (iv) any employee or agent of the Trust
(referred to herein as an “Indemnified
Person”) from and against any loss, damage, liability, tax (other
than income, franchise or other taxes imposed on amounts paid pursuant to Section 8.10(a) or
(b) hereof), penalty, expense or claim of any kind or nature
whatsoever incurred without negligence, bad faith or willful misconduct on its
part, arising out of or in connection with the acceptance or administration of
the Trust hereunder, including the advancement of funds to cover the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder.


 


The Trust shall have no payment, reimbursement or
indemnity obligations to the Trustees under this Section 8.10.  The provisions of this Section 8.10
shall survive the termination of this Trust Agreement and the earlier removal
or resignation of any Trustee.


 


No Trustee may claim any Lien on any Trust Property
whether before or after termination of the Trust as a result of any amount due
pursuant to this Section 8.10.


 


To the fullest extent permitted by law, in no event
shall the Property Trustee and the Delaware Trustee be liable for any indirect,
special, punitive or consequential loss or damage of any kind whatsoever,
including, but not limited to, lost profits, even if the Trustee has been
advised of the likelihood of such loss or damage and regardless of the form of
action.


 


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


 


SECTION 8.11.      Resignation
and Removal; Appointment of Successor.


 


(a)           No
resignation or removal of any Trustee and no appointment of a successor Trustee
pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 8.12.


 


(b)           A
Trustee may resign at any time by giving written notice thereof to the
Depositor and, in the case of the Property Trustee and the Delaware Trustee, to
the Holders.


 


(c)           Unless
an Event of Default shall have occurred and be continuing, the Property Trustee
or the Delaware Trustee, or both of them, may be removed (with or without
cause) at any time by Act of the Holder of Common Securities.  If an Event of Default shall have occurred
and be continuing, the Property Trustee or the Delaware Trustee, or both of
them, may be removed (with or without cause) at such time by Act of the Holders
of at least a Majority in Liquidation Amount of the Preferred Securities,
delivered to the removed Trustee (in its individual capacity and on behalf of
the Trust).  An Administrative Trustee
may be removed (with or without cause) only by Act of the Holder of the Common
Securities at any time.


 


(d)           If any Trustee shall resign, be removed or
become incapable of acting as Trustee, or if a vacancy shall occur in the
office of any Trustee for any reason, at a time when no Event of Default shall
have occurred and be continuing, the Holder of the Common Securities, by Act of
the Holder of the Common Securities, shall promptly appoint a successor Trustee
or Trustees, and such successor Trustee and the retiring Trustee shall comply
with the applicable requirements of Section 8.12.  If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as
the Property Trustee or the Delaware Trustee, as the case may be, at a time
when an Event of Default shall have occurred and be continuing, the Holders of
the Preferred Securities, by Act of the Holders of a Majority in Liquidation
Amount of the Preferred Securities, shall promptly appoint a successor Property
Trustee or Delaware Trustee, and such successor Property Trustee or Delaware
Trustee and the retiring Property Trustee or Delaware Trustee shall comply with
the applicable requirements of Section 8.12.  If an Administrative Trustee shall resign, be
removed or become incapable of acting as Administrative Trustee, at a time when
an Event of Default shall have occurred and be continuing, the Holder of the
Common Securities by Act of the Holder of Common Securities shall promptly
appoint a successor Administrative Trustee and such successor Administrative
Trustee and the retiring Administrative Trustee shall comply with the applicable
requirements of Section 8.12. 
If no successor Trustee shall have been so appointed by the Holder of
the Common Securities or Holders of the Preferred Securities, as the case may
be, and accepted appointment in the manner required by Section 8.12
within thirty (30) days after the giving of a notice of resignation by a
Trustee, the removal of a Trustee, or a Trustee becoming incapable of acting as
such Trustee, any Holder who has been a Holder of Preferred Securities for at
least six


 


49





















 


(6) months may, on behalf of himself and all others similarly
situated, and any resigning Trustee may, in each case, at the expense of the
Depositor, petition any court of competent jurisdiction for the appointment of
a successor Trustee.


 


(e)           The
Depositor shall give notice of each resignation and each removal of the
Property Trustee or the Delaware Trustee and each appointment of a successor
Property Trustee or Delaware Trustee to all Holders in the manner provided in Section 10.8.  Each notice shall include the name of the
successor Property Trustee or Delaware Trustee and the address of its Corporate
Trust Office if it is the Property Trustee.


 


(f)            Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Holder of Common Securities, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (i) the unanimous act of the remaining Administrative
Trustees if there are at least two of them or (ii) otherwise by the Holder
of the Common Securities (with the successor in each case being a Person who
satisfies the eligibility requirement for Administrative Trustees or Delaware
Trustee, as the case may be, set forth in Sections 8.3 and 8.4).


