**Exhibit 10.23**

 

 

**AMENDEDAND RESTATED TRUST AGREEMENT**

 

among

 

 

**GKKCAPITAL LP,**

as Depositor

 

 

**JPMORGANCHASE BANK, NATIONAL ASSOCIATION,**

*as Property Trustee*

 

 

**CHASEBANK USA, NATIONAL ASSOCIATION,**

*as Delaware Trustee*

 

and

 

 

**THEADMINISTRATIVE TRUSTEES NAMED HEREIN,**

*as Administrative Trustees*

 

 

Dated as of August 9, 2005

 

 

**GRAMERCYCAPITAL TRUST II**

 

 

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**TABLE OFCONTENTS**

 
| ARTICLE I     | DEFINED TERMS                                                          |   |
|--------------------|------------------------------------------------------------------------|--------|
| SECTION 1.1.  | Definitions                                                            |   |
| ARTICLE II    | THE TRUST                                                              |   |
| SECTION 2.1.  | Name                                                                   |   |
| SECTION 2.2.  | Office of the Delaware Trustee; Office of  the Trust                   |   |
| 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 |   |
|                    |                                                                        |        |  |

 

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| 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      |   |
| 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                                                        |   |
|                    |                                                                                  |        |  |

 

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

 

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| SECTION 10.9.  | Agreement Not to Petition                                          |   |
|---------------------|--------------------------------------------------------------------|--------|
| SECTION 10.10. | Counterparts.                                                      |   |
| Exhibit A      | Certificate of Trust of Gramercy Capital Trust II                  |   |
| Exhibit B      | Form of Common Securities Certificate                         |   |
| Exhibit C      | Form of Preferred Securities Certificate                      |   |
| Exhibit D      | Junior Subordinated Indenture                                      |   |
| Exhibit E      | Form of Transferee Certificate to be Executed for Transferees |   |
| Exhibit F      | Form of Officer’s Financial Certificate of the Depositor |   |
|                     |                                                                    |        |  |

 

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THIS AMENDED AND RESTATEDTRUST AGREEMENT, dated as of August 9, 2005, among (i) GKKCapital LP, a Delaware limited partnership (including any successors orpermitted assigns, the “*Depositor*”),(ii) JPMorgan Chase Bank, National Association, a national bankingassociation, as property trustee (in such capacity, the “*Property Trustee*”), (iii) Chase Bank USA, National Association, a nationalbanking association, as Delaware trustee (in such capacity, the “*Delaware Trustee*”), (iv) MarcHolliday, an individual, Gregory F. Hughes, an individual and Hugh Hall, an individual,each of whose address is c/o GKK Capital LP, 420 Lexington Avenue, New York, NY10170, as administrativetrustees (in such capacities, each an “*AdministrativeTrustee*” and, collectively, the “*AdministrativeTrustees*” and, together with the Property Trustee and the DelawareTrustee, the “*Trustees*”) and (v) the severalHolders, as hereinafter defined.

 

WITNESSETH

 

WHEREAS, theDepositor and the Delaware Trustee have heretofore created a Delaware statutorytrust pursuant to the Delaware Statutory Trust Act by entering into a TrustAgreement, dated as of August 8, 2005 (the “*Original Trust Agreement*”),and by executing and filing with the Secretary of State of the State ofDelaware the Certificate of Trust, substantially in the form attached as Exhibit A;and

 

WHEREAS, theDepositor 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 Agreements 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, inconsideration of the agreements and obligations set forth herein and for othergood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, each party, for the benefit of the other parties and forthe benefit of the Holders, hereby amends and restates the Original TrustAgreement in its entirety and agrees as follows:

 

ARTICLE I

 

DEFINED TERMS

 

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*”has the meaning specified in Section 6.7.

 

“*AdditionalInterest*” has the meaning specified in Section 1.1 of theIndenture.

 

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

 

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

 

“*Additional TaxSums*” has the meaning specified in Section 10.5 of theIndenture.

 

“*AdministrativeTrustee*” means each of the Persons identified as an “*AdministrativeTrustee*” in the preamble to this Trust Agreement, solely ineach such Person’s capacity as Administrative Trustee of the Trust and not insuch Person’s individual capacity, or any successor Administrative Trusteeappointed as herein provided.

 

“*Affiliate*”of any specified Person means any other Person directly or indirectlycontrolling or controlled by or under direct or indirect common control withsuch specified Person.  For the purposesof this definition, “control” when used with respect to any specified Personmeans the power to direct the management and policies of such Person, directlyor indirectly, whether through the ownership of voting securities, by contractor otherwise; and the terms “controlling” and “controlled” have meaningscorrelative to the foregoing.

 

“*Applicable Depositary Procedures*” means, with respectto any transfer or transaction involving a Book-Entry Preferred Security, the rules andprocedures of the Depositary for such Book-Entry Preferred Security, in eachcase to the extent applicable to such transaction and as in effect from time totime.

 

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

 

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(a) the entryof 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) theinstitution 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 all Federal and statebankruptcy, insolvency, reorganization and other similar laws, including theUnited States Bankruptcy Code.

