**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**

 

 

 

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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 |   |
|                    |                                                                             |  |  |

 

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| **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                     |   |
|                    |                                                                                  |  |  |

 

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| **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                                               |   |
|                     |                                                                    |  |  |  |

 

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THIS AMENDED AND RESTATED TRUST AGREEMENT, dated as ofMay 20, 2005, among (i) **GKK Capital** LP, a **Delaware limited partnership**(including any successors or permitted assigns, the *“*Depositor*”*), (ii) JPMorganChase Bank, National Association, a national banking association, as propertytrustee (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**, anindividual, **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 “*AdministrativeTrustee**”* and,collectively, the “*Administrative Trustees**”* and, together with the Property Trustee and theDelaware Trustee, the *“**Trustees”*)and (v) the several Holders, as hereinafter defined.

 

WITNESSETH

 

WHEREAS,the Depositor and the Delaware Trustee have heretofore created a Delawarestatutory trust pursuant to the Delaware Statutory Trust Act by entering into aTrust Agreement, dated as of May **19**, 2005 (the *“**Original Trust Agreement”*), andby executing and filing with the Secretary of State of the State of Delawarethe 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 TrustAgreement in its entirety as set forth herein to provide for, among otherthings, (i) the issuance of the Common Securities by the Trust to theDepositor, (ii) the issuance and sale of the Preferred Securities by theTrust pursuant to the Purchase Agreement and (iii) the acquisition by theTrust from the Depositor of all of the right, title and interest in and to theNotes (as hereinafter defined);

 

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

 

ARTICLE I.

DEFINEDTERMS

 

SECTION 1.1.        *Definitions*.

 

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

 

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

 

(b)           thewords “include”, “includes” and “including” shall be deemed to be followed bythe phrase “without limitation”;

 

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

 

(d)           unlessthe 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)           thewords “hereby”, “herein”, “hereof” and “hereunder” and other words of similarimport refer to this Trust Agreement as a whole and not to any particularArticle, Section or other subdivision;

 

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

 

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

 

*“*Act*”* hasthe meaning specified in Section 6.7.

 

*“*AdditionalInterest*”* hasthe meaning specified in Section 1.1 of the Indenture.

 

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

 

*“*AdditionalTaxes*”* hasthe meaning specified in Section 1.1 of the Indenture.

 

*“*AdditionalTax Sums*”* hasthe meaning specified in Section 10.5 of the Indenture.

 

*“*AdministrativeTrustee*”* meanseach of the Persons identified as an *“**AdministrativeTrustee”* in the preamble to this Trust Agreement, solely in eachsuch Person’s capacity as Administrative Trustee of the Trust and not in suchPerson’s individual capacity, or any successor Administrative Trustee appointedas herein provided.

 

*“*Affiliate*”* of anyspecified Person means any other Person directly or indirectly controlling orcontrolled by or under direct or indirect common control with such specifiedPerson.  For the purposes of thisdefinition, “control” when used with respect to any specified Person means thepower to direct the management and policies of such Person, directly orindirectly, whether through the ownership of voting securities, by contract orotherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

 

*“Applicable Depositary Procedures”*means, with respect to any transfer or transaction involving a Book-EntryPreferred Security, the rules and procedures of the Depositary for suchBook-Entry Preferred Security, in each case to the extent applicable to suchtransaction and as in effect from time to time.

 

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*“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) judgingsuch Person a bankrupt or insolvent, (ii) approving as properly filed apetition seeking reorganization, arrangement, adjudication or composition of orin respect of such Person under any applicable Federal or state bankruptcy,insolvency, reorganization or other similar law, (iii) appointing acustodian, receiver, liquidator, assignee, trustee, sequestrator or othersimilar official of such Person or of any substantial part of its property or (iv) orderingthe winding up or liquidation of its affairs, and the continuance of any suchdecree or order unstayed and in effect for a period of sixty (60) consecutivedays; or

 

(b) the institution by such Person of proceedings to be adjudicated a bankrupt orinsolvent, or the consent by it to the institution of bankruptcy or insolvencyproceedings against it, or the filing by it of a petition or answer or consentseeking reorganization or relief under any applicable Federal or Statebankruptcy, insolvency, reorganization or other similar law, or the consent byit to the filing of any such petition or to the appointment of a custodian,receiver, liquidator, assignee, trustee, sequestrator or similar official ofsuch Person or of any substantial part of its property, or the making by it ofan assignment for the benefit of creditors, or the admission by it in writingof its inability to pay its debts generally as they become due and itswillingness to be adjudicated a bankrupt or insolvent, or the taking ofcorporate action by such Person in furtherance of any such action.

 

*“Bankruptcy Laws”* means allFederal and state bankruptcy, insolvency, reorganization and other similarlaws, including the United States Bankruptcy Code.

 

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

 

*“Business Day”* means a dayother than (a) a Saturday or Sunday, (b) a day on which bankinginstitutions in the City of New York are authorized or required by law orexecutive order to remain closed or (c) a day on which the Corporate TrustOffice is closed for business.

 

*“Calculation Agent”**has the meaning specifiedin Section 4.10.*

 

*“Closing Date”* has themeaning specified in the Purchase Agreement.

 

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

 

*“Commission”* means theSecurities and Exchange Commission, as from time to time constituted, createdunder the Exchange Act or, if at any time after the execution of this Trust

 

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Agreement such Commissionis not existing and performing the duties assigned to it, then the bodyperforming such duties at such time.

 

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

 

*“Common Security”* means anundivided beneficial interest in the assets of the Trust, having a LiquidationAmount 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 timeits corporate trust business shall be administered, which office at the date ofthis Trust Agreement is located at 600 Travis, 50th Floor, Houston,Texas 77002, Attention:  InstitutionalTrust Services—Gramercy Capital Trust I.

 

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

 

*“Delaware**Statutory**Trust Act”* means Chapter 38 ofTitle 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 thePerson identified as the *“**Delaware Trustee”*in the preamble to this Trust Agreement, solely in its capacity as DelawareTrustee of the Trust and not in its individual capacity, or its successor ininterest in such capacity, or any successor Delaware Trustee appointed asherein provided.

 

*“Depositary”* means anorganization registered as a clearing agency under the Exchange Act that isdesignated 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 forwhom from time to time the Depositary effects book-entry transfers and pledgesof securities deposited with the Depositary.

 

*“Depositor”* has the meaningspecified in the preamble to this Trust Agreement and any successors andpermitted assigns.

 

*“Depositor Affiliate”* has themeaning specified in Section 4.9.

 

*“Distribution Date”* has themeaning specified in Section 4.1(a)(i).

 

*“Distributions”* means amountspayable in respect of the Trust Securities as provided in Section 4.1.

 

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

 

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*“Early Termination Event”* hasthe meaning specified in Section 9.2.

 

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

 

*“Event of Default”* means anyone of the following events (whatever the reason for such event and whether itshall be voluntary or involuntary or be effected by operation of law orpursuant to any judgment, decree or order of any court or any order, rule orregulation 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 andpayable, 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 TrustSecurity when it becomes due and payable; or

 

(d) default in the performance, or breach, in any material respect of any covenantor warranty of the Trustees in this Trust Agreement (other than those specifiedin clause (b) or (c) above) and continuation of such default orbreach for a period of thirty (30) days after there has been given, byregistered or certified mail, to the Trustees and to the Depositor by theHolders of at least twenty five percent (25%) in aggregate Liquidation Amountof the Outstanding Preferred Securities a written notice specifying suchdefault or breach and requiring it to be remedied and stating that such noticeis a *“**Notice of Default”* hereunder; or

 

(e) the occurrence of a Bankruptcy Event with respect to the Property Trustee if asuccessor Property Trustee has not been appointed within ninety (90) daysthereof.

 

*“Exchange Act”* means theSecurities Exchange Act of 1934, and any successor statute thereto, in eachcase as amended from time to time.

 

*“Expiration Date”* has themeaning 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, orsuch other period as is required by the Code.

 

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

 

* “GlobalPreferred Security”* means a Preferred SecuritiesCertificate evidencing ownership of Book-Entry Preferred Securities.

 

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*“Holder”* means a Person inwhose name a Trust Security or Trust Securities are registered in theSecurities Register; any such Person shall be deemed to be a beneficial ownerwithin the meaning of the Delaware Statutory Trust Act.

 

*“Indemnified Person”* has themeaning specified in Section 8.10(c).

 

*“Indenture”* means the JuniorSubordinated Indenture executed and delivered by the Depositor and the NoteTrustee contemporaneously with the execution and delivery of this TrustAgreement, for the benefit of the holders of the Notes, a copy of which isattached hereto as Exhibit D, as amended or supplemented from timeto 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, ineach 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 ownershipinterest, hypothecation, assignment, security interest or preference, priorityor other security agreement or preferential arrangement of any kind or naturewhatsoever.

 

*“Like Amount”* means (a) withrespect to a redemption of any Trust Securities, Trust Securities having aLiquidation Amount equal to the principal amount of Notes to becontemporaneously redeemed or paid at maturity in accordance with theIndenture, the proceeds of which will be used to pay the Redemption Price ofsuch Trust Securities, (b) with respect to a distribution of Notes toHolders of Trust Securities in connection with a dissolution of the Trust,Notes having a principal amount equal to the Liquidation Amount of the TrustSecurities of the Holder to whom such Notes are distributed and (c) withrespect to any distribution of Additional Interest Amounts to Holders of TrustSecurities, Notes having a principal amount equal to the Liquidation Amount ofthe Trust Securities in respect of which such distribution is made.

 

*“Liquidation Amount”* meansthe stated amount of $1,000 per Trust Security.

 

*“Liquidation Date”* means thedate on which assets are to be distributed to Holders in accordance with Section9.4(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 morethan fifty percent (50%) of the aggregate Liquidation Amount of all (or aspecified group of) then Outstanding Common or Preferred Securities, as thecase may be.

 

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*“Note Event of Default”* meansany *“**Event of Default”* specified in Section 5.1of the Indenture.

 

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

 

*“Note Trustee”* means thePerson identified as the *“**Trustee”*in the Indenture, solely in its capacity as Trustee pursuant to the Indentureand not in its individual capacity, or its successor in interest in suchcapacity, or any successor Trustee appointed as provided in the Indenture.

 

*“Notes”* means the Depositor’sFloating Rate Junior Subordinated Notes issued pursuant to the Indenture.

 

*“Officers’ Certificate”* meansa certificate signed by the Chief Executive Officer, the President or anExecutive Vice President, and by the Chief Financial Officer, Treasurer or anAssistant Treasurer, of the Depositor, and delivered to the Trustees. AnyOfficers’ Certificate delivered with respect to compliance with a condition orcovenant provided for in this Trust Agreement (other than the certificateprovided pursuant to Section 8.16 which is not an Officers’ Certificate)shall include:

 

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

 

(b)  abrief statement of the nature and scope of the examination or investigationundertaken by such officer in rendering the Officers’ Certificate;

 

(c)  astatement that such officer has made such examination or investigation as, insuch officer’s opinion, is necessary to enable such officer to express aninformed opinion as to whether or not such covenant or condition has beencomplied with; and

 

(d)  astatement as to whether, in the opinion of such officer, such condition orcovenant has been complied with.

 

*“Operative Documents”* meansthe Purchase Agreement, the Indenture, the Trust Agreement, the Notes and theTrust Securities.

 

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

 

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

 

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any, thereon paid by theDepositor upon the concurrent redemption or payment at maturity of a LikeAmount of Notes.

 

*“Optional Note Redemption Price”*means, with respect to any Note to be redeemed on any Redemption Date under theIndenture, an amount equal to one hundred percent (100%) of the outstandingprincipal amount of such Note, together with accrued interest, including anyAdditional Interest (to the extent legally enforceable), thereon through butnot including the date fixed as such Redemption Date.

 

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

 

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

 

(a)  TrustSecurities theretofore canceled by the Property Trustee or delivered to theProperty Trustee for cancellation;

 

(b)  TrustSecurities for which payment or redemption money in the necessary amount hasbeen theretofore deposited with the Property Trustee or any Paying Agent intrust for the Holders of such Trust Securities; *provided**,*thatif such Trust Securities are to be redeemed, notice of such redemption has beenduly given pursuant to this Trust Agreement; and

 

(c)  TrustSecurities that have been paid or in exchange for or in lieu of which otherTrust Securities have been executed and delivered pursuant to the provisions ofthis Trust Agreement, unless proof satisfactory to the Property Trustee ispresented that any such Trust Securities are held by Holders in whose handssuch Trust Securities are valid, legal and binding obligations of the Trust;

 

*provided,*that in determiningwhether the Holders of the requisite Liquidation Amount of the OutstandingPreferred Securities have given any request, demand, authorization, direction,notice, consent or waiver hereunder, Preferred Securities owned by theDepositor, any Trustee or any Affiliate of the Depositor or of any Trusteeshall be disregarded and deemed not to be Outstanding, except that (i) indetermining whether any Trustee shall be protected in relying upon any suchrequest, demand, authorization, direction, notice, consent or waiver, onlyPreferred Securities that such Trustee knows to be so owned shall be sodisregarded and (ii) the foregoing shall not apply at any time when all ofthe Outstanding Preferred Securities are owned by the Depositor, one or more ofthe Trustees and/or any such Affiliate. Preferred Securities so owned that havebeen pledged in good faith may be regarded as Outstanding if the pledgeeestablishes to the satisfaction of the Administrative Trustees the pledgee’sright so to act with respect to such Preferred Securities and that the pledgeeis not the Depositor, any Trustee or any Affiliate of the Depositor or of anyTrustee.

 

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

 

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

 

*“Paying Agent”* means anyPerson authorized by the Administrative Trustees to pay Distributions or otheramounts in respect of any Trust Securities on behalf of the Trust.

 

*“Payment Account”* means asegregated non-interest-bearing corporate trust account maintained by the PropertyTrustee for the benefit of the Holders in which all amounts paid in respect ofthe Notes will be held and from which the Property Trustee, through the PayingAgent, shall make payments to the Holders in accordance with Sections 3.1,4.1 and 4.2.

 

*“Person”* means a legalperson, including any individual, corporation, estate, partnership, jointventure, association, joint stock company, company, limited liability company,trust, unincorporated association or government, or any agency or politicalsubdivision thereof, or any other entity of whatever nature.

 

*“Preferred Security”* means anundivided beneficial interest in the assets of the Trust, having a LiquidationAmount of $1,000 and having the rights provided therefor in this TrustAgreement.

 

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

 

*“Property Trustee”* means thePerson identified as the *“**Property Trustee”*in the preamble to this Trust Agreement, solely in its capacity as PropertyTrustee of the Trust and not in its individual capacity, or its successor ininterest in such capacity, or any successor Property Trustee appointed asherein provided.

 

*“Purchase Agreement”* meansthe Purchase Agreement executed and delivered by the Trust, the Depositor andMerrill Lynch International, as purchaser, contemporaneously with the executionand delivery of this Trust Agreement, as amended from time to time.

 

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

 

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

 

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

 

*“Redemption Date”* means, withrespect to any Trust Security to be redeemed, the date fixed for suchredemption by or pursuant to this Trust Agreement; *provided**,*thateach Note Redemption Date and the stated maturity (or any date of principalrepayment upon early maturity) of the Notes shall be a Redemption Date for aLike Amount of Trust Securities.

 

*“Redemption Price”* means theSpecial Redemption Price or Optional Redemption Price, as applicable.  If the Depositor has redeemed the Notes atthe Special Note Redemption Price, the Trust shall redeem the Trust Securitiesat the Special Redemption Price.  If theDepositor has

 

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redeemed the Notes at theOptional Note Redemption Price, the Trust shall redeem the Trust Securities atthe 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 TrustServices department of the Property Trustee having direct responsibility forthe administration of this Trust Agreement.

 

*“Securities Act”* means theSecurities Act of 1933, and any successor statute thereto, in each case asamended from time to time.

 

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

 

*“Securities Register”* and *“**Securities Registrar”* have therespective meanings specified in Section 5.7.

 

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

 

* “SpecialRedemption Price”* means, with respect to any TrustSecurity, an amount equal to one hundred seven and one half percent (107.5%) ofthe Liquidation Amount of such Trust Security on the Redemption Date, plusaccumulated and unpaid Distributions to the Redemption Date, plus the relatedamount of the premium, if any, and/or accrued interest, including AdditionalInterest, if any, thereon paid by the Depositor upon the concurrent redemptionor payment at maturity of a Like Amount of Notes.

 

*“Successor Securities”* hasthe meaning specified in Section 9.5(a).

 

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

 

*“Trust”* means the Delawarestatutory trust known as “**Gramercy**Capital Trust I,” which was created on May **19**,****2005 under the Delaware Statutory Trust Act pursuant to theOriginal Trust Agreement and the filing of the Certificate of Trust, andcontinued pursuant to this Trust Agreement.

 

*“Trust Agreement”* means thisAmended and Restated Trust Agreement, as the same may be modified, amended orsupplemented from time to time in accordance with the applicable provisionshereof, including all Schedules and Exhibits.

 

*“Trustees”* means theAdministrative Trustees, the Property Trustee and the Delaware Trustee, each asdefined in this Article I.

 

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*“Trust Property”* means (a) theNotes, (b) any cash on deposit in, or owing to, the Payment Account and (c) allproceeds and rights in respect of the foregoing and any other property andassets for the time being held or deemed to be held by the Property Trusteepursuant to the trusts of this Trust Agreement.

 

*“Trust Security”* means anyone of the Common Securities or the Preferred Securities.