 


(g)           Upon
the appointment of a successor Delaware Trustee, such successor Delaware
Trustee shall file a Certificate of Amendment to the Certificate of Trust in
accordance with Section 3810 of the Delaware Statutory Trust Act.


 


SECTION 8.12.      Acceptance
of Appointment by Successor.


 


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


 


(b)           Upon
request of any such successor Trustee, the Trust (or the retiring Trustee if
requested by the Depositor) shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.


 


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


 


SECTION 8.13.      Merger,
Conversion, Consolidation or Succession to Business.


 


Any Person into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person succeeding
to


 


50





















 


all or substantially all
the corporate trust business of such Trustee, shall be the successor of such
Trustee hereunder, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided, that such Person shall
be otherwise qualified and eligible under this Article VIII.


 


SECTION 8.14.      Not Responsible for
Recitals Issuance of Securities and Representations.


 


The recitals contained herein and in the Securities Certificates shall
be taken as the statements of the Trust and the Depositor, and the Trustees do
not assume any responsibility for their correctness.  The Trustees make no representations as to
the title to, or value or condition of, the property of the Trust or any part
thereof, nor as to the validity or sufficiency of this
Trust Agreement, the Notes or the Trust Securities.  The Trustees shall not be accountable for the
use or application by the Depositor of the proceeds of the Notes.  It is expressly understood and agreed by the
parties hereto that insofar as any document, agreement or certificate is
executed on behalf of the Trust by any Trustee (i) such document,
agreement or certificate is executed and delivered by such Trustee, not in its
individual capacity but solely as Trustee under this Trust Agreement in the
exercise of the powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements made on the part of the
Trust is made and intended not as representations, warranties, covenants,
undertakings and agreements by any Trustee in its individual capacity but is
made and intended for the purpose of binding only the Trust and (iii) under
no circumstances shall any Trustee in its individual capacity be personally
liable for the payment of any indebtedness or expenses of the Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Trust Agreement or any
other document, agreement or certificate.


 


SECTION 8.15.      Property Trustee May File
Proofs of Claim.


 


(a)           In
case of any Bankruptcy Event (or event that with the passage of time would
become a Bankruptcy Event) relative to the Trust or any other obligor upon the
Trust Securities or the property of the 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 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:


 


(i)            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


 


(ii)           to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;


 


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and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such proceeding is
hereby authorized by each Holder to make such payments to the Property Trustee
and, in the event the Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee first 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.


 


(b)           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 8.16.      Reports
to the Property Trustee.


 


(a)           The
Depositor and the Administrative Trustees shall deliver to the Property
Trustee, not later than forty five (45) days after the end of each of the first
three fiscal quarters of the Depositor and not later than ninety (90) days
after the end of each fiscal year of the Trust ending after the date of this
Trust Agreement, an Officers’ Certificate covering the preceding fiscal year,
stating whether or not to the knowledge of the signers thereof the Depositor
and the Trust are in default in the performance or observance of any of the
terms, provisions and conditions of this Trust Agreement (without regard to any
period of grace or requirement of notice provided hereunder) and, if the
Depositor or the Trust shall be in default, specifying all such defaults and
the nature and status thereof of which they have knowledge.


 


(b)           The
Depositor shall furnish (i) to the Property Trustee; (ii) Cohen Bros. &
Company, 450 Park, 23rd Floor, New York, NY 10022 or
such other address as designated by Cohen Bros. & Company); and (iii) any
Owner of the Preferred Securities reasonably identified to the Depositor and
the Trust (which identification may be made either by such Owner or by Cohen
Bros. & Company) a duly completed and executed certificate
substantively and substantially in the form attached hereto as Exhibit G,
including the financial statements referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the Depositor not
later than forty five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Depositor and not later than ninety (90)
days after the end of each fiscal year of the Depositor.


 


The Property Trustee shall obtain all reports,
certificate and information, which it is entitled to obtain under each of the
Operative Documents.


 


ARTICLE IX.


 


TERMINATION, LIQUIDATION AND MERGER


 


SECTION 9.1.        Dissolution Upon Expiration Date.


 


Unless earlier dissolved, the Trust shall
automatically dissolve on June 30, 2040 (the “Expiration Date”), and the Trust Property shall be
liquidated in accordance with Section 9.4.


 


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SECTION 9.2.        Early
Termination.


 


The first to occur of any of the following events is
an “Early Termination Event”, upon
the occurrence of which the Trust shall be dissolved:


 


(a)           the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation of, the Depositor, in its capacity as the Holder of the Common
Securities, unless the Depositor shall have transferred the Common Securities
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 the Holder of the Common
Securities at any time to dissolve the Trust and, after satisfaction of any
liabilities of the Trust as required by applicable law, to distribute the Notes
to Holders in exchange for the Preferred Securities (which direction is
optional and wholly within the discretion of the Holder of the Common
Securities);


 


(c)           the redemption of all of the Preferred Securities in
connection with the payment at maturity or redemption of all the Notes; and


 


(d)           the entry of an order for dissolution of the Trust by a
court of competent jurisdiction.