 

ARTICLE II.

 

THETRUST

 

SECTION 2.1.        *Name*.

 

The trust continued hereby shall be known as “**Gramercy** CapitalTrust I”, as such name may be modified from time to time by the AdministrativeTrustees following written notice to the Holders of Trust Securities and theother Trustees, in which name the Trustees may conduct the business of theTrust, make and execute contracts and other instruments on behalf of the Trustand sue and be sued.

 

SECTION 2.2.        *Office of theDelaware Trustee; Office of the Trust*.

 

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

 

SECTION 2.3.        *Initial Contributionof Trust Property; Fees, Costs and Expenses*.

 

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

 

SECTION 2.4.        *Purposes of Trust*.

 

(a)           Theexclusive purposes and functions of the Trust are to (i) issue and sellTrust Securities and use the proceeds from such sale to acquire the Notes and (ii) engage in only those activities necessary or incidental thereto. The DelawareTrustee, the Property Trustee and the Administrative Trustees are trustees ofthe Trust, and have all the rights, powers and duties to the extent set forthherein.  The Trustees hereby acknowledgethat they are trustees of the Trust.

 

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(b)           Solong as this Trust Agreement remains in effect, the Trust (or the Trusteesacting on behalf of the Trust) shall not undertake any business, activities ortransaction except as expressly provided herein or contemplated hereby. Inparticular, the Trust (or the Trustees acting on behalf of the Trust) shall not(i) acquire any investments or engage in any activities not authorized bythis Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage,pledge, set-off or otherwise dispose of any of the Trust Property or intereststherein, including to Holders, except as expressly provided herein, (iii) incurany indebtedness for borrowed money or issue any other debt, (iv) take orconsent to any action that would result in the placement of a Lien on any ofthe Trust Property, (v) take or consent to any action that wouldreasonably be expected to cause the Trust to become taxable as a corporation orclassified as other than a grantor trust for United States federal income taxpurposes, (vi) take or consent to any action that would cause the Notes tobe treated as other than indebtedness of the Depositor for United Statesfederal income tax purposes or (vii) take or consent to any action thatwould cause the Trust to be deemed to be an “investment company” required to beregistered under the Investment Company Act.

 

SECTION 2.5.        *Authorization toEnter into Certain Transactions*.

 

(a)           TheTrustees shall conduct the affairs of the Trust in accordance with and subjectto the terms of this Trust Agreement. In accordance with the followingprovisions (i) and (ii), the Trustees shall have the authority to enterinto all transactions and agreements determined by the Trustees to beappropriate in exercising the authority, express or implied, otherwise grantedto the Trustees, under this Trust Agreement, and to perform all acts infurtherance thereof, including the following:

 

(i)            Asamong the Trustees, each Administrative Trustee shall severally have the powerand authority to act on behalf of the Trust with respect to the followingmatters:

 

(A)          theissuance and sale of the Trust Securities;

 

(B)           tocause the Trust to enter into, and to execute, deliver and perform on behalf ofthe Trust, such agreements as may be necessary or desirable in connection withthe purposes and function of the Trust, including, without limitation, a commonsecurities subscription agreement and a junior subordinated note purchaseagreement;

 

(C)           assistingin the sale of the Preferred Securities in one or more transactions exempt fromregistration under the Securities Act, and in compliance with applicable statesecurities or blue sky laws;

 

(D)          assistingin the sending of notices (other than notices of default) and other informationregarding the Trust Securities and the Notes to the Holders in accordance withthis Trust Agreement;

 

(E)           theappointment of a Paying Agent and Securities Registrar in accordance with thisTrust Agreement;

 

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(F)           executionof the Trust Securities on behalf of the Trust in accordance with this TrustAgreement;

 

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

 

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

 

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

 

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

 

(K)          thetaking of any action incidental to the foregoing as such Administrative Trusteemay from time to time determine is necessary or advisable to give effect to theterms of this Trust Agreement.

 

(ii)           Asamong the Trustees, the Property Trustee shall have the power, duty andauthority to act on behalf of the Trust with respect to the following matters:

 

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

 

(B)           theestablishment of the Payment Account;

 

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

 

(D)          thedistribution through the Paying Agent of amounts distributable to the Holdersin respect of the Trust Securities;

 

(E)           theexercise of all of the rights, powers and privileges of a holder of the Notesin accordance with the terms of this Trust Agreement;

 

(F)           thesending of notices of default and other information regarding the TrustSecurities and the Notes to the Holders in accordance with this TrustAgreement;

 

(G)           thedistribution of the Trust Property in accordance with the terms of this TrustAgreement;

 

(H)          tothe extent provided in this Trust Agreement, the winding up of the affairs of andliquidation of the Trust, provided that the Administrative

 

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

 

(I)            thetaking of any action incidental to the foregoing as the Property Trustee mayfrom time to time determine is necessary or advisable to give effect to theterms of this Trust Agreement and protect and conserve the Trust Property forthe benefit of the Holders (without consideration of the effect of any suchaction on any particular Holder).

 

(b)           Inconnection with the issue and sale of the Preferred Securities, the Depositorshall have the right and responsibility to assist the Trust with respect to, oreffect on behalf of the Trust, the following (and any actions taken by theDepositor in furtherance of the following prior to the date of this Trust Agreementare hereby ratified and confirmed in all respects):

 

(i)            thenegotiation of the terms of, and the execution and delivery of, the PurchaseAgreement providing for the sale of the Preferred Securities in one or moretransactions exempt from registration under the Securities Act, and incompliance with applicable state securities or blue sky laws; and

 

(ii)           thetaking of any other actions necessary or desirable to carry out any of theforegoing activities.

 

(c)           Notwithstandinganything herein to the contrary, the Administrative Trustees are authorized anddirected to conduct the affairs of the Trust and authorized to operate theTrust so that the Trust will not be taxable as a corporation or classified asother than a grantor trust for United States federal income tax purposes, sothat the Notes will be treated as indebtedness of the Depositor for UnitedStates federal income tax purposes and so that the Trust will not be deemed tobe an “investment company” required to be registered under the Investment CompanyAct.  In respect thereof, eachAdministrative Trustee is authorized to take any action, not inconsistent withapplicable law, the Certificate of Trust or this Trust Agreement, that suchAdministrative Trustee determines in his or her discretion to be necessary ordesirable for such purposes, as long as such action does not adversely affectin any material respect the interests of the Holders of the OutstandingPreferred Securities.  In no event shallthe Administrative Trustees be liable to the Trust or the Holders for anyfailure to comply with this Section 2.5 to the extent that suchfailure results solely from a change in law or regulation or in theinterpretation thereof.

 

(d)           Anyaction taken by a Trustee in accordance with its powers shall constitute theact of and serve to bind the Trust.  Indealing with any Trustee acting on behalf of the Trust, no Person shall berequired to inquire into the authority of such Trustee to bind the Trust.  Persons dealing with the Trust are entitledto rely conclusively on the power and authority of any Trustee as set forth inthis Trust Agreement.

 

SECTION 2.6.        *Assets of Trust*.

 

The assets of the Trust shall consist of the TrustProperty.

 

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SECTION 2.7.        *Title to TrustProperty*.

 

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

 

(b)           TheHolders shall not have any right or title to the Trust Property other than theundivided beneficial interest in the assets of the Trust conferred by theirTrust Securities and they shall have no right to call for any partition ordivision of property, profits or rights of the Trust except as described below.The Trust Securities shall be personal property giving only the rightsspecifically set forth therein and in this Trust Agreement.

 

ARTICLE III.

 

PAYMENT ACCOUNT;  PAYING AGENTS

 

SECTION 3.1.        *Payment Account*.

 

(a)           Onor prior to the Closing Date, the Property Trustee shall establish the PaymentAccount. The Property Trustee and the Paying Agent shall have exclusive controland sole right of withdrawal with respect to the Payment Account for thepurpose of making deposits in and withdrawals from the Payment Account inaccordance with this Trust Agreement. All monies and other property depositedor held from time to time in the Payment Account shall be held by the PropertyTrustee in the Payment Account for the exclusive benefit of the Holders and forDistribution as herein provided.

 

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

 

SECTION 3.2.        *Appointment of PayingAgents*.

 

The Paying Agent shall initially be the PropertyTrustee. The Paying Agent shall make Distributions to Holders from the PaymentAccount and shall report the amounts of such Distributions to the PropertyTrustee and the Administrative Trustees. Any Paying Agent shall have therevocable power to withdraw funds from the Payment Account solely for thepurpose of making the Distributions referred to above. The AdministrativeTrustees may revoke such power and remove the Paying Agent in their solediscretion. Any Person acting as Paying Agent shall be permitted to resign asPaying Agent upon thirty (30) days’ written notice to the AdministrativeTrustees and the Property Trustee. If the Property Trustee shall no longer bethe Paying Agent or a successor Paying Agent shall resign or its authority toact be revoked, the Administrative Trustees shall appoint a successor (whichshall be a bank or trust company) to act as Paying Agent.  Such successor Paying Agent appointed by theAdministrative Trustees shall execute and deliver to the Trustees an instrumentin which such successor Paying Agent shall agree with the Trustees that asPaying Agent, such successor Paying Agent will hold all sums, if any, held byit for payment to the Holders in trust for the benefit of the Holders entitledthereto

 

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until such sums shall bepaid to such Holders. The Paying Agent shall return all unclaimed funds to theProperty Trustee and upon removal of a Paying Agent such Paying Agent shallalso return all funds in its possession to the Property Trustee. The provisionsof Article VIII shall apply to the Property Trustee also in itsrole as Paying Agent, for so long as the Property Trustee shall act as PayingAgent and, to the extent applicable, to any other Paying Agent appointedhereunder. Any reference in this Trust Agreement to the Paying Agent shallinclude any co-paying agent unless the context requires otherwise.

 

ARTICLE IV.

 

DISTRIBUTIONS;REDEMPTION

 

SECTION 4.1.        *Distributions*.

 

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

 

(i)            Distributionson the Trust Securities shall be cumulative, and shall accumulate whether ornot there are funds of the Trust available for the payment ofDistributions.  Distributions shallaccumulate 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** ofeach year, commencing on **September 30**,2005.  If any date on which aDistribution is otherwise payable on the Trust Securities is not a BusinessDay, then the payment of such Distribution shall be made on the next succeedingBusiness Day (and no interest shall accrue in respect of the amounts whosepayment is so delayed for the period from and after each such date until thenext succeeding Business Day), except that, if such Business Day falls in thenext succeeding calendar year, such payment shall be made on the immediatelypreceding Business Day, in each case, with the same force and effect as if madeon such date (each date on which Distributions are payable in accordance withthis Section 4.1(a)(i), a *“**Distribution Date”*);

 

(ii)           inthe event (and to the extent) that the Depositor exercises its right under theIndenture to defer the payment of interest on the Notes, upon thirty (30) days’prior written notice, Distributions on the Trust Securities shall bedeferred.  Under the Indenture, so longas 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 andfrom time to time during the term of the Notes, to defer the payment ofinterest 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”), duringwhich 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 andpayable during an Extension Period, except at the end thereof**.  If Distributions are deferred, the deferredDistributions shall be paid on the date that the related Extension Period

 

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terminates, to Holders of the Trust Securities as theyappear on the books and records of the Trust on the record date immediatelypreceding such termination date.

 

(iii)          Distributionsshall 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 ofthe Liquidation Amount of the Trust Securities, such rate being the rate ofinterest payable on the Notes.  LIBORshall be determined by the Calculation Agent in accordance with Schedule A.During the Fixed Rate Period, the amount of Distributions payable for anyperiod less than a full Distribution period shall be computed on the basis of a360-day year of twelve 30-day months and the amount payable for any partialperiod shall be computed on the basis of the number of days elapsed in a 360-dayyear of twelve 30-day months.  Uponexpiration of the Fixed Rate Period, the amount of interest payable for anyDistribution period will be computed on the basis of a 360-day year and theactual number of days elapsed in the relevant Distribution period.** **The amount ofDistributions payable for any period shall include any Additional InterestAmounts in respect of such period; and

 

(iv)          Distributionson the Trust Securities shall be made by the Paying Agent from the PaymentAccount and shall be payable on each Distribution Date only to the extent thatthe Trust has funds then on hand and available in the Payment Account for thepayment of such Distributions.

 

(b)           Distributionson the Trust Securities with respect to a Distribution Date shall be payable tothe Holders thereof as they appear on the Securities Register for the TrustSecurities at the close of business on the relevant record date, which shall beat the close of business on the fifteenth day (whether or not a Business Day)preceding the relevant Distribution Date, except that Distributions and anyAdditional Interest Amounts payable on the stated maturity (or any date ofprincipal repayment upon early maturity) of the principal of a Trust Securityor on a Redemption Date shall be paid to the Person to whom principal ispaid.  Distributions payable on any TrustSecurities that are not punctually paid on any Distribution Date as a result ofthe Depositor having failed to make an interest payment under the Notes willcease to be payable to the Person in whose name such Trust Securities areregistered on the relevant record date, and such defaulted Distributions andany Additional Interest Amounts will instead be payable to the Person in whosename such Trust Securities are registered on the special record date, or otherspecified date for determining Holders entitled to such defaulted Distributionand Additional Interest Amount, established in the same manner, and on the samedate, as such is established with respect to the Notes under the Indenture.

 

(c)           Asa condition to the payment of any principal of or interest on the TrustSecurities without the imposition of withholding tax, the AdministrativeTrustees shall require the previous delivery of properly completed and signedapplicable U.S. federal income tax certifications (generally, an InternalRevenue Service Form W-9 (or applicable successor form) in the case of aperson 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 applicablesuccessor 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 othercertification acceptable to it to enable the Property Trustee or any Paying

 

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Agent to determinetheir respective duties and liabilities with respect to any taxes or othercharges that they may be required to pay, deduct or withhold in respect of suchTrust Securities.

 

SECTION 4.2.        *Redemption*.

 

(a)           Oneach Note Redemption Date and on the stated maturity (or any date of principalrepayment upon early maturity) of the Notes and on each other date on (or inrespect of) which any principal on the Notes is repaid, the Trust will berequired to redeem a Like Amount of Trust Securities at the Redemption Price.

 

(b)           Noticeof 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) daysprior 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 ofredemption shall state:

 

(i)            theRedemption Date;

 

(ii)           theRedemption Price or, if the Redemption Price cannot be calculated prior to thetime the notice is required to be sent, the estimate of the Redemption Priceprovided pursuant to the Indenture, as calculated by the Depositor, togetherwith a statement that it is an estimate and that the actual Redemption Pricewill be calculated by the Calculation Agent on the fifth Business Day prior tothe Redemption Date (and if an estimate is provided, a further notice shall besent of the actual Redemption Price on the date that such Redemption Price iscalculated);

 

(iii)          ifless than all the Outstanding Trust Securities are to be redeemed, theidentification (and, in the case of partial redemption, the respective amounts)and Liquidation Amounts of the particular Trust Securities to be redeemed;

 

(iv)          thaton the Redemption Date, the Redemption Price will become due and payable uponeach such Trust Security, or portion thereof, to be redeemed and thatDistributions thereon will cease to accumulate on such Trust Security or suchportion, as the case may be, on and after said date, except as provided in Section 4.2(d);

 

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

 

(vi)          suchother provisions as the Property Trustee deems relevant.

 

(c)           TheTrust Securities (or portion thereof) redeemed on each Redemption Date shall beredeemed at the Redemption Price with the proceeds from the contemporaneousredemption or payment at maturity of Notes. Redemptions of the Trust Securities(or portion thereof) shall be made and the Redemption Price shall be payable oneach Redemption Date only to the extent that the Trust has funds then on handand available in the Payment Account for the payment of such RedemptionPrice.  Under the Indenture, the Notesmay be redeemed by the Depositor on any Interest Payment Date, at the Depositor’soption, on or after **June 30**,2010,****in whole or in part, fromtime to time at the Optional Note Redemption Price.  The Notes may also be redeemed by theDepositor, at its option pursuant to the terms of the Indenture, in whole butnot in part,

 

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

 

(d)           Ifthe Property Trustee gives a notice of redemption in respect of any PreferredSecurities, then by 10:00 A.M., New York City time, on the RedemptionDate, the Depositor shall deposit sufficient funds with the Property Trustee topay the Redemption Price.  If suchdeposit has been made by such time, then by 12:00 noon, New York City time, onthe Redemption Date, the Property Trustee will, with respect to Book-EntryPreferred Securities, irrevocably deposit with the Depositary for suchBook-Entry Preferred Securities, to the extent available therefor, fundssufficient to pay the applicable Redemption Price and will give such Depositaryirrevocable instructions and authority to pay the Redemption Price to theHolders of the Preferred Securities. With respect to Preferred Securities thatare not Book-Entry Preferred Securities, the Property Trustee will irrevocablydeposit with the Paying Agent, to the extent available therefor, fundssufficient to pay the applicable Redemption Price and will give the PayingAgent irrevocable instructions and authority to pay the Redemption Price to theHolders of the Preferred Securities upon surrender of their PreferredSecurities Certificates. Notwithstanding the foregoing, Distributions payableon or prior to the Redemption Date for any Trust Securities (or portionthereof) called for redemption shall be payable to the Holders of such TrustSecurities as they appear on the Securities Register on the relevant recorddates for the related Distribution Dates. If notice of redemption shall havebeen given and funds deposited as required, then upon the date of such deposit,all rights of Holders holding Trust Securities (or portion thereof) so calledfor redemption will cease, except the right of such Holders to receive theRedemption Price and any Distribution payable in respect of the TrustSecurities on or prior to the Redemption Date, but without interest, and, inthe case of a partial redemption, the right of such Holders to receive a newTrust Security or Securities of authorized denominations, in aggregate LiquidationAmount equal to the unredeemed portion of such Trust Security or Securities,and such Securities (or portion thereof) called for redemption will cease to beOutstanding. In the event that any date on which any Redemption Price ispayable is not a Business Day, then payment of the Redemption Price payable onsuch date will be made on the next succeeding Business Day (and no interestshall accrue in respect of the amounts whose payment is so delayed for theperiod 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 eachcase, with the same force and effect as if made on such date. In the event thatpayment of the Redemption Price in respect of any Trust Securities (or portionthereof) called for redemption is improperly withheld or refused and not paideither by the Trust, Distributions on such Trust Securities (or portionthereof) will continue to accumulate, as set forth in Section 4.1,from the Redemption Date originally established by the Trust for such TrustSecurities (or portion thereof) to the date such Redemption Price is actuallypaid, in which case the actual payment date will be the date fixed forredemption for purposes of calculating the Redemption Price.

 

(e)           Subjectto Section 4.3(a), if less than all the Outstanding TrustSecurities are to be redeemed on a Redemption Date, then the aggregateLiquidation Amount of Trust Securities to be redeemed shall be allocated *pro rata*to the Common Securities and the Preferred Securities based upon the relativeaggregate Liquidation Amounts of the Common Securities and the PreferredSecurities.  The Preferred Securities tobe redeemed shall be selected on a *pro rata* basis based upon theirrespective Liquidation Amounts not more than sixty (60) days prior to the

 

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Redemption Date bythe Property Trustee from the Outstanding Preferred Securities not previouslycalled for redemption; *provided,*thatwith 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 suchredemption such Holder shall hold either one hundred (100) Trust Securities orsuch Holder no longer holds any Trust Securities, and shall use such method(including, without limitation, by lot) as the Trust shall deem fair andappropriate; and *provided**,*further*,* thatso long as the Preferred Securities are Book-Entry Preferred Securities, suchselection shall be made in accordance with the Applicable Depositary Proceduresfor the Preferred Securities by such Depositary. The Property Trustee shallpromptly notify the Securities Registrar in writing of the Preferred Securities(or portion thereof) selected for redemption and, in the case of any PreferredSecurities selected for partial redemption, the Liquidation Amount thereof tobe redeemed. For all purposes of this Trust Agreement, unless the contextotherwise requires, all provisions relating to the redemption of PreferredSecurities shall relate, in the case of any Preferred Securities redeemed or tobe redeemed only in part, to the portion of the aggregate Liquidation Amount ofPreferred Securities that has been or is to be redeemed.

 

(f)            TheTrust in issuing the Trust Securities may use “CUSIP” numbers (if thengenerally in use), and, if so, the Property Trustee shall indicate the “CUSIP”numbers of the Trust Securities in notices of redemption and related materialsas a convenience to Holders; *provided*, that any such notice may state that norepresentation is made as to the correctness of such numbers either as printedon the Trust Securities or as contained in any notice of redemption and relatedmaterials.

 

SECTION 4.3.        *Subordination ofCommon Securities*.

 

(a)           Paymentof Distributions (including any Additional Interest Amounts) on, the RedemptionPrice of and the Liquidation Distribution in respect of, the Trust Securities,as applicable, shall be made, *pro rata* among the Common Securities and the PreferredSecurities based on the Liquidation Amount of the respective Trust Securities; *provided**,*thatif on any Distribution Date, Redemption Date or Liquidation Date an Event ofDefault shall have occurred and be continuing, no payment of any Distribution(including any Additional Interest Amounts) on, Redemption Price of orLiquidation Distribution in respect of, any Common Security, and no otherpayment on account of the redemption, liquidation or other acquisition ofCommon Securities, shall be made unless payment in full in cash of allaccumulated and unpaid Distributions (including any Additional InterestAmounts) on all Outstanding Preferred Securities for all Distribution periodsterminating on or prior thereto, or in the case of payment of the RedemptionPrice the full amount of such Redemption Price on all Outstanding PreferredSecurities then called for redemption, or in the case of payment of theLiquidation Distribution the full amount of such Liquidation Distribution onall Outstanding Preferred Securities, shall have been made or provided for, andall funds immediately available to the Property Trustee shall first be appliedto the payment in full in cash of all Distributions (including any AdditionalInterest Amounts) on, or the Redemption Price of or the LiquidationDistribution in respect of, the Preferred Securities then due and payable.

 

(b)           Inthe case of the occurrence of any Event of Default, the Holders of the CommonSecurities shall have no right to act with respect to any such Event of Defaultunder this Trust

 

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Agreement untilall such Events of Default with respect to the Preferred Securities have beencured, waived or otherwise eliminated. Until all such Events of Default underthis Trust Agreement with respect to the Preferred Securities have been socured, waived or otherwise eliminated, the Property Trustee shall act solely onbehalf of the Holders of the Preferred Securities and not on behalf of theHolders of the Common Securities, and only the Holders of all the PreferredSecurities will have the right to direct the Property Trustee to act on theirbehalf.

 

SECTION 4.4.        *Payment Procedures*.

 

Payments of Distributions (including any AdditionalInterest Amounts), the Redemption Price, Liquidation Amount or any otheramounts in respect of the Preferred Securities shall be made by wire transferat such place and to such account at a banking institution in the United Statesas may be designated in writing at least ten (10) Business Days prior tothe date for payment by the Person entitled thereto unless proper writtentransfer instructions have not been received by the relevant record date, inwhich case such payments shall be made by check mailed to the address of suchPerson as such address shall appear in the Securities Register.  If any Preferred Securities are held by aDepositary, such Distributions thereon shall be made to the Depositary inimmediately available funds. Payments in respect of the Common Securities shallbe made in such manner as shall be mutually agreed between the Property Trusteeand the Holder of all the Common Securities.

 

SECTION 4.5.        *Withholding Tax*.

 

(a)           TheTrust and the Administrative Trustees shall comply with all withholding andbackup withholding tax requirements under United States federal, state andlocal law.  The Administrative Trusteeson behalf of the Trust shall request, and the Holders shall provide to theTrust, such forms or certificates as are necessary to establish an exemptionfrom withholding and backup withholding tax with respect to each Holder and anyrepresentations and forms as shall reasonably be requested by theAdministrative Trustees on behalf of the Trust to assist it in determining theextent of, and in fulfilling, its withholding and backup withholding taxobligations.  The Administrative Trusteesshall file required forms with applicable jurisdictions and, unless anexemption from withholding and backup withholding tax is properly establishedby a Holder, shall remit amounts withheld with respect to the Holder toapplicable jurisdictions.  To the extentthat the Trust is required to withhold and pay over any amounts to anyjurisdiction with respect to Distributions or allocations to any Holder, theamount withheld shall be deemed to be a Distribution in the amount of thewithholding to the Holder.  In the eventof any claimed overwithholding, Holders shall be limited to an action againstthe applicable jurisdiction.  If theamount required to be withheld was not withheld from actual Distributions made,the Administrative Trustees on behalf of the Trust may reduce subsequentDistributions by the amount of such required withholding.

 

SECTION 4.6.        *Tax Returns and OtherReports*.

 

TheAdministrative Trustees shall prepare (or cause to be prepared) at theprincipal office of the Trust in the United States, as defined for purposes ofTreasury regulations section 301.7701-7, at the Depositor’s expense, andfile, all United States federal, state and local tax and information returnsand reports required to be filed by or in respect of the Trust.  The

 

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

 

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

 

Upon receipt under the Notes of Additional Tax Sumsand upon the written direction of the Administrative Trustees, the PropertyTrustee shall promptly pay, solely out of monies on deposit pursuant to thisTrust Agreement, any Additional Taxes imposed on the Trust by the United Statesor any other taxing authority.

 

SECTION 4.8.        *Payments underIndenture or Pursuant to Direct Actions*.

 

Any amount payable hereunder to any Holder ofPreferred Securities shall be reduced by the amount of any correspondingpayment such Holder (or any Owner with respect thereto) has directly receivedpursuant to Section 5.8 of the Indenture or Section 6.10(b) ofthis Trust Agreement.

 

SECTION 4.9.        *Exchanges*.

 

(a)           Ifat any time the Depositor or any of its Affiliates (in either case, a *“**Depositor Affiliate”*) is theOwner or Holder of any Preferred Securities, such Depositor Affiliate shallhave the right to deliver to the Property Trustee all or such portion of itsPreferred Securities as it elects and, subject to compliance with Sections 2.2and 3.5 of the Indenture, receive, in exchange therefor, a Like Amount ofNotes.  Such election shall be exercisableeffective on any Distribution Date by such Depositor Affiliate delivering tothe Property Trustee (i) at least ten (10) Business Days prior to theDistribution Date on which such exchange is to occur, the registrationinstructions and the documentation, if any, required pursuant to Sections 2.2and 3.5 of the Indenture to enable the Indenture Trustee to issue the requestedLike Amount of Notes, (ii) a written notice of such election specifyingthe Liquidation Amount of Preferred Securities with respect to which suchelection is being made and the Distribution Date on which such exchange shalloccur, which Distribution Date shall be not less than ten (10) BusinessDays after the date of receipt by the Property Trustee of such election noticeand (iii) shall be conditioned upon such Depositor Affiliate havingdelivered or caused to be delivered to the Property Trustee or its designee thePreferred 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 tooccur.  After the exchange, suchPreferred Securities will be canceled and will no longer be deemed to beOutstanding and all rights of the Depositor Affiliate with respect to suchPreferred Securities will cease.

 

(b)           Inthe case of an exchange described in Section 4.9(a), the PropertyTrustee on behalf of the Trust will, on the date of such exchange, exchangeNotes having a principal amount equal to a proportional amount of the aggregateLiquidation Amount of the Outstanding Common Securities, based on the ratio ofthe aggregate Liquidation Amount of the Preferred Securities exchanged pursuantto Section 4.9(a) divided by the aggregate Liquidation Amountof

 

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the PreferredSecurities Outstanding immediately prior to such exchange, for suchproportional amount of Common Securities held by the Depositor (whichcontemporaneously shall be canceled and no longer be deemed to be Outstanding);*provided*,that the Depositor delivers or causes to be delivered to the Property Trusteeor its designee the required amount of Common Securities to be exchanged by10:00 A.M. New York time, on the Distribution Date on which such exchangeis to occur.

 

SECTION 4.10.      *Calculation Agent*.

 

(a)           TheProperty Trustee shall initially, and, subject to the immediately followingsentence, for so long as it holds any of the Notes, be the Calculation Agentfor purposes of determining LIBOR for each Distribution Date.  The Calculation Agent may be removed by theAdministrative Trustees at any time.  Ifthe Calculation Agent is unable or unwilling to act as such or is removed bythe Administrative Trustees, the Administrative Trustees will promptly appointas a replacement Calculation Agent the London office of a leading bank which isengaged in transactions in six-month Eurodollar deposits in the internationalEurodollar market and which does not control or is not controlled by or undercommon control with the Administrative Trustee or its Affiliates.  The Calculation Agent may not resign itsduties without a successor having been duly appointed.

 

(b)           TheCalculation Agent shall be required to agree that, as soon as possible after11:00 a.m. (London time) on each LIBOR Determination Date, but in no eventlater than 11:00 a.m. (London time) on the Business Day immediatelyfollowing each LIBOR Determination Date, the Calculation Agent will calculatethe interest rate (rounded to the nearest cent, with half a cent being roundedupwards) for the related Distribution Date, and will communicate such rate andamount to the Depositor, the Administrative Trustees, the Note Trustee, eachPaying Agent and the Depositary. The Calculation Agent will also specify to theAdministrative Trustee the quotations upon which the foregoing rates andamounts are based and, in any event, the Calculation Agent shall notify theAdministrative Trustees before 5:00 p.m. (London time) on each LIBORDetermination Date that either:  (i) ithas determined or is in the process of determining the foregoing rates andamounts or (ii) it has not determined and is not in the process ofdetermining the foregoing rates and amounts, together with its reasonstherefor.  The Calculation Agent’sdetermination 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 theinterest rate for the Trust Securities, “Business Day” shall be defined as anyday on which dealings in deposits in Dollars are transacted in the Londoninterbank market.

 

SECTION 4.11.      *Certain Accounting Matters*.

 

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

 

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

 

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

 

(d)           TheTrust shall maintain one or more bank accounts in the United States, as definedfor purposes of Treasury Regulations section 301.7701-7, in the name andfor the sole benefit of the Trust; *provided, however,*that all payments of funds in respect of the Notes held by the Property Trusteeshall be made directly to the Payment Account and no other funds of the Trustshall 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.        *InitialOwnership*.

 

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

 

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SECTION 5.2.        *AuthorizedTrust Securities*.

 

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

 

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

 

On the Closing Date, an Administrative Trustee, onbehalf of the Trust, shall execute and deliver to the Depositor CommonSecurities Certificates, registered in the name of the Depositor, evidencing anaggregate of One Thousand Five Hundred Fifty Common Securities having anaggregate Liquidation Amount of **OneMillion Five Hundred Fifty******ThousandDollars **$1,550,000**,against receipt by the Trust of the aggregate purchase price of such CommonSecurities of **One Million FiveHundred Fifty******ThousandDollars **$1,550,000**.Contemporaneously therewith and with the sale by the Trust to the Holders of anaggregate 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 theDepositor Notes, to be registered in the name of the Property Trustee on behalfof 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 Depositorthe sum of **Fifty One MillionFive Hundred Fifty** Thousand Dollars **$51,550,000** (beingthe aggregate amount paid by the Holders for the Preferred Securities, and theamount paid by the Depositor for the Common Securities).

 

SECTION 5.4.        *TheSecurities Certificates*.

 

(a)           ThePreferred 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 denominationsof $10,000 Liquidation Amount and integral multiples of $1,000 in excessthereof.  The Securities Certificatesshall be executed on behalf of the Trust by manual or facsimile signature of atleast one Administrative Trustee. Securities Certificates bearing the signatures of individuals who were,at the time when such signatures shall have been affixed, authorized to signsuch Securities Certificates on behalf of the Trust shall be validly issued andentitled to the benefits of this Trust Agreement, notwithstanding that suchindividuals or any of them shall have ceased to be so authorized prior to thedelivery of such Securities Certificates or did not have such authority at thedate of delivery of such Securities Certificates.

 

(b)           Onthe Closing Date, upon the written order of an authorized officer of theDepositor, the Administrative Trustees shall cause Securities Certificates tobe executed on behalf of the Trust and delivered, without further corporateaction by the Depositor, in authorized denominations.

 

(c)           ThePreferred 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 GlobalPreferred Securities registered in the name of the Depositary, or its nomineeand deposited with the

 

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

 

(d)           APreferred Security shall not be valid until authenticated by the manualsignature of an authorized signatory of the Property Trustee.  Such signature shall be conclusive evidencethat the Preferred Security has been authenticated under this TrustAgreement.  Upon written order of theTrust signed by one Administrative Trustee, the Property Trustee shallauthenticate the Preferred Securities for original issue.  The Property Trustee may appoint anauthenticating agent that is a U.S. Person acceptable to the Trust toauthenticate the Preferred Securities.  ACommon Security need not be so authenticated and shall be valid upon executionby one or more Administrative Trustees. The form of this certificate of authentication can be found in Section 5.13.

 

SECTION 5.5.        *Rightsof Holders*.

 

The Trust Securities shall have no preemptive orsimilar rights and when issued and delivered to Holders against payment of thepurchase price therefor will be fully paid and non-assessable by theTrust.  Except as provided in Section 5.11(b),the Holders of the Trust Securities, in their capacities as such, shall beentitled to the same limitation of personal liability extended to stockholdersof private corporations for profit organized under the General Corporation Lawof the State of Delaware.

 

SECTION 5.6.        *Book-EntryPreferred Securities*.

 

(a)           AGlobal Preferred Security may be exchanged, in whole or in part, for DefinitivePreferred Securities Certificates registered in the names of the Owners only ifsuch exchange complies with Section 5.7 and (i) the Depositaryadvises the Administrative Trustees and the Property Trustee in writing thatthe Depositary is no longer willing or able properly to discharge its responsibilitieswith respect to the Global Preferred Security, and no qualified successor isappointed by the Administrative Trustees within ninety (90) days of receipt ofsuch notice, (ii) the Depositary ceases to be a clearing agency registeredunder the Exchange Act and the Administrative Trustees fail to appoint aqualified successor within ninety (90) days of obtaining knowledge of suchevent, (iii) the Administrative Trustees at their option advise theProperty Trustee in writing that the Trust elects to terminate the book-entrysystem through the Depositary or (iv) a Note Event of Default has occurredand is continuing. Upon the occurrence of any event specified in clause (i),(ii), (iii) or (iv) above, the Administrative Trustees shall notifythe Depositary and instruct the Depositary to notify all Owners of Book-EntryPreferred Securities, the Delaware Trustee and the Property Trustee of theoccurrence of such event and of the availability of the Definitive PreferredSecurities Certificates to Owners of the Preferred Securities requesting thesame. Upon the issuance of Definitive Preferred Securities Certificates, theTrustees shall recognize the Holders of the Definitive Preferred SecuritiesCertificates as Holders.  Notwithstandingthe foregoing, if an Owner of a beneficial interest in a Global PreferredSecurity wishes at any time to transfer an interest in such Global PreferredSecurity to a Person other than a QIB/QP, such transfer shall be effected,subject to the Applicable Depositary Procedures, in accordance with theprovisions of this Section 5.6 and Section 5.7, and

 

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thetransferee shall receive a Definitive Preferred Securities Certificate inconnection with such transfer.  A holderof a Definitive Preferred Securities Certificate that is a QIB/QP may, uponrequest and in accordance with the provisions of this Section 5.6and Section 5.7, exchange such Definitive Preferred SecuritiesCertificate for a beneficial interest in a Global Preferred Security.