 


SECTION 9.3.        Termination.


 


The respective obligations and responsibilities of the
Trustees and the Trust 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 Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the satisfaction of
any expenses owed by the 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 Trust or the Holders.


 


SECTION 9.4.        Liquidation.


 


(a)           If
an Early Termination Event specified in Section 9.2(a), (b) or
(d) occurs or upon the Expiration Date, the Trust shall be
liquidated by the Property Trustee as expeditiously as the Property Trustee
shall determine to be possible by distributing, after satisfaction of
liabilities to creditors of the 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 not less than thirty (30)
nor more than sixty (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 Liquidation Date;


 


(ii)           state
that from and after the Liquidation Date, the Trust Securities will no longer
be deemed to be Outstanding and (subject to Section 9.4(d)) any
Securities


 


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Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Notes; and


 


(iii)          provide such information with respect to the mechanics by
which Holders may exchange Securities Certificates for Notes, or if Section 9.4(d) applies,
receive a Liquidation Distribution, as the Property Trustee shall deem
appropriate.


 


(b)           Except
where Section 9.2(c) or 9.4(d) applies, in order
to effect the liquidation of the 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 not be more than forty five (45) days
prior to the Liquidation Date nor prior to the date on which notice of such
liquidation is given to the Holders) and establish such procedures as it shall
deem appropriate to effect the distribution of Notes in exchange for the
Outstanding Securities Certificates.


 


(c)           Except
where Section 9.2(c) or 9.4(d) 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 Securities Certificates, upon surrender of such
Certificates to the exchange agent for exchange, (iii) the Depositor shall
use its best efforts to have the Notes listed on the New York Stock Exchange or
on such other exchange, interdealer quotation system or self-regulatory
organization on which the Preferred Securities are then listed, if any, (iv) 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 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
Securities Certificates with respect to such Notes) and (v) all rights of
Holders holding Trust Securities will cease, except the right of such Holders
to receive Notes upon surrender of Securities Certificates.


 


(d)           Notwithstanding
the other provisions of this Section 9.4, if distribution of the
Notes in the manner provided herein is determined by the Property Trustee not
to be permitted or practical, the Trust Property shall be liquidated, and the
Trust shall be wound up by the Property Trustee in such manner as the Property
Trustee determines.  In such event,
Holders will be entitled to receive out of the assets of the Trust available
for distribution to Holders, after satisfaction of liabilities to creditors of
the Trust as provided 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 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 Trust on the Trust
Securities shall be paid on a pro rata basis (based upon Liquidation Amounts). The Holder
of the Common Securities will be entitled to receive Liquidation Distributions
upon any such winding up pro rata (based upon Liquidation Amounts) with Holders of
all Trust Securities, except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.


 


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SECTION 9.5.        Mergers,
Consolidations, Amalgamations or Replacements of Trust.


 


The 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 Person except pursuant to this Article IX.
At the request of the Holders of the Common Securities, without the consent of
the Holders of the Preferred Securities, the 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:


 


(a)           such
successor entity either (i) expressly assumes all of the obligations of
the Trust under this Trust Agreement with respect to the Preferred Securities
or (ii) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (such other
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;


 


(b)           a trustee of such successor entity possessing substantially
the same powers and duties as the Property Trustee is appointed to hold the
Notes;


 


(c)           if
the Preferred Securities or the Notes are rated, such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities or the Notes (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization that
then assigns a rating to the Preferred Securities or the Notes;


 


(d)           the
Preferred Securities are listed, or any Successor Securities will be listed
upon notice of issuance, on any national securities exchange or interdealer
quotation system on which the Preferred Securities are then listed, if any;


 


(e)           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;


 


(f)            such successor entity has a purpose substantially identical
to that of the Trust;


 


(g)           prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Depositor has received an Opinion of Counsel to the effect that (i) 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; (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an “investment company” under
the Investment Company Act and (iii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer


 


55





















 


or
lease, the Trust (or the successor entity) will continue to be classified as a
grantor trust for U.S. federal income tax purposes; and


 


(h)           the Depositor or its permitted transferee owns all of the
common securities of such successor entity.


 


Notwithstanding the foregoing, the 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 Person or permit any other entity to consolidate, amalgamate, merge with
or into, or replace, the Trust if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes or cause the Notes
to be treated as other than indebtedness of the Depositor for United States
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, bankruptcy, termination, dissolution or incapacity of any Person having
an interest, beneficial or otherwise, in Trust Securities shall not operate to
terminate this Trust Agreement, nor annul, dissolve or terminate the Trust nor
entitle the legal representatives 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.


 


SECTION 10.2.      Agreed
Tax Treatment of Trust and Trust Securities.