 

(b)           Ifany Global Preferred Security is to be exchanged for Definitive PreferredSecurities Certificates or canceled in part, or if any Definitive PreferredSecurities Certificate is to be exchanged in whole or in part for any GlobalPreferred Security, then either (i) such Global Preferred Security shallbe so surrendered for exchange or cancellation as provided in this Article Vor (ii) the aggregate Liquidation Amount represented by such GlobalPreferred Security shall be reduced, subject to Section 5.4, orincreased by an amount equal to the Liquidation Amount represented by thatportion of the Global Preferred Security to be so exchanged or canceled, orequal to the Liquidation Amount represented by such Definitive PreferredSecurities Certificates to be so exchanged for any Global Preferred Security,as the case may be, by means of an appropriate adjustment made on the recordsof the Securities Registrar, whereupon the Property Trustee, in accordance withthe Applicable Depositary Procedures, shall instruct the Depositary or itsauthorized representative to make a corresponding adjustment to its records.Upon any such surrender to the Administrative Trustees or the SecuritiesRegistrar of any Global Preferred Security or Securities by the Depositary,accompanied by registration instructions, the Administrative Trustees, or anyone of them, shall execute the Definitive Preferred Securities Certificates inaccordance with the instructions of the Depositary.  None of the Securities Registrar or the Trusteesshall be liable for any delay in delivery of such instructions and mayconclusively rely on, and shall be fully protected in relying on, suchinstructions.

 

(c)           EveryDefinitive Preferred Securities Certificate executed and delivered uponregistration or transfer of, or in exchange for or in lieu of, a GlobalPreferred Security or any portion thereof shall be executed and delivered inthe form of, and shall be, a Global Preferred Security, unless such DefinitivePreferred Securities Certificate is registered in the name of a Person otherthan the Depositary for such Global Preferred Security or a nominee thereof.

 

(d)           TheDepositary or its nominee, as registered owner of a Global Preferred Security,shall be the Holder of such Global Preferred Security for all purposes underthis Trust Agreement and the Global Preferred Security, and Owners with respectto a Global Preferred Security shall hold such interests pursuant to theApplicable Depositary Procedures. The Securities Registrar and the Trustees shallbe entitled to deal with the Depositary for all purposes of this TrustAgreement relating to the Global Preferred Securities (including the payment ofthe Liquidation Amount of and Distributions on the Book-Entry PreferredSecurities represented thereby and the giving of instructions or directions byOwners of Book-Entry Preferred Securities represented thereby and the giving ofnotices) as the sole Holder of the Book-Entry Preferred Securities representedthereby and shall have no obligations to the Owners thereof.  None of the Trustees northe Securities Registrar shall have any liability in respect of any transferseffected by the Depositary.

 

(e)           Therights of the Owners of the Book-Entry Preferred Securities shall be exercisedonly through the Depositary and shall be limited to those established by law,the Applicable Depositary Procedures and agreements between such Owners and theDepositary and/or the Depositary Participants; *provided**,* thatsolely for the purpose of determining whether

 

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

 

(f)            Tothe extent that a notice or other communication to the Holders is requiredunder this Trust Agreement, for so long as Preferred Securities are representedby a Global Preferred Security, the Trustees shall give all such notices andcommunications to the Depositary, and shall have no obligations to the Owners.

 

SECTION 5.7.        *Registrationof Transfer and Exchange of Preferred Securities Certificates*.

 

(a)           TheProperty 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”*), subjectto such reasonable regulations as it may prescribe, shall provide for theregistration of Preferred Securities Certificates and Common SecuritiesCertificates and registration of transfers and exchanges of PreferredSecurities Certificates as herein provided. The Person acting as the PropertyTrustee shall at all times also be the Securities Registrar.  The provisions of Article VIIIshall apply to the Property Trustee in its role as Securities Registrar.

 

(b)           Subjectto Section 5.7(d), upon surrender for registration of transfer of anyPreferred Securities Certificate at the office or agency maintained pursuant toSection 5.7(f), the Administrative Trustees or any one of themshall execute by manual or facsimile signature and deliver to the PropertyTrustee, and the Property Trustee shall authenticate and deliver, in the nameof the designated transferee or transferees, one or more new PreferredSecurities Certificates in authorized denominations of a like aggregateLiquidation Amount as may be required by this Trust Agreement dated the date ofexecution by such Administrative Trustee or Trustees.  At the option of a Holder, Preferred SecuritiesCertificates may be exchanged for other Preferred Securities Certificates inauthorized denominations and of a like aggregate Liquidation Amount uponsurrender of the Preferred Securities Certificate to be exchanged at the officeor agency maintained pursuant to Section 5.7(f).  Whenever any Preferred SecuritiesCertificates are so surrendered for exchange, the Administrative Trustees orany one of them shall execute by manual or facsimile signature and deliver tothe Property Trustee, and the Property Trustee shall authenticate and deliver,the Preferred Securities Certificates that the Holder making the exchange isentitled to receive.

 

(c)           TheSecurities Registrar shall not be required, (i) to issue, register thetransfer of or exchange any Preferred Security during a period beginning at theopening of business fifteen (15) days before the day of selection forredemption of such Preferred Securities pursuant to

 

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Article IVand ending at the close of business on the day of mailing of the notice ofredemption or (ii) to register the transfer of or exchange any PreferredSecurity so selected for redemption in whole or in part, except, in the case ofany such Preferred Security to be redeemed in part, any portion thereof not tobe redeemed.

 

(d)           EveryPreferred Securities Certificate presented or surrendered for registration oftransfer or exchange shall be duly endorsed, or be accompanied by a writteninstrument of transfer in form satisfactory to the Securities Registrar dulyexecuted by the Holder or such Holder’s attorney duly authorized in writing andaccompanied by a certificate of the transferee substantially in the form setforth as Exhibit E hereto.

 

(e)           Noservice charge shall be made for any registration of transfer or exchange ofPreferred Securities Certificates, but the Property Trustee on behalf of theTrust may require payment of a sum sufficient to cover any tax or governmentalcharge that may be imposed in connection with any transfer or exchange ofPreferred Securities Certificates.

 

(f)            TheAdministrative Trustees shall designate an office or offices or agency oragencies where Preferred Securities Certificates may be surrendered forregistration of transfer or exchange and initially designate the CorporateTrust Office as its office and agency for such purposes. The AdministrativeTrustees shall give prompt written notice to the Depositor, the PropertyTrustee and to the Holders of any change in the location of any such office oragency.

 

(g)           ThePreferred Securities may only be transferred to a “Qualified Purchaser” as suchterm is defined in Section 2(a)(51) of theInvestment Company Act.

 

(h)           Neitherthe Trustee nor the Securities Registrar shall be responsible for ascertainingwhether any transfer hereunder complies with the registration provisions of orany exemptions from the Securities Act, applicable state securities laws or theapplicable laws of any other jurisdiction, ERISA, the Code or the InvestmentCompany Act; provided, that if a certificate is specifically required by theexpress terms of this Section 5.7 to be delivered to the Trustee or theSecurities Registrar by a Holder or transferee of a Security, the Trustee andthe Securities Registrar shall be under a duty to receive and examine the sameto determine whether or not the certificate substantially conforms on its faceto the requirements of this Indenture and shall promptly notify the partydelivering the same if such certificate does not comply with such terms.

 

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

 

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

 

(b)           Ifthe Securities Registrar shall receive evidence to its satisfaction of thedestruction, loss or theft of any Securities Certificate and there shallbe delivered to the Securities Registrar such security or indemnity as may berequired by it to save each of the

 

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

 

(c)           Inconnection with the issuance of any new Securities Certificate under this Section 5.8,the Administrative Trustees or the Securities Registrar may require the paymentof a sum sufficient to cover any tax or other governmental charge that may beimposed in connection therewith.

 

(d)           Anyduplicate Securities Certificate issued pursuant to this Section 5.8shall constitute conclusive evidence of an undivided beneficial interest in theassets of the Trust corresponding to that evidenced by the mutilated, lost,stolen or destroyed Securities Certificate, as if originally issued, whether ornot the lost, stolen or destroyed Securities Certificate shall be found at anytime.

 

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

 

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

 

SECTION 5.9.        *Persons DeemedHolders*.

 

The Trustees and the Securities Registrar shall eachtreat the Person in whose name any Securities Certificate shall be registeredin the Securities Register as the owner of such Securities Certificate for thepurpose of receiving Distributions and for all other purposes whatsoever, andnone of the Trustees and the Securities Registrar shall be bound by any noticeto the contrary.

 

SECTION 5.10.      *Cancellation*.

 

All Preferred Securities Certificates surrendered forregistration of transfer or exchange or for payment shall, if surrendered toany Person other than the Property Trustee, be delivered to the PropertyTrustee, and any such Preferred Securities Certificates and Preferred SecuritiesCertificates surrendered directly to the Property Trustee for any such purposeshall be promptly canceled by it.  TheAdministrative Trustees may at any time deliver to the Property Trustee forcancellation any Preferred Securities Certificates previously deliveredhereunder that the Administrative Trustees may have acquired in any mannerwhatsoever, and all Preferred Securities Certificates so delivered shall bepromptly canceled by the Property Trustee. No Preferred Securities Certificates shall be executed and delivered inlieu of or in exchange for any Preferred Securities Certificates canceled asprovided in this Section 5.10, except as expressly permitted bythis Trust Agreement.  All canceledPreferred Securities Certificates shall be retained by the Property Trustee inaccordance with its customary practices.

 

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SECTION 5.11.      *Ownershipof Common Securities by Depositor*.

 

(a)           Onthe Closing Date, the Depositor shall acquire, and thereafter shall retain,beneficial and record ownership of the Common Securities. Neither the Depositornor any successor Holder of the Common Securities may transfer less than allthe Common Securities, and the Depositor or any such successor Holder maytransfer the Common Securities only (i) in connection with a consolidationor merger of the Depositor into another Person, or any conveyance, transfer orlease by the Depositor of its properties and assets substantially as anentirety to any Person (in which event such Common Securities will betransferred to such surviving entity, transferee or lessee, as the case maybe), pursuant to Section 8.1 of the Indenture or (ii) to theDepositor or an Affiliate of the Depositor, in each such case in compliancewith applicable law (including the Securities Act, and applicable statesecurities and blue sky laws). To the fullest extent permitted by law, anyattempted transfer of the Common Securities other than as set forth in theimmediately preceding sentence shall be void. The Administrative Trustees shallcause each Common Securities Certificate issued to the Depositor to contain alegend stating substantially “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT INCOMPLIANCE WITH APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT.”

 

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

 

SECTION 5.12.      *RestrictedLegends*.

 

(a)           EachPreferred Security Certificate shall bear a legend in substantially thefollowing form:

 

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

 

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

 

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

 

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

 

THE HOLDER OF THE PREFERRED SECURITIES REPRESENTED BYTHIS CERTIFICATE AGREES FOR THE BENEFIT OF THE TRUST AND THE DEPOSITOR THAT (A) SUCHPREFERRED 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 “QUALIFIEDPURCHASER” (AS DEFINED IN SECTION 2(a)(51) OF THE INVESTMENT COMPANY ACTOF 1940, AS AMENDED), AND (B) THE HOLDER WILL NOTIFY ANY PURCHASER OF ANYPREFERRED SECURITIES FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.

 

THE PREFERRED SECURITIES WILL BE ISSUED AND MAY BETRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATE LIQUIDATION AMOUNT OF NOT LESSTHAN $100,000. TO THE FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFEROF PREFERRED SECURITIES, OR ANY INTEREST THEREIN, IN A BLOCK HAVING ANAGGREGATE LIQUIDATION AMOUNT OF LESS THAN $100,000 AND MULTIPLES OF $1,000 INEXCESS THEREOF SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TOTHE FULLEST EXTENT PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BEDEEMED 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 SUCHPREFERRED SECURITIES, OR ANY INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREESHALL 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 IOF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (*“ERISA”*), OR SECTION 4975 OF THEINTERNAL REVENUE CODE OF 1986, AS AMENDED (THE *“CODE”*)(EACH A *“PLAN”*), OR AN ENTITYWHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’SINVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIREOR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER ORHOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TOHAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEEBENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLANTO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSONACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON ORENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCHPURCHASE.”

 

(b)           Theabove legend shall not be removed from any of the Preferred Securities Certificatesunless there is delivered to the Property Trustee and the Depositorsatisfactory evidence, which may include an opinion of counsel, as may bereasonably required to ensure that any future transfers thereof may be madewithout restriction under the provisions of the Securities Act and otherapplicable law.  Upon provision of suchsatisfactory evidence, one or more of the Administrative Trustees on behalf ofthe Trust shall execute and deliver to the Property Trustee, and the PropertyTrustee shall deliver, at the written direction of the Administrative Trusteesand the Depositor, Preferred Securities Certificates that do not bear thelegend.

 

SECTION 5.13.      *Form of Certificate of Authentication.*

 

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

 

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

 
| Dated: | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,  not in its individual capacity, but solely as Property  Trustee |
|--------|-------------------------------------------------------------------------------------------------------------|
|   |                                                                                                        |
|   |                                                                                                        |
|   | By:                                                                                                         |   |   |
|   |                                                                                                        | Authorized signatory |

 

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ARTICLE VI.

 

MEETINGS; VOTING; ACTS OF HOLDERS

 

SECTION 6.1.        *Noticeof Meetings*.

 

Notice of all meetings of the Holders of the PreferredSecurities, stating the time, place and purpose of the meeting, shall be givenby the Property Trustee pursuant to Section 10.8 to each Holder ofPreferred Securities, at such Holder’s registered address, at least fifteen(15) days and not more than ninety (90) days before the meeting. At any suchmeeting, any business properly before the meeting may be so considered whetheror not stated in the notice of the meeting. Any adjourned meeting may be heldas adjourned without further notice.

 

SECTION 6.2.        *Meetingsof Holders of the Preferred Securities*.

 

(a)           Noannual meeting of Holders is required to be held. The Property Trustee,however, shall call a meeting of the Holders of the Preferred Securities tovote on any matter upon the written request of the Holders of at least twentyfive percent (25%) in aggregate Liquidation Amount of the Outstanding PreferredSecurities and the Administrative Trustees or the Property Trustee may, at anytime in their discretion, call a meeting of the Holders of the PreferredSecurities to vote on any matters as to which such Holders are entitled tovote.

 

(b)           TheHolders of at least a Majority in Liquidation Amount of the PreferredSecurities, present in person or by proxy, shall constitute a quorum at anymeeting of the Holders of the Preferred Securities.

 

(c)           Ifa quorum is present at a meeting, an affirmative vote by the Holders present,in person or by proxy, holding Preferred Securities representing at least aMajority in Liquidation Amount of the Preferred Securities held by the Holderspresent, either in person or by proxy, at such meeting shall constitute theaction of the Holders of the Preferred Securities, unless this Trust Agreementrequires a lesser or greater number of affirmative votes.

 

SECTION 6.3.        *VotingRights*.

 

Holders shall be entitled to one vote for each $10,000of Liquidation Amount represented by their Outstanding Trust Securities inrespect 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 votethereat may vote by proxy, *provided,*that no proxy shall be voted at any meeting unlessit shall have been placed on file with the Administrative Trustees, or withsuch other officer or agent of the Trust as the Administrative Trustees maydirect, 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 inthe name of the Property Trustee or one or more officers of the PropertyTrustee. Only Holders of record shall be entitled to vote. When TrustSecurities are held jointly by several Persons, any one of them may vote at anymeeting in person or by proxy in respect of such Trust Securities, but if

 

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morethan one of them shall be present at such meeting in person or by proxy, andsuch joint owners or their proxies so present disagree as to any vote to becast, such vote shall not be received in respect of such Trust Securities. Aproxy purporting to be executed by or on behalf of a Holder shall be deemedvalid unless challenged at or prior to its exercise,and the burden of proving invalidity shall rest on the challenger. No proxyshall be valid more than three years after its date of execution.

 

SECTION 6.5.        *HolderAction by Written Consent*.

 

Any action that may be taken by Holders at a meetingmay be taken without a meeting and without prior notice if Holders holding atleast a Majority in Liquidation Amount of all Preferred Securities entitled tovote in respect of such action (or such lesser or greater proportion thereof asshall be required by any other provision of this Trust Agreement) shall consentto the action in writing; *provided,* that notice of such action is promptly provided tothe Holders of Preferred Securities that did not consent to such action.  Any action that may be taken by the Holdersof all the Common Securities may be taken without a meeting and without priornotice if such Holders shall consent to the action in writing.

 

SECTION 6.6.        *RecordDate for Voting and Other Purposes*.

 

Except as provided in Section 6.10(a), forthe purposes of determining the Holders who are entitled to notice of and tovote at any meeting or to act by written consent, or to participate in anydistribution on the Trust Securities in respect of which a record date is nototherwise provided for in this Trust Agreement, or for the purpose of any otheraction, the Administrative Trustees may from time to time fix a date, not morethan ninety (90) days prior to the date of any meeting of Holders or thepayment of a Distribution or other action, as the case may be, as a record datefor the determination of the identity of the Holders of record for suchpurposes.

 

SECTION 6.7.        *Actsof Holders*.

 

(a)           Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided or permitted by this Trust Agreement to be given, made or takenby Holders may be embodied in and evidenced by one or more instruments ofsubstantially similar tenor signed by such Holders in person or by an agentthereof duly appointed in writing; and, except as otherwise expressly providedherein, such action shall become effective when such instrument or instrumentsare delivered to an Administrative Trustee. Such instrument or instruments (andthe action embodied therein and evidenced thereby) are herein sometimesreferred to as the *“**Act”* ofthe Holders signing such instrument or instruments. Proof of execution of anysuch instrument or of a writing appointing any such agent shall be sufficientfor any purpose of this Trust Agreement and conclusive in favor of theTrustees, if made in the manner provided in this Section 6.7.

 

(b)           Thefact and date of the execution by any Person of any such instrument or writingmay be proved by the affidavit of a witness of such execution or by acertificate of a notary public or other officer authorized by law to takeacknowledgments of deeds, certifying that the individual signing suchinstrument or writing acknowledged to him the execution thereof. Where such executionis by a signer acting in a capacity other than such signer’s

 

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individualcapacity, such certificate or affidavit shall also constitute sufficient proofof such signer’s authority. The fact and date of the execution of any suchinstrument or writing, or the authority of the Person executing the same, mayalso be proved in any other manner that any Trustee receiving the same deemssufficient.

 

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

 

(d)           Anyrequest, demand, authorization, direction, notice, consent, waiver or other Actof the Holder of any Trust Security shall bind every future Holder of the sameTrust Security and the Holder of every Trust Security issued upon theregistration of transfer thereof or in exchange therefor or in lieu thereof inrespect of anything done, omitted or suffered to be done by the Trustees, theAdministrative Trustees or the Trust in reliance thereon, whether or notnotation of such action is made upon such Trust Security.

 

(e)           Withoutlimiting the foregoing, a Holder entitled hereunder to take any actionhereunder with regard to any particular Trust Security may do so with regard toall or any part of the Liquidation Amount of such Trust Security or by one ormore duly appointed agents each of which may do so pursuant to such appointmentwith regard to all or any part of such Liquidation Amount.

 

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

 

SECTION 6.8.        *Inspectionof Records*.

 

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

 

SECTION 6.9.        *Limitationson Voting Rights*.

 

(a)           Exceptas expressly provided in this Trust Agreement and in the Indenture and asotherwise required by law, no Holder of Preferred Securities shall have anyright to vote or in any manner otherwise control the administration, operationand management of the Trust or the obligations of the parties hereto, nor shallanything herein set forth, or contained in the terms of the SecuritiesCertificates, be construed so as to constitute the Holders from time to time aspartners or members of an association.

 

(b)           Solong as any Notes are held by the Property Trustee on behalf of the Trust, theProperty Trustee shall not (i) direct the time, method and place ofconducting any proceeding for any remedy available to the Note Trustee, orexercise any trust or power conferred on the Property Trustee with respect tothe Notes, (ii) waive any past default that may be waived under Section 5.13of the Indenture or waive compliance with any covenant or condition under Section 10.7of the Indenture, (iii) exercise any right to rescind or annul adeclaration that the principal of all the Notes shall be due and payable or (iv) consentto any amendment, modification or

 

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termination of theIndenture or the Notes, where such consent shall be required, without, in eachcase, obtaining the prior approval of the Holders of at least a Majority inLiquidation Amount of the Preferred Securities; *provided**,*thatwhere a consent under the Indenture would require the consent of each holder ofNotes (or each Holder of Preferred Securities) affected thereby, no suchconsent shall be given by the Property Trustee without the prior writtenconsent of each Holder of Preferred Securities. The Property Trustee shall notrevoke any action previously authorized or approved by a vote of the Holders ofthe Preferred Securities, except by a subsequent vote of the Holders of thePreferred Securities.  In addition toobtaining the foregoing approvals of the Holders of the Preferred Securities,prior to taking any of the foregoing actions, the Property Trustee shall, atthe expense of the Depositor, obtain an Opinion of Counsel experienced in suchmatters to the effect that such action shall not cause the Trust to be taxableas a corporation or classified as other than a grantor trust for United Statesfederal income tax purposes.

 

(c)           Ifany proposed amendment to the Trust Agreement provides for, or the Trusteesotherwise propose to effect, (i) any action that would adversely affect inany material respect the powers, preferences or special rights of the PreferredSecurities, whether by way of amendment to the Trust Agreement or otherwise or (ii) thedissolution, winding-up or termination of the Trust, other than pursuant to theterms of this Trust Agreement, then the Holders of Outstanding PreferredSecurities as a class will be entitled to vote on such amendment or proposaland such amendment or proposal shall not be effective except with the approvalof the Holders of at least a Majority in Liquidation Amount of the PreferredSecurities. Notwithstanding any other provision of this Trust Agreement, noamendment to this Trust Agreement may be made if, as a result of suchamendment, it would cause the Trust to be taxable as a corporation orclassified as other than a grantor trust for United States federal income taxpurposes.

 

SECTION 6.10.      *Accelerationof Maturity; Rescission of Annulment; Waivers of Past Defaults*.

 

(a)           Forso long as any Preferred Securities remain Outstanding, if, upon a Note Eventof Default, the Note Trustee fails or the holders of not less than twenty fivepercent (25%) in principal amount of the outstanding Notes fail to declare theprincipal of all of the Notes to be immediately due and payable, the Holders ofat least twenty five percent (25%) in Liquidation Amount of the PreferredSecurities then Outstanding shall have the right to make such declaration by anotice in writing to the Property Trustee, the Depositor and the NoteTrustee.  At any time after a declarationof acceleration with respect to the Notes has been made and before a judgmentor decree for payment of the money due has been obtained by the Note Trustee asprovided in the Indenture, the Holders of at least a Majority in LiquidationAmount of the Preferred Securities, by written notice to the Property Trustee,the Depositor and the Note Trustee, may rescind and annul such declaration andits consequences if:

 

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

 

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

 

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

 

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(C)           theprincipal of and any premium, if any, on any Notes that have become dueotherwise than by such declaration of acceleration and interest and AdditionalInterest thereon at the rate borne by the Notes; and

 

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

 

(ii)           allNote Events of Default, other than the non-payment of the principal of theNotes that has become due solely by such acceleration, have been cured orwaived as provided in Section 5.13 of the Indenture.

 

Upon receipt by the Property Trustee of written noticerequesting such an acceleration, or rescission and annulment thereof, byHolders of any part of the Preferred Securities, a record date shall beestablished for determining Holders of Outstanding Preferred Securitiesentitled to join in such notice, which record date shall be at the close ofbusiness on the day the Property Trustee receives such notice. The Holders onsuch record date, or their duly designated proxies, and only such Persons,shall be entitled to join in such notice, whether or not such Holders remainHolders after such record date; *provided*, that, unless such declaration of acceleration, orrescission and annulment, as the case may be, shall have become effective byvirtue of the requisite percentage having joined in such notice prior to theday that is ninety (90) days after such record date, such notice of declarationof acceleration, or rescission and annulment, as the case may be, shallautomatically and without further action by any Holder be canceled and of nofurther effect. Nothing in this paragraph shall prevent a Holder, or a proxy ofa Holder, from giving, after expiration of such ninety (90)-day period, a newwritten notice of declaration of acceleration, or rescission and annulmentthereof, as the case may be, that is identical to a written notice that hasbeen canceled pursuant to the proviso to the preceding sentence, in which eventa new record date shall be established pursuant to the provisions of this Section 6.10(a).

 

(b)           Forso long as any Preferred Securities remain Outstanding, to the fullest extentpermitted by law and subject to the terms of this Trust Agreement and theIndenture, upon a Note Event of Default specified in paragraph (a) or (b) ofSection 5.1 of the Indenture, any Holder of Preferred Securities shallhave the right to institute a proceeding directly against the Depositor, pursuantto Section 5.8 of the Indenture, for enforcement of payment to such Holderof any amounts payable in respect of Notes having an aggregate principal amountequal to the aggregate Liquidation Amount of the Preferred Securities of suchHolder.  Except as set forth in Section 6.10(a) andthis Section 6.10(b), the Holders of Preferred Securities shallhave no right to exercise directly any right or remedy available to the holdersof, or in respect of, the Notes.

 

(c)           Notwithstandingparagraphs (a) and (b) of this Section 6.10, the Holdersof 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 Eventof Default, except any Note Event of Default arising from the failure to payany principal of or any premium, if any, or interest on (including anyAdditional Interest) the Notes (unless such Note Event of Default has beencured and a sum sufficient to pay all matured installments of interest and allprincipal and premium, if any, on all Notes due otherwise than by accelerationhas been deposited with the Note Trustee) or a Note Event of Default in respectof a covenant or provision that under the Indenture cannot

 

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bemodified or amended without the consent of the holder of each outstandingNote.  Upon any such waiver, such NoteEvent of Default shall cease to exist and any Note Event of Default arisingtherefrom shall be deemed to have been cured for every purpose of theIndenture; but no such waiver shall affect any subsequent Note Event of Defaultor impair any right consequent thereon.

 

(d)           Notwithstandingparagraphs (a) and (b) of this Section 6.10, the Holdersof 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 Eventof Default and its consequences.  Uponsuch waiver, any such Event of Default shall cease to exist, and any Event ofDefault arising therefrom shall be deemed to have been cured, for every purposeof this Trust Agreement, but no such waiver shall extend to any subsequent orother Event of Default or impair any right consequent thereon.

 

(e)           TheHolders of a Majority in Liquidation Amount of the Preferred Securities shallhave the right to direct the time, method and place of conducting anyproceeding for any remedy available to the Property Trustee in respect of thisTrust Agreement or the Notes or exercising any trust or power conferred uponthe Property Trustee under this Trust Agreement; *provided**,*that,subject to Sections 8.5 and 8.7, the Property Trustee shall havethe right to decline to follow any such direction if the Property Trustee beingadvised by counsel determines that the action so directed may not lawfully betaken, or if the Property Trustee in good faith shall, by an officer orofficers of the Property Trustee, determine that the proceedings so directedwould be illegal or involve it in personal liability or be unduly prejudicialto the rights of Holders not party to such direction, and *provided, further**,*thatnothing in this Trust Agreement shall impair the right of the Property Trusteeto take any action deemed proper by the Property Trustee and which is notinconsistent with such direction.

 

ARTICLE VII.

REPRESENTATIONS AND WARRANTIES

 

SECTION 7.1.        *Representationsand Warranties of the Property Trustee and the Delaware Trustee.*

 

The Property Trustee and the Delaware Trustee, eachseverally on behalf of and as to itself, hereby represents and warrants for thebenefit of the Depositor and the Holders that:

 

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

 

(b)           theProperty Trustee has full corporate power, authority and legal right toexecute, deliver and perform its obligations under this Trust Agreement and hastaken all necessary action to authorize the execution, delivery and performanceby it of this Trust Agreement;

 

(c)           the Delaware Trustee is a national banking association, dulyformed and validly existing under the laws of the United States;

 

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(d)           theDelaware Trustee has full corporate power, authority and legal right toexecute, deliver and perform its obligations under this Trust Agreement and hastaken all necessary action to authorize the execution, delivery and performanceby it of this Trust Agreement;

 

(e)           thisTrust Agreement has been duly authorized, executed and delivered by theProperty Trustee and the Delaware Trustee and constitutes the legal, valid andbinding agreement of each of the Property Trustee and the Delaware Trusteeenforceable against each of them in accordance with its terms, subject toapplicable bankruptcy, insolvency, fraudulent transfer, reorganization,moratorium and similar laws affecting creditors’ rights generally and togeneral principles of equity;

 

(f)            theexecution, delivery and performance of this Trust Agreement have been dulyauthorized by all necessary corporate or other action on the part of theProperty Trustee and the Delaware Trustee and do not require any approval ofstockholders of the Property Trustee and the Delaware Trustee and suchexecution, delivery and performance will not (i) violate the RestatedOrganization Certificate or Articles of Association, as applicable, or By-lawsof the Property Trustee or the Delaware Trustee, (ii) violate anyprovision of, or constitute, with or without notice or lapse of time, a defaultunder, or result in the imposition of any lien on any properties included inthe Trust Property pursuant to the provisions of any indenture, mortgage,credit agreement, license or other agreement or instrument to which theProperty Trustee or the Delaware Trustee is a party or by which it is bound, or(iii) violate any applicable law, governmental rule or regulation ofthe United States or the State of Delaware, as the case may be, governing thebanking, trust or general powers of the Property Trustee or the DelawareTrustee or any order, judgment or decree applicable to the Property Trustee orthe Delaware Trustee;

 

(g)           neitherthe authorization, execution or delivery by the Property Trustee or theDelaware Trustee of this Trust Agreement nor the consummation of any of thetransactions by the Property Trustee or the Delaware Trustee contemplatedherein requires the consent or approval of, the giving of notice to, theregistration with or the taking of any other action with respect to anygovernmental authority or agency under any existing law of the United States orthe State of Delaware governing the banking, trust or general powers of theProperty Trustee or the Delaware Trustee, as the case may be; and

 

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

 

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SECTION 7.2.        *Representationsand Warranties of Depositor.*

 

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

 

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

 

(b)           theDepositor has full corporate power, authority and legal right to execute,deliver and perform its obligations under this Trust Agreement and has takenall necessary action to authorize the execution, delivery and performance by itof this Trust Agreement;

 

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

 

(d)           theSecurities Certificates issued at the Closing Date on behalf of the Trust havebeen duly authorized and will have been duly and validly executed, issued anddelivered by the applicable Trustees pursuant to the terms and provisions of,and in accordance with the requirements of, this Trust Agreement and theHolders will be, as of such date, entitled to the benefits of this TrustAgreement;

 

(e)           theexecution, delivery and performance of this Trust Agreement have been dulyauthorized by all necessary corporate or other action on the part of theDepositor and do not require any approval of stockholders of the Depositor andsuch execution, delivery and performance will not (i) violate the articlesor certificate of incorporation or by-laws (or other organizational documents)of the Depositor or (ii) violate any applicable law, governmental rule orregulation governing the Depositor or any material portion of its property orany order, judgment or decree applicable to the Depositor or any materialportion of its property;

 

(f)            neitherthe authorization, execution or delivery by the Depositor of this TrustAgreement nor the consummation of any of the transactions by the Depositorcontemplated herein requires the consent or approval of, the giving of noticeto, the registration with or the taking of any other action with respect to anygovernmental authority or agency under any existing law governing the Depositoror any material portion of its property; and

 

(g)           thereare no proceedings pending or, to the best of the Depositor’s knowledge,threatened against or affecting the Depositor or any material portion of itsproperty in any court or before any governmental authority, agency orarbitration board or tribunal that, individually or in the aggregate, wouldmaterially and adversely affect the Trust or would question the right, powerand authority of the Depositor, as the case may be, to enter into or performits obligations under this Trust Agreement.

 

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ARTICLE VIII.

 

THE TRUSTEES

 

SECTION 8.1.        *Numberof Trustees.*

 

The number of Trustees shall be five (5); *provided**,*that the Property Trustee and the Delaware Trustee may be the same Person, inwhich case the number of Trustees shall be four (4).  The number of Trustees may be increased ordecreased by Act of the Holder of the Common Securities subject to Sections8.2, 8.3, and 8.4.  Thedeath, resignation, retirement, removal, bankruptcy, incompetence or incapacityto perform the duties of a Trustee shall not operate to annul, dissolve orterminate the Trust.

 

SECTION 8.2.        *Property TrusteeRequired.*

 

There shall at all times be a Property Trusteehereunder with respect to the Trust Securities. The Property Trustee shall be acorporation organized and doing business under the laws of the United States orof any state thereof, authorized to exercise corporate trust powers, having acombined capital and surplus of at least fifty million dollars ($50,000,000),subject to supervision or examination by federal or state authority and havingan office within the United States.  Ifany such Person publishes reports of condition at least annually pursuant tolaw or to the requirements of its supervising or examining authority, then forthe purposes of this Section 8.2, the combined capital and surplusof such Person shall be deemed to be its combined capital and surplus as setforth in its most recent report of condition so published. If at any time theProperty Trustee shall cease to be eligible in accordance with the provisionsof this Section 8.2, it shall resign immediately in the manner andwith the effect hereinafter specified in this Article VIII.

 

SECTION 8.3.        *Delaware TrusteeRequired.*

 

(a)           Ifrequired by the Delaware Statutory Trust Act, there shall at all times be aDelaware Trustee with respect to the Trust Securities. The Delaware Trusteeshall either be (i) a natural person who is at least 21 years of age and aresident of the State of Delaware or (ii) a legal entity that has itsprincipal place of business in the State of Delaware, otherwise meets therequirements of applicable Delaware law and shall act through one or morepersons authorized to bind such entity. If at any time the Delaware Trustee shall cease to be eligible inaccordance with the provisions of this Section 8.3, it shall resignimmediately in the manner and with the effect hereinafter specified in this Article VIII.  The Delaware Trustee shall have the samerights, privileges and immunities as the Property Trustee.