 


The parties hereto and, by its acceptance or
acquisition of a Trust Security or a beneficial interest therein, the Holder
of, and any Person that acquires a beneficial interest in, such Trust Security
intend and agree to treat the Trust as a grantor trust for United States
federal, state and local tax purposes, and to treat the Trust Securities
(including all payments and proceeds with respect to such Trust Securities) as
undivided beneficial ownership interests in the Trust Property (and payments
and proceeds therefrom, respectively) for United States federal, state and
local tax purposes and to treat the Notes as indebtedness of the Depositor for
United States federal, state and local tax purposes.  The provisions of this Trust Agreement shall
be interpreted to further this intention and agreement of the parties.


 


SECTION 10.3.      Amendment.


 


(a)           This
Trust Agreement may be amended from time to time by the Property Trustee, the
Administrative Trustees and the Holder of all the Common Securities, without
the consent of any Holder of the Preferred Securities, (i) to cure any
ambiguity, correct or supplement any provision herein that may be defective or
inconsistent with any other provision


 


56





















 


herein, or to make
or amend 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 Trust will neither be taxable as a corporation nor be
classified as other than a grantor trust for United States federal income tax
purposes at all times that any Trust Securities are Outstanding or to ensure
that the Notes are treated as indebtedness of the Depositor for United States
federal income tax purposes, or to ensure that the Trust will not be required
to register as an “investment company” under the Investment Company Act or (iii) to
add to the covenants, restrictions or obligations of the Depositor; provided,
that in the case of clauses (i), (ii) or (iii), such action shall not
adversely affect in any material respect the interests of any Holder.


 


(b)           Except
as provided in Section 10.3(c), any provision of this Trust
Agreement may be amended by the Property Trustee, the Administrative Trustees
and the Holder of all of the Common Securities and with (i) the consent of
Holders of at least a Majority in Liquidation Amount of the Preferred
Securities and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not cause the Trust to be
taxable as a corporation or classified as other than a grantor trust for United
States federal income tax purposes or affect the treatment of the Notes as
indebtedness of the Depositor for United States federal income tax purposes or
affect the Trust’s exemption from status (or from any requirement to register)
as an “investment company” under the Investment Company Act.


 


(c)           Notwithstanding
any other provision of this Trust Agreement, without the consent of each
Holder, this Trust Agreement may not be amended to (i) change the accrual
rate, amount, currency or timing of any Distribution on or the redemption price
of the Trust Securities or otherwise adversely affect the amount of any
Distribution or other payment required to be made in respect of the Trust
Securities as of a specified date, (ii) restrict or impair the right of a
Holder to institute suit for the enforcement of any such payment on or after
such date, (iii) reduce the percentage of aggregate Liquidation Amount of
Outstanding Preferred Securities, the consent of whose Holders is required for
any such amendment, or the consent of whose Holders is required for any waiver
of compliance with any provision of this Trust Agreement or of defaults
hereunder and their consequences provided for in this Trust Agreement; (iv) impair
or adversely affect the rights and interests of the Holders in the Trust
Property, or permit the creation of any Lien on any portion of the Trust Property;
or (v) modify the definition of “Outstanding,” this Section 10.3(c),
Sections 4.1, 4.2, 4.3, 6.10(e) or Article IX.


 


(d)           Notwithstanding
any other provision of this Trust Agreement, no Trustee shall enter into or
consent to any amendment to this Trust Agreement that would cause the Trust to
be taxable as a corporation or to be classified as other than a grantor trust
for United States federal income tax purposes or that would cause the Notes to
fail or cease to be treated as indebtedness of the Depositor for United States
federal income tax purposes or that would cause the Trust to fail or cease to
qualify for the exemption from status (or from any requirement to register) as
an “investment company” under the Investment Company Act.


 


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(e)           If
any amendment to this Trust Agreement is made, the Administrative Trustees or
the Property Trustee shall promptly provide to the Depositor and the Note
Trustee a copy of such amendment.


 


(f)            No
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 Trustees 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 and all conditions precedent herein provided for relating to such
action have been met.


 


(g)           No
amendment or modification to this Trust Agreement that adversely affects in any
material respect the rights, duties, liabilities, indemnities or immunities of
the Delaware Trustee hereunder shall be permitted without the prior written
consent of the Delaware Trustee.


 


SECTION 10.4.      Separability.


 


If any provision in this Trust Agreement or in the
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, and there shall be deemed substituted
for the provision at issue a valid, legal and enforceable provision as similar
as possible to the provision at issue.


 


SECTION 10.5.      Governing
Law.


 


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


 


SECTION 10.6.      Successors.


 


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


 


SECTION 10.7.      Headings.


 


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


 


SECTION 10.8.      Reports,
Notices and Demands.


 


(a)           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 or the


 


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Depositor may be
given or served in writing delivered in person, or by reputable, overnight
courier, by telecopy or by deposit thereof, first-class postage prepaid, in the
United States mail, 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 all the Common
Securities or the Depositor, to GKK
Capital LP, 420 Lexington Avenue, New York, NY 10170, Attention:  Gregory F. Hughes, with a copy to Clifford
Chance US LLP, 31 West 52nd Street, New York, NY 10019,
Attention:  Larry P. Medvinsky,
or to such other address as may be specified in a written notice by the Holder
of all the Common Securities or the Depositor, as the case may be, to the
Property Trustee. Such report, notice, demand or other communication to or upon
a Holder or the Depositor shall be deemed to have been given when received in
person, within one (1) Business Day following delivery by overnight
courier, when telecopied with receipt confirmed, or within three (3) Business
Days following delivery by mail, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.


 


(b)           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
Property Trustee, the Delaware Trustee, the Administrative Trustees or the
Trust shall be given in writing by deposit thereof, first-class postage
prepaid, in the U.S. mail, personal delivery or facsimile transmission,
addressed to such Person as follows: (i) with respect to the Property
Trustee to JPMorgan Chase Bank, National Association, 600 Travis, 50th
Floor, Houston, Texas 77002, Attention: Institutional Trust Services—Gramercy Capital Trust I, facsimile
no. (713) 216-2101, (ii) with respect to the Delaware Trustee, to Chase
Bank USA, National Association, c/o JPMorgan Chase Bank, National Association,
500 Stanton Christiana Road, Building 4 (3rd Floor), Newark,
Delaware 19713, Attention: Institutional Trust Services—Gramercy Capital Trust I, facsimile no. (302) 552-6280; (iii) with
respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked “Attention: Administrative Trustees of Gramercy Capital
Trust I”, and (iv) with respect to the Trust, to
its principal executive office specified in Section 2.2, with a
copy to the Property Trustee. Such notice, demand or other communication to or
upon the 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 Trust, the Property Trustee or the Administrative Trustees.


 


SECTION 10.9.      Agreement
Not to Petition.


 


Each of the Trustees and the Depositor agree for the
benefit of the Holders that, until at least one year and one day after the
Trust has been terminated in accordance with Article IX, they shall
not file, or join in the filing of, a petition against the Trust under any Bankruptcy
Law or otherwise join in the commencement of any proceeding against the Trust
under any Bankruptcy Law. If the Depositor takes action in violation of this Section 10.9,
the Property Trustee agrees, for the benefit of Holders, that at the expense of
the Depositor, it shall file an answer with the applicable bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor 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
Property Trustee or the Trust may assert.


 


59





















 


SECTION 10.10.    Counterparts.  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.


 


[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]


 


60





















 


IN WITNESS WHEREOF, the parties hereto have executed
this Amended and Restated Trust Agreement as of the day and year first above
written.


 


	
   

  	
  GKK CAPITAL LP, as
  Depositor

  
	
   

  	
  By:  GRAMERCY CAPITAL CORP., its general
  partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Marc
  Holliday

  
	
   

  	
   

  	
  Title: 
  President & Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMORGAN
  CHASE BANK, NATIONAL

  ASSOCIATION, in its individual as Property

  Trustee

  	
  CHASE BANK USA, NATIONAL ASSOCIATION, as

  Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Name:

  
	
   

  	
  Title:

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Administrative Trustee

  	
  Administrative Trustee

  
	
  Name:  Marc
  Holliday

  	
  Name:  Gregory F. Hughes

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Administrative Trustee

  	
   

  
	
  Name:  Robert
  R. Foley

  	
   

  
								



 


1





















 


Exhibit A


 


CERTIFICATE OF TRUST




OF




GRAMERCY CAPITAL TRUST I


 


This Certificate of Trust
of Gramercy Capital
Trust I (the “Trust”) is being
duly executed and filed on behalf of the Trust by the undersigned, as trustees,
to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C. §3801 et
seq.) (the  “Act”).


 


1.             Name. 
The name of the statutory trust formed by this Certificate of Trust
is:  Gramercy Capital Trust I.


 


2.             Delaware Trustee.  The name and business address of the trustee
of the Trust with its principal place of business in the State of Delaware are
Chase Bank USA, National Association c/o JPMorgan Chase Bank, National
Association, 500 Stanton Christiana Road, Building 4 (3rd Floor),
Newark, Delaware 19713, Attention: Institutional Trust Services.


 


3.             Effective Date.  This Certificate of Trust shall be effective
upon its filing with the Secretary of State of the State of Delaware.


 


IN WITNESS WHEREOF, the
undersigned have duly executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act.