 

(b)           TheDelaware Trustee shall not be entitled to exercise any powers, nor shall theDelaware Trustee have any of the duties and responsibilities, of the PropertyTrustee or the Administrative Trustees set forth herein. The Delaware Trusteeshall be one of the trustees of the Trust for the sole and limited purpose offulfilling the requirements of Section 3807 of the Delaware StatutoryTrust Act and for taking such actions as are required to be taken by a Delawaretrustee under the Delaware Statutory Trust Act. The duties (including fiduciary duties), liabilities and obligations ofthe Delaware Trustee shall be limited to (a) accepting legal

 

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

 

*SECTION 8.4.**       *Appointmentof Administrative Trustees.

 

(a)           Thereshall at all times be one or more Administrative Trustees hereunder withrespect to the Trust Securities. Each Administrative Trustee shall be either anatural person who is at least 21 years of age or a legal entity that shall actthrough one or more persons authorized to bind that entity.  Each of the individuals identified as an *“**Administrative Trustee”* in thepreamble of this Trust Agreement hereby accepts his or her appointment as such.

 

(b)           Exceptwhere a requirement for action by a specific number of Administrative Trusteesis expressly set forth in this Trust Agreement, any act required or permittedto 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 ofAdministrative Trustees shall occur, until such vacancy is filled by theappointment of an Administrative Trustee in accordance with Section 8.11,the Administrative Trustees in office, regardless of their number (andnotwithstanding any other provision of this Trust Agreement), shall have allthe powers granted to the Administrative Trustees and shall discharge all theduties imposed upon the Administrative Trustees by this Trust Agreement.

 

SECTION 8.5.        *Dutiesand Responsibilities of the Trustees.*

 

(a)           Therights, immunities, duties and responsibilities of the Trustees shall be asprovided by this Trust Agreement and there shall be no other duties (includingfiduciary duties) or obligations, express or implied, at law or in equity, ofthe Trustees; *provided, however*,that if an Event of Default known to the Property Trustee has occurred and iscontinuing, the Property Trustee shall, prior to the receipt of directions, ifany, from the Holders of at least a Majority in Liquidation Amount of thePreferred Securities, exercise such of the rights and powers vested in it bythis Trust Agreement, and use the same degree of care and skill in itsexercise, as a prudent person would exercise or use under the circumstances inthe conduct of such person’s own affairs. Notwithstanding the foregoing, no provision of this Trust Agreementshall require any of the Trustees to expend or risk its own funds or otherwiseincur any financial liability in the performance of any of its dutieshereunder, or in the exercise of any of its or their rights or powers, if it orthey shall have reasonable grounds for believing that repayment of such fundsor adequate indemnity against such risk or liability is not reasonably assuredto it. Whether or not herein expressly so provided, every provision of thisTrust Agreement relating to the conduct or affecting the liability of oraffording protection to the Trustees shall be subject to the provisions of thisSection 8.5.  Nothing in thisTrust Agreement shall be construed to release any Administrative Trustee fromliability for his or her own negligent action, negligent failure to act; or hisor her own willful misconduct.  To theextent that, at law or in equity, a Trustee has duties and liabilities relatingto the Trust or to the Holders, such Trustee shall not be liable to the Trustor to any Holder for such Trustee’s good faith reliance on the provisions ofthis Trust Agreement. The provisions of this Trust Agreement, to the extentthat they restrict the duties and

 

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liabilitiesof the Trustees otherwise existing at law or in equity, are agreed by theDepositor and the Holders to replace such other duties and liabilities of theTrustees.

 

(b)           Allpayments made by the Property Trustee or a Paying Agent in respect of the TrustSecurities shall be made only from the revenue and proceeds from the TrustProperty and only to the extent that there shall be sufficient revenue orproceeds from the Trust Property to enable the Property Trustee or a PayingAgent to make payments in accordance with the terms hereof. Each Holder, by itsacceptance of a Trust Security, agrees that it will look solely to the revenueand proceeds from the Trust Property to the extent legally available fordistribution to it as herein provided and that the Trustees are not personallyliable to it for any amount distributable in respect of any Trust Security orfor any other liability in respect of any Trust Security. This Section 8.5(b) doesnot limit the liability of the Trustees expressly set forth elsewhere in thisTrust Agreement.

 

(c)           Noprovisions of this Trust Agreement shall be construed to relieve the PropertyTrustee from liability with respect to matters that are within the authority ofthe 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 orjudgment made in good faith by an authorized officer of the Property Trustee,unless it shall be proved that the Property Trustee was negligent inascertaining the pertinent facts;

 

(ii)           theProperty Trustee shall not be liable with respect to any action taken oromitted to be taken by it in good faith in accordance with the direction of theHolders of at least a Majority in Liquidation Amount of the PreferredSecurities relating to the time, method and place of conducting any proceedingfor any remedy available to the Property Trustee hereunder or under theIndenture, or exercising any trust or power conferred upon the Property Trusteeunder this Trust Agreement;

 

(iii)          theProperty Trustee’s sole duty with respect to the custody, safe keeping andphysical preservation of the Notes and the Payment Account shall be to dealwith such Property in a similar manner as the Property Trustee deals withsimilar property for its own account, subject to the protections andlimitations on liability afforded to the Property Trustee under this TrustAgreement;

 

(iv)          theProperty Trustee shall not be liable for any interest on any money received byit except as it may otherwise agree in writing with the Depositor; and moneyheld by the Property Trustee need not be segregated from other funds held by itexcept in relation to the Payment Account maintained by the Property Trusteepursuant to Section 3.1 and except to the extent otherwise requiredby law; and

 

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

 

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SECTION 8.6.        *Noticesof Defaults and Extensions.*

 

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

 

(b)           Withinfive (5) Business Days after the receipt of notice of the Depositor’sexercise of its right to defer the payment of interest on the Notes pursuant tothe Indenture, the Property Trustee shall transmit, in the manner and to the extentprovided in Section 10.8, notice of such exercise to the Holdersand the Administrative Trustees, unless such exercise shall have been revoked.

 

(c)           TheProperty Trustee shall not be charged with knowledge of any Event of Defaultunless either (i) a Responsible Officer of the Property Trustee shall haveactual knowledge or (ii) the Property Trustee shall have received writtennotice thereof from the Depositor, an Administrative Trustee or a Holder.

 

(d)           TheProperty Trustee shall notify all Holders of the Preferred Securities of anynotice of default received with respect to the Notes.

 

SECTION 8.7.        *CertainRights of Property Trustee.*

 

Subject to the provisions of Section 8.5:

 

(a)           theProperty Trustee may conclusively rely and shall be protected in acting orrefraining from acting in good faith and in accordance with the terms hereofupon any resolution, Opinion of Counsel, certificate, written representation ofa 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 ofindebtedness or other paper or document believed by it to be genuine and tohave been signed or presented by the proper party or parties;

 

(b)           if(i) in performing its duties under this Trust Agreement the PropertyTrustee is required to decide between alternative courses of action, (ii) inconstruing any of the provisions of this Trust Agreement the Property Trusteefinds a provision ambiguous or inconsistent with any other provisions containedherein or (iii) the Property Trustee is unsure of the application of anyprovision of this Trust Agreement, then, except as to any matter as to whichthe Holders of the Preferred Securities are entitled to vote under the terms ofthis Trust Agreement, the Property Trustee shall deliver a notice to theDepositor requesting the Depositor’s written instruction as to the course ofaction to be taken and the Property Trustee shall take such action, or refrainfrom taking such action, as the Property Trustee shall be instructed in writingto take, or to refrain from taking, by the Depositor; *provided*,that if the Property Trustee does not receive such instructions of theDepositor within ten (10) Business Days after it has delivered such noticeor such reasonably shorter period of time set forth in such notice, theProperty Trustee may, but shall be under no duty to, take such action, orrefrain from taking such

 

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action, as the Property Trustee shall deem advisableand in the best interests of the Holders, in which event the Property Trusteeshall have no liability except for its own negligence, bad faith or willfulmisconduct;

 

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

 

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

 

(e)           theProperty Trustee shall have no duty to see to any recording, filing orregistration of any instrument (including any financing or continuationstatement or any filing under tax or securities laws) or any re-recording,re-filing or re-registration thereof;

 

(f)            theProperty Trustee may consult with counsel (which counsel may be counsel to theProperty Trustee, the Depositor or any of its Affiliates, and may include anyof its employees) and the advice of such counsel shall be full and completeauthorization and protection in respect of any action taken, suffered oromitted by it hereunder in good faith and in reliance thereon and in accordancewith such advice; the Property Trustee shall have the right at any time to seekinstructions concerning the administration of this Trust Agreement from anycourt of competent jurisdiction;

 

(g)           theProperty Trustee shall be under no obligation to exercise any of the rights orpowers vested in it by this Trust Agreement at the request or direction of anyof the Holders pursuant to this Trust Agreement, unless such Holders shall haveoffered to the Property Trustee reasonable security or indemnity against thecosts, expenses (including reasonable attorneys’ fees and expenses) andliabilities that might be incurred by it in compliance with such request ordirection, including reasonable advances as may be requested by the PropertyTrustee; *provided, however,* thatnothing contained in this Section 8.7(g) shall be construed torelieve the Property Trustee, upon the occurrence of an Event of Default, ofits obligation to exercise the rights and powers in it vested by this TrustAgreement; provided, further, that nothing contained in this Section 8.7(g) shallprevent the Property Trustee from exercising its rights under Section 8.11hereof;

 

(h)           theProperty Trustee shall not be bound to make any investigation into the facts ormatters 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, unlessrequested in writing to do so by one or more Holders, but the Property Trusteemay make such further inquiry or investigation into such facts or matters as itmay see fit, and, if the Property Trustee shall determine to make such inquiryor investigation, it shall be entitled to examine the books, records andpremises of the Depositor, personally or by agent or attorney;

 

(i)            the Property Trustee may execute any of the trusts or powershereunder or perform any duties hereunder either directly or by or through itsagents, attorneys,

 

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custodians or nominees and the Property Trustee shallnot be responsible for any negligence or misconduct on the part of any suchagent, attorney, custodian or nominee appointed with due care by it hereunder;

 

(j)            wheneverin the administration of this Trust Agreement the Property Trustee shall deemit desirable to receive instructions with respect to enforcing any remedy orright hereunder, the Property Trustee (i) may request instructions fromthe Holders (which instructions may only be given by the Holders of the sameproportion in Liquidation Amount of the Trust Securities as would be entitledto direct the Property Trustee under this Trust Agreement in respect of suchremedy, right or action), (ii) may refrain from enforcing such remedy orright or taking such other action until such instructions are received and (iii) shallbe protected in acting in accordance with such instructions;

 

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

 

(l)            withoutprejudice to any other rights available to the Property Trustee underapplicable law, when the Property Trustee incurs expenses or renders servicesin connection with a Bankruptcy Event, such expenses (including legal fees andexpenses of its agents and counsel) and the compensation for such services areintended to constitute expenses of administration under any bankruptcy law orlaw relating to creditors rights generally; and

 

(m)          wheneverin the administration of this Trust Agreement the Property Trustee shall deemit desirable that a matter be proved or established prior to taking, sufferingor omitting any action hereunder, the Property Trustee (unless other evidencebe herein specifically prescribed) may, in the absence of bad faith on itspart, request and rely on an Officers’ Certificate which, upon receipt of suchrequest, shall be promptly delivered by the Depositor.

 

No provision of this Trust Agreement shall be deemedto impose any duty or obligation on any Trustee to perform any act or acts orexercise any right, power, duty or obligation conferred or imposed on it, inany jurisdiction in which it shall be illegal, or in which such Person shall beunqualified or incompetent in accordance with applicable law, to perform anysuch act or acts, or to exercise any such right, power, duty or obligation.

 

*SECTION 8.8.**       *Delegationof Power.

 

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

 

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SECTION 8.9.        *May HoldSecurities.*

 

Any Trustee or any other agent of any Trustee or theTrust, in its individual or any other capacity, may become the owner or pledgeeof 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 werenot an Trustee or such other agent.

 

SECTION 8.10.      *Compensation;Reimbursement; Indemnity.*

 

The Depositor agrees:

 

(a)           topay to the Trustees from time to time such reasonable compensation for allservices rendered by them hereunder as may be agreed by the Depositor and theTrustees from time to time (which compensation shall not be limited by anyprovision of law in regard to the compensation of a trustee of an expresstrust);

 

(b)           toreimburse the Trustees upon request for all reasonable expenses, disbursementsand advances incurred or made by the Trustees in accordance with any provisionof this Trust Agreement (including the reasonable compensation and the expensesand disbursements of their agents and counsel), except any such expense,disbursement or advance as may be attributable to their gross negligence, badfaith or willful misconduct; and

 

(c)           tothe fullest extent permitted by applicable law, to indemnify and hold harmless (i) eachTrustee, (ii) any Affiliate of any Trustee, (iii) any officer,director, shareholder, employee, representative or agent of any Trustee or anyAffiliate of any Trustee and (iv) any employee or agent of the Trust(referred to herein as an *“IndemnifiedPerson”*) from and against any loss, damage, liability, tax (otherthan 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 naturewhatsoever incurred without negligence, bad faith or willful misconduct on itspart, arising out of or in connection with the acceptance or administration ofthe Trust hereunder, including the advancement of funds to cover the costs andexpenses of defending itself against any claim or liability in connection withthe exercise or performance of any of its powers or duties hereunder.

 

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

 

No Trustee may claim any Lien on any Trust Propertywhether before or after termination of the Trust as a result of any amount duepursuant to this Section 8.10.

 

To the fullest extent permitted by law, in no eventshall 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 beenadvised of the likelihood of such loss or damage and regardless of the form ofaction.

 

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In no event shall the Property Trustee and theDelaware Trustee be liable for any failure or delay in the performance of itsobligations 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, restrictor prohibit the providing of the services contemplated by this Trust Agreement.

 

SECTION 8.11.      *Resignationand Removal; Appointment of Successor.*

 

(a)           Noresignation or removal of any Trustee and no appointment of a successor Trusteepursuant to this Article VIII shall become effective until theacceptance of appointment by the successor Trustee in accordance with theapplicable requirements of Section 8.12.

 

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

 

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

 

(d)           If any Trustee shall resign, be removed orbecome incapable of acting as Trustee, or if a vacancy shall occur in theoffice of any Trustee for any reason, at a time when no Event of Default shallhave occurred and be continuing, the Holder of the Common Securities, by Act ofthe Holder of the Common Securities, shall promptly appoint a successor Trusteeor Trustees, and such successor Trustee and the retiring Trustee shall complywith the applicable requirements of Section 8.12.  If the Property Trustee or the DelawareTrustee shall resign, be removed or become incapable of continuing to act asthe Property Trustee or the Delaware Trustee, as the case may be, at a timewhen an Event of Default shall have occurred and be continuing, the Holders ofthe Preferred Securities, by Act of the Holders of a Majority in LiquidationAmount of the Preferred Securities, shall promptly appoint a successor PropertyTrustee or Delaware Trustee, and such successor Property Trustee or DelawareTrustee and the retiring Property Trustee or Delaware Trustee shall comply withthe applicable requirements of Section 8.12.  If an Administrative Trustee shall resign, beremoved or become incapable of acting as Administrative Trustee, at a time whenan Event of Default shall have occurred and be continuing, the Holder of theCommon Securities by Act of the Holder of Common Securities shall promptlyappoint a successor Administrative Trustee and such successor AdministrativeTrustee and the retiring Administrative Trustee shall comply with the applicablerequirements of Section 8.12. If no successor Trustee shall have been so appointed by the Holder ofthe Common Securities or Holders of the Preferred Securities, as the case maybe, and accepted appointment in the manner required by Section 8.12within thirty (30) days after the giving of a notice of resignation by aTrustee, the removal of a Trustee, or a Trustee becoming incapable of acting assuch Trustee, any Holder who has been a Holder of Preferred Securities for atleast six

 

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(6) months may, on behalf of himself and all others similarlysituated, and any resigning Trustee may, in each case, at the expense of theDepositor, petition any court of competent jurisdiction for the appointment ofa successor Trustee**.**

 

(e)           TheDepositor shall give notice of each resignation and each removal of theProperty Trustee or the Delaware Trustee and each appointment of a successorProperty Trustee or Delaware Trustee to all Holders in the manner provided in Section 10.8.  Each notice shall include the name of thesuccessor Property Trustee or Delaware Trustee and the address of its CorporateTrust Office if it is the Property Trustee.

 

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

 

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

 

SECTION 8.12.      *Acceptanceof Appointment by Successor.*

 

(a)           Incase of the appointment hereunder of a successor Trustee, each successorTrustee shall execute and deliver to the Depositor and to the retiring Trusteean instrument accepting such appointment, and thereupon the resignation orremoval of the retiring Trustee shall become effective and each such successorTrustee, without any further act, deed or conveyance, shall become vested withall the rights, powers, trusts and duties of the retiring Trustee; but, onrequest of the Trust or any successor Trustee such retiring Trustee shall, uponpayment of its charges, duly assign, transfer and deliver to such successorTrustee all Trust Property, all proceeds thereof and money held by suchretiring Trustee hereunder with respect to the Trust Securities and the Trust.

 

(b)           Uponrequest of any such successor Trustee, the Trust (or the retiring Trustee ifrequested by the Depositor) shall execute any and allinstruments for more fully and certainly vesting in and confirming to suchsuccessor Trustee all such rights, powers and trusts referred to in thepreceding paragraph.