 


	
   

  	
  CHASE BANK USA, NATIONAL ASSOCIATION, not
  in

  its individual capacity, but solely as Delaware

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


A-1





















 


Exhibit B


 


[FORM OF COMMON SECURITIES CERTIFICATE]


 


THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION.  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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  C-1

  	
   

  	
  1,550

  	
   

  



 


Certificate Evidencing Common Securities


 


of


 


GRAMERCY CAPITAL TRUST I


 


Floating Rate Common Securities


 


(liquidation amount $1,000
per Common Security)


 


Gramercy Capital Trust I, a
statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that GKK Capital LP, a Delaware limited partnership (the “Holder”) is the registered owner of 1,550 common securities of the Trust representing undivided
common beneficial interests in the assets of the Trust and designated the Gramercy Capital Trust I 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 Trust, dated as of May 20, 2005 as the
same may be amended from time to time (the “Trust
Agreement”), among GKK
Capital LP, as
Depositor, JPMorgan Chase Bank, National Association, as Property Trustee,
Chase Bank USA, National Association, as Delaware Trustee, the Administrative
Trustees named therein and the Holders, from time to time, of Trust Securities.
The Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Trust at its principal place of business or
registered office.


 


B-1





















 


Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder.


 


This Common Securities
Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware.


 


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


 


IN WITNESS WHEREOF,
one of the Administrative Trustees of the Trust has executed on behalf of the
Trust this certificate this       day of                        ,
200     .


 


 


	
   

  	
  GRAMERCY CAPITAL TRUST I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Marc
  Holliday

  	
   

  
	
   

  	
   

  	
  Administrative
  Trustee

  	
   

  



 


B-2





















 


Exhibit C


 


[FORM OF PREFERRED SECURITIES CERTIFICATE]


 


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


 


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


 


THE PREFERRED SECURITIES
REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED
SECURITIES OR ANY INTEREST THEREIN MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM.  EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


 


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


 


THE PREFERRED SECURITIES
WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE
LIQUIDATION AMOUNT OF NOT LESS THAN


 


C-1





















 


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


 


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


 


C-2





















 


	
  Certificate Number

  	
   

  	
  Aggregate Liquidation Amount

  
	
   

  	
   

  	
  Preferred Securities

  



 


Certificate Evidencing Preferred Securities


 


of


 


GRAMERCY CAPITAL TRUST I


 


Floating Rate Preferred Securities

(liquidation amount $1,000 per Preferred Security)


 


Gramercy Capital Trust I, a
statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that                        ,
a                 (the
“Holder”) is the registered owner
of [                ]
Preferred Securities [if the Preferred
Security is a Global Security, then insert – or such other number of
Preferred Securities represented hereby as may be set forth in the records of
the Securities Registrar hereinafter referred to in accordance with the Trust
Agreement (as defined below)] of the Trust representing an undivided preferred
beneficial interest in the assets of the Trust and designated the Gramercy Capital Trust I Floating Rate Preferred
Securities, (liquidation amount $1,000 per Preferred Security) (the “Preferred Securities”). Subject to the
terms of the Trust Agreement (as defined below), the Preferred Securities are
transferable on the books and records of the 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 5.7 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 Trust, dated
as of May 20, 2005, as the same may be amended from time to time (the “Trust Agreement”), among GKK Capital LP,
as Depositor, JPMorgan Chase Bank, National Association, as Property Trustee,
Chase Bank USA, National Association, as Delaware Trustee, the Administrative
Trustees named therein and the Holders, from time to time, of Trust
Securities.  The Trust will furnish a
copy of the Trust Agreement to the Holder without charge upon written request
to the Property Trustee at its Corporate Trust Office.


 


Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder.


 


This Preferred Securities
Certificate shall be governed by and construed in accordance with the laws of
the State of Delaware.


 


C-3





















 


All capitalized terms
used but not defined in this Preferred Securities Certificate are used with the
meanings specified in the Trust Agreement, including the Schedules and Exhibits
thereto.


 


IN WITNESS WHEREOF,
one of the Administrative Trustees of the Trust has executed on behalf of the
Trust this certificate this      day of                 ,
2005.


 


	
   

  	
  GRAMERCY CAPITAL TRUST I

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Administrative
  Trustee

  	
   

  



 


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


 


Dated:


	
   

  	
  JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,

  not in its individual capacity, but solely as Property

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized signatory

  



 


C-4





















 


[FORM OF REVERSE OF SECURITY]


 


The Trust promises to pay Distributions from May 20,
2005, or from the most recent Distribution Date to which Distributions have
been paid or duly provided for, quarterly
(subject to deferral as set forth herein) in arrears on March 30, June 30,
September 30 and December 30 of
each year, commencing on September 30,
2005, at a fixed rate equal to 7.57% per annum through the interest payment date
in June 2015 and thereafter at a variable rate equal to LIBOR plus 3.00% per annum of the Liquidation Amount of the Preferred
Securities represented by this Preferred Securities Certificate, together with
any Additional Interest Amounts, in respect to such period.


 


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


 


In the event (and to the extent) that the Depositor
exercises its right under the Indenture to defer the payment of interest on the
Notes, Distributions on the Preferred Securities shall be deferred.


 


Under the Indenture, so long as no Note Event of
Default has occurred and is continuing and upon thirty (30) days’ prior written
notice, the Depositor shall have the right, at any time and from time to time
during the term of the Notes, to defer the payment of interest on the Notes for
a period of up to four (4) consecutive
quarterly interest
payment periods (each such extended interest payment period, an “Extension
Period”), during which Extension Period no interest shall be due and payable
(except any Additional Tax Sums that may be due and payable).  No interest on the Notes shall be due and
payable during an Extension Period, except at the end thereof.  If Distributions are deferred, the deferred
Distributions shall be paid on the date that the related Extension Period terminates
to Holders (as defined in the Trust Agreement) of the Trust Securities as they
appear on the books and records of the Trust on the record date immediately
preceding such termination date.


 


Distributions on the Securities must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds available for the payment of such
Distributions in the Payment Account of the Trust.  The Trust’s funds available for Distribution
to the Holders of the Preferred Securities will be limited to payments received
from the Depositor.


 


During any Event of Default or any such Extension
Period, the Depositor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Depositor’s capital stock or (ii) make any
payment of principal of or any interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Depositor that rank pari passu
in all respects with or junior in interest to the Notes (other than (a) repurchases,
redemptions or other acquisitions of shares of capital stock of the Depositor
in connection with (1) any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more employees,
officers, directors or consultants, (2) a dividend reinvestment or
stockholder stock purchase plan or (3) the issuance of


 


C-5





















 


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


 


On each Note Redemption Date, on the stated maturity
(or any date of principal repayment upon early maturity) of the Notes and on
each other date on (or in respect of) which any principal on the Notes is
repaid, the Trust will be required to redeem a Like Amount of Trust Securities
at the Redemption Price.  Under the Indenture,
the Notes may be redeemed by the Depositor on any Interest Payment Date, at the
Depositor’s option, on or after June 30, 2010 in whole or in part from
time to time at the Optional Note Redemption Price of the principal amount
thereof or the redeemed portion thereof, as applicable, together, in the case
of any such redemption, with accrued interest, including any Additional
Interest, to but excluding the date fixed for redemption.  The Notes may also be redeemed by the
Depositor, at its option, at any time, in whole but not in part, upon the
occurrence of an Investment Company Event or a Tax Event at the Special Note
Redemption Price; provided, that
such Investment Company Event or a Tax Event is continuing on the Redemption
Date.


 


The Trust Securities redeemed on each Redemption Date
shall be redeemed at the Redemption Price with the proceeds from the
contemporaneous redemption or payment at maturity of Notes. Redemptions of the
Trust Securities (or portion thereof) shall be made and the Redemption Price
shall be payable on each Redemption Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the payment of such
Redemption Price.


 


Payments of Distributions (including any Additional
Interest Amounts), the Redemption Price, Liquidation Amount or any other
amounts in respect of the Preferred Securities shall be made by wire transfer
at such place and to such account at a banking institution in the United States
as may be designated in writing at least ten (10) Business Days prior to
the date for payment by the Person entitled thereto unless proper written
transfer instructions have not been received by the relevant record date, in
which case such payments shall be made by check mailed to the address of such
Person as such address shall appear in the Security Register.  If any Preferred Securities are held by a
Depositary, such Distributions shall be made to the Depositary in immediately
available funds.


 


The indebtedness evidenced by the Notes is, to the
extent provided in the Indenture, subordinate and junior in right of payment to
the prior payment in full of all Senior Debt (as


 


C-6





















 


defined
in the Indenture), and this Security is issued subject to the provisions of the
Indenture with respect thereto.


 


C-7





















 


ASSIGNMENT


 


FOR VALUE RECEIVED,
the undersigned assigns and transfers this Preferred Securities Certificate 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 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-8





















 


Exhibit D


 


Junior
Subordinated Indenture


 


See Tab#4


 


D-1





















 


Exhibit E


 


Form of Transferee Certificate

to be Executed by Transferees


 


                    ,
[     ]


 


JPMorgan Chase Bank, National
Association
600 Travis, 50th Floor

Houston, Texas 77002

Attention:  Institutional Trust Services


 


 


GKK Capital LP

Gramercy Capital Trust I

420 Lexington Avenue


 


New York, NY
10170


 


Re:          Purchase
of $                   
stated liquidation amount of Floating Rate Preferred Securities (the “Preferred
Securities”) of Gramercy Capital Trust I


 


Ladies and
Gentlemen:


 


In connection with our purchase of the Preferred Securities we confirm
that:


 


1.             We understand that
the Floating Rate Preferred Securities (the “Preferred Securities”) of Gramercy
Capital Trust I (the “Trust”) of GKK
Capital LP (the “Company”) executed in connection therewith)
and the Floating Rate Junior Subordinated Notes due 2035 of the Company (the “Subordinated
Notes”) (the entire amount of the Trust’s outstanding Preferred Securities and
the Subordinated Notes together being referred to herein as the “Offered Securities”),
have not been registered under the Securities Act of 1933, as amended (the “Securities
Act”), and may not be offered or sold except as permitted in the following
sentence. We agree on our own behalf and on behalf of any investor account for
which we are purchasing the Offered Securities that, if we decide to offer,
sell or otherwise transfer any such Offered Securities, (i) such offer,
sale or transfer will be made only (a) to the Trust, (b) to a person
we reasonably believe is a “qualified purchaser” (a “QP”) (as defined in Section 2(a)(51)
of the Investment Company Act of 1940, as amended). We understand that the
certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.