 

(c)           Nosuccessor Trustee shall accept its appointment unless at the time of suchacceptance 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 theDelaware Trustee may be merged or converted or with which it may beconsolidated, or any Person resulting from any merger, conversion orconsolidation to which such Trustee shall be a party, or any Person succeedingto

 

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

 

SECTION 8.14.      *Not Responsible forRecitals Issuance of Securities and Representations.*

 

The recitals contained herein and in the Securities Certificates shallbe taken as the statements of the Trust and the Depositor, and the Trustees donot assume any responsibility for their correctness.  The Trustees make no representations as tothe title to, or value or condition of, the property of the Trust or any partthereof, nor as to the validity or sufficiency of thisTrust Agreement, the Notes or the Trust Securities.  The Trustees shall not be accountable for theuse or application by the Depositor of the proceeds of the Notes.  It is expressly understood and agreed by theparties hereto that insofar as any document, agreement or certificate isexecuted on behalf of the Trust by any Trustee (i) such document,agreement or certificate is executed and delivered by such Trustee, not in itsindividual capacity but solely as Trustee under this Trust Agreement in theexercise of the powers and authority conferred and vested in it, (ii) eachof the representations, undertakings and agreements made on the part of theTrust is made and intended not as representations, warranties, covenants,undertakings and agreements by any Trustee in its individual capacity but ismade and intended for the purpose of binding only the Trust and (iii) underno circumstances shall any Trustee in its individual capacity be personallyliable for the payment of any indebtedness or expenses of the Trust or be liablefor the breach or failure of any obligation, representation, warranty orcovenant made or undertaken by the Trust under this Trust Agreement or anyother document, agreement or certificate.

 

SECTION 8.15.      *Property Trustee May FileProofs of Claim.*

 

(a)           Incase of any Bankruptcy Event (or event that with the passage of time wouldbecome a Bankruptcy Event) relative to the Trust or any other obligor upon theTrust Securities or the property of the Trust or of such other obligor or theircreditors, the Property Trustee (irrespective of whether any Distributions onthe Trust Securities shall then be due and payable and irrespective of whetherthe Property Trustee shall have made any demand on the Trust for the payment ofany past due Distributions) shall be entitled and empowered, to the fullestextent permitted by law, by intervention in such proceeding or otherwise:

 

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

 

(ii)           to collect and receive any monies or other property payableor 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 ishereby authorized by each Holder to make such payments to the Property Trusteeand, in the event the Property Trustee shall consent to the making of suchpayments directly to the Holders, to pay to the Property Trustee first anyamount due it for the reasonable compensation, expenses, disbursements andadvances of the Property Trustee, its agents and counsel, and any other amountsdue the Property Trustee.

 

(b)           Nothingherein contained shall be deemed to authorize the Property Trustee to authorizeor consent to or accept or adopt on behalf of any Holder any plan ofreorganization, arrangement, adjustment or compensation affecting the TrustSecurities or the rights of any Holder thereof or to authorize the PropertyTrustee to vote in respect of the claim of any Holder in any such proceeding.

 

*SECTION 8.16.**     *Reportsto the Property Trustee.

 

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

 

(b)           TheDepositor shall furnish (i) to the Property Trustee; (ii) Cohen Bros. &Company, 450 Park, 23rd Floor, New York, NY 10022 orsuch other address as designated by Cohen Bros. & Company); and (iii) anyOwner of the Preferred Securities reasonably identified to the Depositor andthe Trust (which identification may be made either by such Owner or by CohenBros. & Company) a duly completed and executed certificatesubstantively and substantially in the form attached hereto as Exhibit G,including the financial statements referenced in such Exhibit, whichcertificate and financial statements shall be so furnished by the Depositor notlater than forty five (45) days after the end of each of the first three fiscalquarters 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 theOperative Documents.

 

ARTICLE IX.

 

TERMINATION, LIQUIDATION AND MERGER

 

SECTION 9.1.        *Dissolution Upon Expiration Date.*

 

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

 

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SECTION 9.2.        *EarlyTermination.*

 

The first to occur of any of the following events isan *“**Early Termination Event”*, uponthe occurrence of which the Trust shall be dissolved:

 

(a)           theoccurrence of a Bankruptcy Event in respect of, or the dissolution orliquidation of, the Depositor, in its capacity as the Holder of the CommonSecurities, unless the Depositor shall have transferred the Common Securitiesas provided by Section 5.11, in which case this provision shallrefer instead to any such successor Holder of the Common Securities;

 

(b)           thewritten direction to the Property Trustee from the Holder of the CommonSecurities at any time to dissolve the Trust and, after satisfaction of anyliabilities of the Trust as required by applicable law, to distribute the Notesto Holders in exchange for the Preferred Securities (which direction isoptional and wholly within the discretion of the Holder of the CommonSecurities);

 

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

 

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

 

SECTION 9.3.        *Termination.*

 

The respective obligations and responsibilities of theTrustees and the Trust shall terminate upon the latest to occur of thefollowing: (a) the distribution by the Property Trustee to Holders of allamounts required to be distributed hereunder upon the liquidation of the Trustpursuant to Section 9.4, or upon the redemption of all of the TrustSecurities pursuant to Section 4.2; (b) the satisfaction ofany expenses owed by the Trust; and (c) the discharge of alladministrative duties of the Administrative Trustees, including the performanceof any tax reporting obligations with respect to the Trust or the Holders.

 

SECTION 9.4.        *Liquidation.*

 

(a)           Ifan Early Termination Event specified in Section 9.2(a), (b) or(d) occurs or upon the Expiration Date, the Trust shall beliquidated by the Property Trustee as expeditiously as the Property Trusteeshall determine to be possible by distributing, after satisfaction ofliabilities to creditors of the Trust as provided by applicable law, to eachHolder a Like Amount of Notes, subject to Section 9.4(d). Notice ofliquidation 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 ofTrust Securities at such Holder’s address appearing in the Securities Register.All such notices of liquidation shall:

 

(i)            state the Liquidation Date;

 

(ii)           statethat from and after the Liquidation Date, the Trust Securities will no longerbe deemed to be Outstanding and (subject to Section 9.4(d)) anySecurities

 

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

 

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

 

(b)           Exceptwhere Section 9.2(c) or 9.4(d) applies, in orderto effect the liquidation of the Trust and distribution of the Notes toHolders, the Property Trustee, either itself acting as exchange agent orthrough the appointment of a separate exchange agent, shall establish a recorddate for such distribution (which shall not be more than forty five (45) daysprior to the Liquidation Date nor prior to the date on which notice of suchliquidation is given to the Holders) and establish such procedures as it shalldeem appropriate to effect the distribution of Notes in exchange for theOutstanding Securities Certificates.

 

(c)           Exceptwhere Section 9.2(c) or 9.4(d) applies, after theLiquidation Date, (i) the Trust Securities will no longer be deemed to beOutstanding, (ii) certificates representing a Like Amount of Notes will beissued to Holders of Securities Certificates, upon surrender of suchCertificates to the exchange agent for exchange, (iii) the Depositor shalluse its best efforts to have the Notes listed on the New York Stock Exchange oron such other exchange, interdealer quotation system or self-regulatoryorganization on which the Preferred Securities are then listed, if any, (iv) SecuritiesCertificates not so surrendered for exchange will be deemed to represent a LikeAmount of Notes bearing accrued and unpaid interest in an amount equal to theaccumulated and unpaid Distributions on such Securities Certificates until suchcertificates are so surrendered (and until such certificates are sosurrendered, no payments of interest or principal will be made to Holders ofSecurities Certificates with respect to such Notes) and (v) all rights ofHolders holding Trust Securities will cease, except the right of such Holdersto receive Notes upon surrender of Securities Certificates.

 

(d)           Notwithstandingthe other provisions of this Section 9.4, if distribution of theNotes in the manner provided herein is determined by the Property Trustee notto be permitted or practical, the Trust Property shall be liquidated, and theTrust shall be wound up by the Property Trustee in such manner as the PropertyTrustee determines.  In such event,Holders will be entitled to receive out of the assets of the Trust availablefor distribution to Holders, after satisfaction of liabilities to creditors ofthe Trust as provided by applicable law, an amount equal to the LiquidationAmount per Trust Security plus accumulated and unpaid Distributions thereon tothe date of payment (such amount being the *“**LiquidationDistribution”*). If, upon any such winding up the LiquidationDistribution can be paid only in part because the Trust has insufficient assetsavailable to pay in full the aggregate Liquidation Distribution, then, subjectto the next succeeding sentence, the amounts payable by the Trust on the TrustSecurities shall be paid on a *pro rata* basis (based upon Liquidation Amounts). The Holderof the Common Securities will be entitled to receive Liquidation Distributionsupon any such winding up *pro rata* (based upon Liquidation Amounts) with Holders ofall Trust Securities, except that, if an Event of Default has occurred and iscontinuing, the Preferred Securities shall have a priority over the CommonSecurities 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 andassets 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 ofthe Holders of the Preferred Securities, the Trust may merge with or into,consolidate, amalgamate, or be replaced by or convey, transfer or lease itsproperties and assets substantially as an entirety to a trust organized as suchunder the laws of any State; *provided**,*that:

 

(a)           suchsuccessor entity either (i) expressly assumes all of the obligations ofthe Trust under this Trust Agreement with respect to the Preferred Securitiesor (ii) substitutes for the Preferred Securities other securities havingsubstantially the same terms as the Preferred Securities (such otherSecurities, the *“Successor Securities”*)so long as the Successor Securities have the same priority as the PreferredSecurities with respect to distributions and payments upon liquidation,redemption and otherwise;

 

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

 

(c)           ifthe Preferred Securities or the Notes are rated, such merger, consolidation,amalgamation, replacement, conveyance, transfer or lease does not cause thePreferred Securities or the Notes (including any Successor Securities) to bedowngraded by any nationally recognized statistical rating organization thatthen assigns a rating to the Preferred Securities or the Notes;

 

(d)           thePreferred Securities are listed, or any Successor Securities will be listedupon notice of issuance, on any national securities exchange or interdealerquotation 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, preferencesand privileges of the Holders of the Preferred Securities (including anySuccessor Securities) in any material respect;

 

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

 

(g)           priorto such merger, consolidation, amalgamation, replacement, conveyance, transferor lease, the Depositor has received an Opinion of Counsel to the effect that (i) suchmerger, consolidation, amalgamation, replacement, conveyance, transfer or leasedoes not adversely affect the rights, preferences and privileges of the Holdersof the Preferred Securities (including any Successor Securities) in anymaterial respect; (ii) following such merger, consolidation, amalgamation,replacement, conveyance, transfer or lease, neither the Trust nor suchsuccessor entity will be required to register as an “investment company” underthe Investment Company Act and (iii) following such merger, consolidation,amalgamation, replacement, conveyance, transfer

 

55

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

 

(h)           the Depositor or its permitted transferee owns all of thecommon 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 anyother Person or permit any other entity to consolidate, amalgamate, merge withor into, or replace, the Trust if such consolidation, amalgamation, merger,replacement, conveyance, transfer or lease would cause the Trust or thesuccessor entity to be taxable as a corporation or classified as other than agrantor trust for United States federal income tax purposes or cause the Notesto be treated as other than indebtedness of the Depositor for United Statesfederal income tax purposes.

 

ARTICLE X.

 

MISCELLANEOUS PROVISIONS

 

SECTION 10.1.      *Limitationof Rights of Holders.*

 

Except as set forth in Section 9.2, thedeath, bankruptcy, termination, dissolution or incapacity of any Person havingan interest, beneficial or otherwise, in Trust Securities shall not operate toterminate this Trust Agreement, nor annul, dissolve or terminate the Trust norentitle the legal representatives or heirs of such Person or any Holder forsuch Person, to claim an accounting, take any action or bring any proceeding inany court for a partition or winding up of the arrangements contemplatedhereby, nor otherwise affect the rights, obligations and liabilities of theparties hereto or any of them.

 

SECTION 10.2.      *AgreedTax Treatment of Trust and Trust Securities.*

 

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

 

SECTION 10.3.      *Amendment.*

 

(a)           ThisTrust Agreement may be amended from time to time by the Property Trustee, theAdministrative Trustees and the Holder of all the Common Securities, withoutthe consent of any Holder of the Preferred Securities, (i) to cure anyambiguity, correct or supplement any provision herein that may be defective orinconsistent with any other provision

 

56

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herein, or to makeor amend any other provisions with respect to matters or questions arisingunder this Trust Agreement, which shall not be inconsistent with the otherprovisions of this Trust Agreement, (ii) to modify, eliminate or add toany provisions of this Trust Agreement to such extent as shall be necessary toensure that the Trust will neither be taxable as a corporation nor beclassified as other than a grantor trust for United States federal income taxpurposes at all times that any Trust Securities are Outstanding or to ensurethat the Notes are treated as indebtedness of the Depositor for United Statesfederal income tax purposes, or to ensure that the Trust will not be requiredto register as an “investment company” under the Investment Company Act or (iii) toadd to the covenants, restrictions or obligations of the Depositor; *provided*,that in the case of clauses (i), (ii) or (iii), such action shall notadversely affect in any material respect the interests of any Holder.

 

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

 

(c)           Notwithstandingany other provision of this Trust Agreement, without the consent of eachHolder, this Trust Agreement may not be amended to (i) change the accrualrate, amount, currency or timing of any Distribution on or the redemption priceof the Trust Securities or otherwise adversely affect the amount of anyDistribution or other payment required to be made in respect of the TrustSecurities as of a specified date, (ii) restrict or impair the right of aHolder to institute suit for the enforcement of any such payment on or aftersuch date, (iii) reduce the percentage of aggregate Liquidation Amount ofOutstanding Preferred Securities, the consent of whose Holders is required forany such amendment, or the consent of whose Holders is required for any waiverof compliance with any provision of this Trust Agreement or of defaultshereunder and their consequences provided for in this Trust Agreement; (iv) impairor adversely affect the rights and interests of the Holders in the TrustProperty, 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)           Notwithstandingany other provision of this Trust Agreement, no Trustee shall enter into orconsent to any amendment to this Trust Agreement that would cause the Trust tobe taxable as a corporation or to be classified as other than a grantor trustfor United States federal income tax purposes or that would cause the Notes tofail or cease to be treated as indebtedness of the Depositor for United Statesfederal income tax purposes or that would cause the Trust to fail or cease toqualify for the exemption from status (or from any requirement to register) asan “investment company” under the Investment Company Act.

 

57

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(e)           Ifany amendment to this Trust Agreement is made, the Administrative Trustees orthe Property Trustee shall promptly provide to the Depositor and the NoteTrustee a copy of such amendment.

 

(f)            NoTrustee shall be required to enter into any amendment to this Trust Agreementthat affects its own rights, duties or immunities under this TrustAgreement.  The Trustees shall beentitled to receive an Opinion of Counsel and an Officers’ Certificate statingthat any amendment to this Trust Agreement is in compliance with this TrustAgreement and all conditions precedent herein provided for relating to suchaction have been met.

 

(g)           Noamendment or modification to this Trust Agreement that adversely affects in anymaterial respect the rights, duties, liabilities, indemnities or immunities ofthe Delaware Trustee hereunder shall be permitted without the prior writtenconsent of the Delaware Trustee.

 

SECTION 10.4.      *Separability.*

 

If any provision in this Trust Agreement or in theSecurities Certificates shall be invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions shall not inany way be affected or impaired thereby, and there shall be deemed substitutedfor the provision at issue a valid, legal and enforceable provision as similaras possible to the provision at issue.

 

SECTION 10.5.      *GoverningLaw.*

 

**THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OFEACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THE TRUSTEES WITH RESPECT TOTHIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BE CONSTRUED AND ENFORCEDIN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUTREFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS.**

 

SECTION 10.6.      *Successors.*

 

This Trust Agreement shall be binding upon and shallinure to the benefit of any successor to the Depositor, the Trust and anyTrustee, including any successor by operation of law. Except in connection witha transaction involving the Depositor that is permitted under Article VIIIof the Indenture and pursuant to which the assignee agrees in writing toperform the Depositor’s obligations hereunder, the Depositor shall not assignits obligations hereunder.

 

SECTION 10.7.      *Headings.*

 

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

 

SECTION 10.8.      *Reports,Notices and Demands**.*

 

(a)           Anyreport, notice, demand or other communication that by any provision of thisTrust Agreement is required or permitted to be given or served to or upon anyHolder or the

 

58

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Depositor may begiven or served in writing delivered in person, or by reputable, overnightcourier, by telecopy or by deposit thereof, first-class postage prepaid, in theUnited States mail, addressed, (a) in the case of a Holder of PreferredSecurities, to such Holder as such Holder’s name and address may appear on theSecurities Register; and (b) in the case of the Holder of all the CommonSecurities or the Depositor, to **GKKCapital LP, 420 Lexington Avenue, New York, NY 10170, Attention:  Gregory F. Hughes, with a copy to CliffordChance 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 Holderof all the Common Securities or the Depositor, as the case may be, to theProperty Trustee. Such report, notice, demand or other communication to or upona Holder or the Depositor shall be deemed to have been given when received inperson, within one (1) Business Day following delivery by overnightcourier, when telecopied with receipt confirmed, or within three (3) BusinessDays following delivery by mail, except that if a notice or other document isrefused delivery or cannot be delivered because of a changed address of whichno notice was given, such notice or other document shall be deemed to have beendelivered on the date of such refusal or inability to deliver.

 

(b)           Anynotice, demand or other communication that by any provision of this TrustAgreement is required or permitted to be given or served to or upon theProperty Trustee, the Delaware Trustee, the Administrative Trustees or theTrust shall be given in writing by deposit thereof, first-class postageprepaid, in the U.S. mail, personal delivery or facsimile transmission,addressed to such Person as follows: (i) with respect to the PropertyTrustee to JPMorgan Chase Bank, National Association, 600 Travis, 50thFloor, Houston, Texas 77002, Attention: Institutional Trust Services—Gramercy Capital Trust I, facsimileno. (713) 216-2101, (ii) with respect to the Delaware Trustee, to ChaseBank 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) withrespect to the Administrative Trustees, to them at the address above fornotices to the Depositor, marked “Attention: Administrative Trustees of **Gramercy** CapitalTrust I”, and (iv) with respect to the Trust, toits principal executive office specified in Section 2.2, with acopy to the Property Trustee. Such notice, demand or other communication to orupon the Trust, the Property Trustee or the Administrative Trustees shall bedeemed to have been sufficiently given or made only upon actual receipt of thewriting by the Trust, the Property Trustee or the Administrative Trustees.

 

SECTION 10.9.      *AgreementNot to Petition.*

 

Each of the Trustees and the Depositor agree for thebenefit of the Holders that, until at least one year and one day after theTrust has been terminated in accordance with Article IX, they shallnot file, or join in the filing of, a petition against the Trust under any BankruptcyLaw or otherwise join in the commencement of any proceeding against the Trustunder 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 ofthe Depositor, it shall file an answer with the applicable bankruptcy court orotherwise properly contest the filing of such petition by the Depositor againstthe Trust or the commencement of such action and raise the defense that theDepositor has agreed in writing not to take such action and should be estoppedand precluded therefrom and such other defenses, if any, as counsel for theProperty Trustee or the Trust may assert.

 

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*SECTION 10.10.**   *Counterparts.  *This instrument may be executed in any number of counterparts, each ofwhich so executed shall be deemed to be an original, but all such counterpartsshall together constitute but one and the same instrument.*

 

**[REMAINDEROF THIS PAGE INTENTIONALLY LEFT BLANK]**

 

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IN WITNESS WHEREOF, the parties hereto have executedthis Amended and Restated Trust Agreement as of the day and year first abovewritten.

 
|                                                                                | 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

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Exhibit A

 

**CERTIFICATE OF TRUST**

**OF**

**GRAMERCY CAPITAL TRUST I**

** **

This Certificate of Trustof **Gramercy** CapitalTrust I (the *“Trust”*) is beingduly 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 etseq.) (the  *“Act”*).

 

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

 

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

 

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

 

IN WITNESS WHEREOF, theundersigned 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

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**Exhibit B**

** **

**[FORM OF COMMON SECURITIES CERTIFICATE]**

** **

**THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACTOF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLESECURITIES LAWS AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERREDEXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION.  THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPTIN 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 $1,000per Common Security)**

** **

**Gramercy** Capital Trust I, astatutory 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 undividedcommon beneficial interests in the assets of the Trust and designated the **Gramercy******Capital Trust I Floating Rate CommonSecurities (liquidation amount $1,000 per Common Security) (the *“Common Securities”*). Except in accordancewith Section 5.11 of the Trust Agreement (as defined below), theCommon Securities are not transferable and, to the fullest extent permitted bylaw, any attempted transfer hereof other than in accordance therewith shall bevoid. The designations, rights, privileges, restrictions, preferences and otherterms and provisions of the Common Securities are set forth in, and thiscertificate and the Common Securities represented hereby are issued and shallin all respects be subject to the terms and provisions of, the Amended andRestated Trust Agreement of the Trust, dated as of May 20, 2005 as thesame may be amended from time to time (the *“TrustAgreement”*), among **GKKCapital LP****,** asDepositor, JPMorgan Chase Bank, National Association, as Property Trustee,Chase Bank USA, National Association, as Delaware Trustee, the AdministrativeTrustees 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 withoutcharge upon written request to the Trust at its principal place of business orregistered office.

 

B-1

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Upon receipt of thiscertificate, the Holder is bound by the Trust Agreement and is entitled to thebenefits thereunder.

 

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

 

Terms used but notdefined 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 theTrust this certificate this       day of                        ,200     .

 

 
|   | **GRAMERCY**** **CAPITAL TRUST I |
|--------|---------------------------------------|
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   |                                  | Name:  Marc  Holliday |   |
|   |                                  | *Administrative  Trustee* |   |

 

B-2

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**Exhibit C**

** **

**[FORM OF PREFERRED SECURITIES CERTIFICATE]**

** **

“**[IF THISSECURITY IS A GLOBAL SECURITY INSERT:** THIS PREFERRED SECURITY ISA GLOBAL SECURITY WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTERREFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”)OR A NOMINEE OF DTC.  THIS PREFERREDSECURITY IS EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF APERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCESDESCRIBED 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 ANOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BEREGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

 

UNLESS THIS PREFERREDSECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO GRAMERCY CAPITAL TRUST I OR ITS AGENTFOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITYISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAMEAS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON ISMADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY ANAUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FORVALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTEREDOWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.**]**

 

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

 

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

 

THE PREFERRED SECURITIESWILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING AN AGGREGATELIQUIDATION AMOUNT OF NOT LESS THAN

 

C-1

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

 

THE HOLDER OF THISSECURITY, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE HEREOF OR THEREOF ALSOAGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUALRETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THEEMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975OF 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 ANYPLAN’S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANYPLAN MAY ACQUIRE OR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN.ANY PURCHASER OR HOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREINWILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT ITIS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OFERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, ATRUSTEE 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 ORPLAN TO FINANCE SUCH PURCHASE.

 

C-2

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| **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, astatutory trust created under the laws of the State of Delaware (the *“Trust”*), hereby certifies that                        ,a                 (the*“Holder”*) is the registered ownerof [                ]Preferred Securities [*if the PreferredSecurity is a Global Security, then insert –*or such other number ofPreferred Securities represented hereby as may be set forth in the records ofthe Securities Registrar hereinafter referred to in accordance with the TrustAgreement (as defined below)] of the Trust representing an undivided preferredbeneficial interest in the assets of the Trust and designated the **Gramercy******Capital Trust I Floating Rate PreferredSecurities, (liquidation amount $1,000 per Preferred Security) (the *“Preferred Securities”*). Subject to theterms of the Trust Agreement (as defined below), the Preferred Securities aretransferable on the books and records of the Trust, in person or by a dulyauthorized attorney, upon surrender of this certificate duly endorsed and inproper form for transfer as provided in Section 5.7 of the TrustAgreement (as defined below). The designations, rights, privileges,restrictions, preferences and other terms and provisions of the PreferredSecurities are set forth in, and this certificate and the Preferred Securitiesrepresented hereby are issued and shall in all respects be subject to the termsand provisions of, the Amended and Restated Trust Agreement of the Trust, datedas 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 AdministrativeTrustees named therein and the Holders, from time to time, of TrustSecurities.  The Trust will furnish acopy of the Trust Agreement to the Holder without charge upon written requestto the Property Trustee at its Corporate Trust Office.

 

Upon receipt of thiscertificate, the Holder is bound by the Trust Agreement and is entitled to thebenefits thereunder.

 

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

 

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All capitalized termsused but not defined in this Preferred Securities Certificate are used with themeanings specified in the Trust Agreement, including the Schedules and Exhibitsthereto.

 

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

 
|   | **GRAMERCY**** **CAPITAL TRUST I |
|--------|---------------------------------------|
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   |                                  | Name: |   |
|   |                                  | *Administrative  Trustee* |   |

 

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

 

Dated:
|   | JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,  not in its individual capacity, but solely as Property  Trustee |
|--------|-------------------------------------------------------------------------------------------------------------|
|   |                                                                                                        |
|   |                                                                                                        |
|   | By:                                                                                                         |   |   |
|   |                                                                                                        | Authorized signatory |

 

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**[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 havebeen 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 ofeach year, commencing on **September **30,2005, at a fixed rate equal to 7.57% per annum through the interest payment datein June 2015 and thereafter at a variable rate equal to LIBOR plus **3.00%******per annum of the Liquidation Amount of the PreferredSecurities represented by this Preferred Securities Certificate, together withany Additional Interest Amounts, in respect to such period.

 

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

 

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

 

Under the Indenture, so long as no Note Event ofDefault has occurred and is continuing and upon thirty (30) days’ prior writtennotice, the Depositor shall have the right, at any time and from time to timeduring the term of the Notes, to defer the payment of interest on the Notes fora period of up to **four (4) **consecutive**quarterly** interestpayment periods (each such extended interest payment period, an “ExtensionPeriod”), 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 andpayable during an Extension Period, except at the end thereof.  If Distributions are deferred, the deferredDistributions shall be paid on the date that the related Extension Period terminatesto Holders (as defined in the Trust Agreement) of the Trust Securities as theyappear on the books and records of the Trust on the record date immediatelypreceding 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 suchDistributions in the Payment Account of the Trust.  The Trust’s funds available for Distributionto the Holders of the Preferred Securities will be limited to payments receivedfrom the Depositor.

 

During any Event of Default or any such ExtensionPeriod, the Depositor shall not (i) declare or pay any dividends ordistributions on, or redeem, purchase, acquire or make a liquidation paymentwith respect to, any of the Depositor’s capital stock or (ii) make anypayment 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 Depositorin connection with (1) any employment contract, benefit plan or othersimilar arrangement with or for the benefit of any one or more employees,officers, directors or consultants, (2) a dividend reinvestment orstockholder stock purchase plan or (3) the issuance of

 

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capital stock of theDepositor (or securities convertible into or exercisable for such capital stock)as consideration in an acquisition transaction entered into prior to the Eventof Default or applicable Extension Period, (b) as a result of an exchangeor conversion of any class or series of the Depositor’s capital stock (or anycapital 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 orseries of the Depositor’s indebtedness for any class or series of the Depositor’scapital stock, (c) the purchase of fractional interests in shares of theDepositor’s capital stock pursuant to the conversion or exchange provisions ofsuch capital stock or the security being converted or exchanged, (d) anydeclaration of a dividend in connection with any Rights Plan (as defined in theIndenture), the issuance of rights, stock or other property under any RightsPlan, or the redemption or repurchase of rights pursuant thereto or (e) anydividend in the form of stock, warrants, options or other rights where thedividend stock or the stock issuable upon exercise of such warrants, options orother rights is the same stock as that on which the dividend is being paid orranks *paripassu* 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 oneach other date on (or in respect of) which any principal on the Notes isrepaid, the Trust will be required to redeem a Like Amount of Trust Securitiesat the Redemption Price.  Under the Indenture,the Notes may be redeemed by the Depositor on any Interest Payment Date, at theDepositor’s option, on or after June 30, 2010 in whole or in part fromtime to time at the Optional Note Redemption Price of the principal amountthereof or the redeemed portion thereof, as applicable, together, in the caseof any such redemption, with accrued interest, including any AdditionalInterest, to but excluding the date fixed for redemption.  The Notes may also be redeemed by theDepositor, at its option, at any time, in whole but not in part, upon theoccurrence of an Investment Company Event or a Tax Event at the Special NoteRedemption Price; *provided*, thatsuch Investment Company Event or a Tax Event is continuing on the RedemptionDate.

 

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

 

Payments of Distributions (including any AdditionalInterest Amounts), the Redemption Price, Liquidation Amount or any otheramounts in respect of the Preferred Securities shall be made by wire transferat such place and to such account at a banking institution in the United Statesas may be designated in writing at least ten (10) Business Days prior tothe date for payment by the Person entitled thereto unless proper writtentransfer instructions have not been received by the relevant record date, inwhich case such payments shall be made by check mailed to the address of suchPerson as such address shall appear in the Security Register.  If any Preferred Securities are held by aDepositary, such Distributions shall be made to the Depositary in immediatelyavailable funds.

 

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

 

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

 

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** **

**ASSIGNMENT**

** **

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

 

 

(Insert assignee’s social security or tax identificationnumber)

 

 

(Insert address and zip code of assignee)

 

 

and irrevocably appoints

 

 

agent to transfer this Preferred SecuritiesCertificate on the books of the Trust. The agent may substitute another to actfor him or her.

 
| Date: |   |   |
|-------|--------|--------|

 

 
| Signature: |                                                                                            |   |
|------------|-------------------------------------------------------------------------------------------------|--------|
|       | (Sign exactly as your name appears on the other side of this Preferred  Securities Certificate) |   |
|       |                                                                                            |   |

 

Thesignature(s) should be guaranteed by an eligible guarantor institution (banks,stockbrokers, savings and loan associations and credit unions with membershipin an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.

 

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Exhibit D

** **

**JuniorSubordinated Indenture**

 

See Tab#4

 

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**Exhibit E**

** **

**Form of Transferee Certificateto be Executed by Transferees**

 

                    ,**[     ]**

 

**JPMorgan Chase Bank,**NationalAssociation****600 Travis, 50th FloorHouston, Texas 77002Attention:  Institutional Trust Services

 

** **

**GKK Capital LP****Gramercy******Capital Trust I420 Lexington Avenue

 

New York, NY10170

 

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

 

Ladies andGentlemen:

 

In connection with our purchase of the Preferred Securities we confirmthat:

 

1.             We understand thatthe Floating Rate Preferred Securities (the “Preferred Securities”) of GramercyCapital Trust I (the “Trust”) of **GKKCapital LP** (the “Company”) executed in connection therewith)and the Floating Rate Junior Subordinated Notes due 2035 of the Company (the “SubordinatedNotes”) (the entire amount of the Trust’s outstanding Preferred Securities andthe Subordinated Notes together being referred to herein as the “Offered Securities”),have not been registered under the Securities Act of 1933, as amended (the “SecuritiesAct”), and may not be offered or sold except as permitted in the followingsentence. We agree on our own behalf and on behalf of any investor account forwhich 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 personwe 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 thecertificates for any Offered Security that we receive will bear a legendsubstantially to the effect of the foregoing.

 

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

 

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3.             We are acquiring theOffered Securities purchased by us for our own account (or for one or moreaccounts as to each of which we exercise sole investment discretion and haveauthority to make, and do make, the statements contained in this letter) andnot with a view to any distribution of the Offered Securities, subject,nevertheless, to the understanding that the disposition of our property will atall times be and remain within our control.

 

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

 

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

 

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

 

 
|   | (Name of Purchaser) |
|--------|---------------------|
|   |                |
|   | By:                 |   |
|   | Date:               |   |
|        |                     |  |  |

 

 

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

 
| Name:               |
|---------------------|
|                |
| Address:            |
|                |
| Taxpayer ID Number: |

 

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Exhibit F

 

**Officer’s Financial Certificate**

** **

The undersigned, the[Chairman/Vice Chairman/Chief Executive Officer/President/Vice President/ChiefFinancial Officer/Treasurer/Assistant Treasurer], hereby certifies pursuant to Section 8.16(b) ofthe Amended and Restated Trust Agreement, dated as of May 20, 2005 (the “TrustAgreement”), among GKK Capital LP (the “Company”), JPMorgan Chase Bank,National Association, as property trustee, Chase Bank USA, NationalAssociation, as Delaware trustee, and the administrative trustees namedtherein, that, as of [date], [20   ], the Company had thefollowing 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 (includingthe balance sheet, income statement and statement of cash flows, and notesthereto, together with the report of the independent accountants thereon) ofthe Company and its consolidated subsidiaries for the three years ended            ,20     ].]

 

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

 

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

 

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

 

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|       | **GKK  CAPITAL LP**  |
|------------|----------------------|
|       |                 |
|       | By:                  |   |   |
|       | Name:                |   |   |
|       |                 |
|       | **GKK Capital LP**   |
|       | 420 Lexington Avenue |
| ** ** | New York, NY 10170   |
|       | (212) 297-1000       |
|            |                      |  |  |  |

 

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Schedule A

 

DETERMINATION OF LIBOR

 

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

 

(1)           On thesecond 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 anygiven security shall for the following interest payment period equal the rate,as obtained by the Calculation Agent from Bloomberg Financial MarketsCommodities News, for **three**-monthEurodollar deposits that appears on Dow Jones Telerate Page 3750 (asdefined in the International Swaps and Derivatives Association, Inc. 2000Interest Rate and Currency Exchange Definitions), or such other page asmay replace such Page 3750, as of 11:00 a.m. (London time) on suchLIBOR Determination Date.

 

(2)           If, on anyLIBOR Determination Date, such rate does not appear on Dow Jones Telerate Page 3750or such other page as may replace such Page 3750, the CalculationAgent shall determine the arithmetic mean of the offered quotations of theReference Banks (as defined below) to leading banks in the London interbankmarket for **three**-monthEurodollar deposits in an amount determined by the Calculation Agent byreference to requests for quotations as of approximately 11:00 a.m.(London time) on the LIBOR Determination Date made by the Calculation Agent tothe Reference Banks.  If, on any LIBORDetermination Date, at least two of the Reference Banks provide suchquotations, LIBOR shall equal such arithmetic mean of such quotations.  If, on any LIBOR Determination Date, only oneor none of the Reference Banks provide such quotations, LIBOR shall be deemedto be the arithmetic mean of the offered quotations that leading banks in theCity of New York selected by the Calculation Agent are quoting on the relevantLIBOR Determination Date for **three**-monthEurodollar deposits in an amount determined by the Calculation Agent byreference to the principal London offices of leading banks in the Londoninterbank market; *provided*, thatif the Calculation Agent is required but is unable to determine a rate inaccordance with at least one of the procedures provided above, LIBOR shall beLIBOR as determined on the previous LIBOR Determination Date.

 

(3)           As usedherein: *“Reference Banks”* meansfour major banks in the London interbank market selected by the CalculationAgent; and *“LIBOR Business Day”*means a day on which commercial banks are open for business (including dealingsin foreign exchange and foreign currency deposits) in London.

 

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