 


2.             We are a “qualified
purchaser” within the meaning of section 2(a)(51) of the Investment
Company Act of 1940, as amended, and are purchasing for our own account or for
the account of such a “qualified purchaser,” and we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Offered Securities, and we and any
account for which we are acting are each able to bear the economic risks of our
or its investment.


 


E-1





















 


3.             We are acquiring the
Offered Securities purchased by us for our own account (or for one or more
accounts as to each of which we exercise sole investment discretion and have
authority to make, and do make, the statements contained in this letter) and
not with a view to any distribution of the Offered Securities, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.


 


4.             In the event that we
purchase any Preferred Securities or any Subordinated Notes, we will acquire
such Preferred Securities having an aggregate stated liquidation amount of not
less than $100,000 or such Subordinated Notes having an aggregate principal
amount not less than $100,000, for our own account and for each separate
account for which we are acting.


 


5.             We acknowledge that
we are not a fiduciary of (i) an employee benefit, individual retirement
account or other plan or arrangement subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), or Section 4975
of the Internal Revenue Code of 1986, as amended (the “Code”) (each a “Plan”);
or (ii) an entity whose underlying assets include “plan assets” by reason
of any Plan’s investment in the entity, and are not purchasing any of the
Offered Securities on behalf of or with “plan assets” by reason of any Plan’s
investment in the entity.


 


6.             We acknowledge that
the Trust and the Company and others will rely upon the truth and accuracy of
the foregoing acknowledgments, representations, warranties and agreements and
agree that if any of the acknowledgments, representations, warranties and
agreements deemed to have been made by our purchase of any of the Offered
Securities are no longer accurate, we shall promptly notify the Company.  If we are acquiring any Offered Securities as
a fiduciary or agent for one or more investor accounts, we represent that we
have sole discretion with respect to each such investor account and that we
have full power to make the foregoing acknowledgments, representations and
agreement on behalf of each such investor account.


 


 


	
   

  	
  (Name of Purchaser)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Date:

  	
   

  
				



 


 


Upon transfer, the Preferred Securities (having a
stated liquidation amount of
$                      )
would be registered in the name of the new beneficial owner as follows.


 


	
  Name:

  
	
   

  
	
  Address:

  
	
   

  
	
  Taxpayer ID Number:

  



 


E-2





















 


Exhibit F


 


Officer’s Financial Certificate


 


The undersigned, the
[Chairman/Vice Chairman/Chief Executive Officer/President/Vice President/Chief
Financial Officer/Treasurer/Assistant Treasurer], hereby certifies pursuant to Section 8.16(b) of
the Amended and Restated Trust Agreement, dated as of May 20, 2005 (the “Trust
Agreement”), among GKK Capital LP (the “Company”), JPMorgan Chase Bank,
National Association, as property trustee, Chase Bank USA, National
Association, as Delaware trustee, and the administrative trustees named
therein, that, as of [date], [20   ], the Company had the
following ratios and balances:


 


As of [Quarterly/Annual Financial Date],
20    


 


	
  Senior secured indebtedness for borrowed
  money (“Debt”)

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Senior unsecured Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Subordinated Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Debt

  	
   

  	
  $

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

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

  	
   

  	
   

  	
  %

  



 


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


 


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


 


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


 


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


 


F-1





















 


	
   

  	
  GKK
  CAPITAL LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GKK Capital LP

  
	
   

  	
  420 Lexington Avenue

  
	
   

  	
  New York, NY 10170

  
	
   

  	
  (212) 297-1000

  
					



 


F-2





















 


Schedule A


 


DETERMINATION OF LIBOR


 


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


 


(1)           On the
second LIBOR Business Day (as defined below) prior to a Distribution Date
(except with respect to the first interest payment period, such date shall be May 18,
2005) (each such day, a “LIBOR Determination Date”), LIBOR for any
given security shall for the following interest payment period equal the rate,
as obtained by the Calculation Agent from Bloomberg Financial Markets
Commodities News, for three-month
Eurodollar deposits that appears on Dow Jones Telerate Page 3750 (as
defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions), or such other page as
may replace such Page 3750, as of 11:00 a.m. (London time) on such
LIBOR Determination Date.


 


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


 


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