 

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

 

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

 

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

 

“*Closing Date*” has the meaning specified in thePurchase Agreements.

 

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

 

“*Commission*” means the Securities and ExchangeCommission, as from time to time constituted, created under the Exchange Actor, if at any time after the execution of this Trust Agreement such Commissionis not existing and performing the duties assigned to it, then the bodyperforming such duties at such time.

 

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“*Common Securities Certificate*” means a certificateevidencing ownership of Common Securities, substantially in the form attachedas Exhibit B.

 

“*Common Security*” means an undivided beneficialinterest in the assets of the Trust, having a Liquidation Amount of $1,000 andhaving the rights provided therefor in this Trust Agreement.

 

“*Corporate Trust Office*” means the principal office ofthe Property Trustee at which any particular time its corporate trust businessshall be administered, which office at the date of this Trust Agreement islocated at 600 Travis, 50thFloor, Houston, Texas 77002, Attention: Worldwide Securities Services—GramercyCapital Trust II.

 

“*Definitive Preferred Securities Certificates*” meansPreferred Securities issued in certificated, fully registered form that are notGlobal 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 asamended from time to time.

 

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

 

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

 

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

 

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

 

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

 

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

 

“*Distributions*” means amounts payable in respect ofthe Trust Securities as provided in Section 4.1.

 

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

 

“*Early Termination Event*” has the meaning specified inSection 9.2.

 

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

 

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“*Event of Default*” means any one of the followingevents (whatever the reason for such event and whether it shall be voluntary orinvoluntary or be effected by operation of law or pursuant to any judgment,decree or order of any court or any order, rule or regulation of anyadministrative or governmental body):

 

(a) theoccurrence of a Note Event of Default; or

 

(b) defaultby 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) defaultby the Trust in the payment of any Redemption Price of any Trust Security whenit becomes due and payable; or

 

(d) defaultin the performance, or breach, in any material respect of any covenant orwarranty of the Trustees in this Trust Agreement (other than those specified inclause (b) or (c) above) and continuation of such default or breachfor a period of thirty (30) days after there has been given, by registered orcertified mail, to the Trustees and to the Depositor by the Holders of at leasttwenty five percent (25%) in aggregate Liquidation Amount of the OutstandingPreferred Securities a written notice specifying such default or breach andrequiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(e) theoccurrence 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 the Securities Exchange Act of1934, and any successor statute thereto, in each case as amended from time totime.

 

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

 

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

 

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

 

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

 

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

 

“*Holder*” means a Person in whose name a Trust Securityor Trust Securities are registered in the Securities Register; any such Personshall be deemed to be a beneficial owner within the meaning of the DelawareStatutory Trust Act.

 

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

 

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

 

“*Interest PaymentDate*” has the meaning specified in Section 1.1 of theIndenture.

 

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

 

“*Investment CompanyEvent*” has the meaning specified in Section 1.1 of theIndenture.

 

“*LIBOR*” has the meaning specified in Schedule A.

 

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

 

“*LIBOR Determination Date*” has the meaning specifiedin Schedule A.

 

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

 

“*Like Amount*” means (a) with respect to aredemption of any Trust Securities, Trust Securities having a LiquidationAmount equal to the principal amount of Notes to be contemporaneously redeemedor paid at maturity in accordance with the Indenture, the proceeds of whichwill be used to pay the Redemption Price of such Trust Securities, (b) withrespect to a distribution of Notes to Holders of Trust Securities in connectionwith a dissolution of the Trust, Notes having a principal amount equal to theLiquidation Amount of the Trust Securities of the Holder to whom such Notes aredistributed and (c) with respect to any distribution of AdditionalInterest Amounts to Holders of Trust Securities, Notes having a principalamount equal to the Liquidation Amount of the Trust Securities in respect ofwhich such distribution is made.

 

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

 

“*Liquidation Date*” means the date on which assets areto be distributed to Holders in accordance with Section 9.4(a) hereunderfollowing dissolution of the Trust.

 

“*Liquidation Distribution*” has the meaning specifiedin Section 9.4(d).

 

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

 

“*Note Event of Default*” means any “*Event ofDefault*” specified in Section 5.1 of theIndenture.

 

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“*Note Redemption Date*” means, with respect to anyNotes to be redeemed under the Indenture, the date fixed for redemption of suchNotes under the Indenture.

 

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

 

“*Notes*” means the Depositor’s Floating Rate JuniorSubordinated Notes issued pursuant to the Indenture.

 

“*Officers’ Certificate*” means a certificate signed bythe Chief Executive Officer, the President or an Executive Vice President, andby the Chief Financial Officer, Treasurer or an Assistant Treasurer, of theDepositor, and delivered to the Trustees. Any Officers’ Certificate deliveredwith respect to compliance with a condition or covenant provided for in thisTrust Agreement (other than the certificate provided pursuant to Section 8.16which 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)  a briefstatement 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*” means the Purchase Agreements,the Indenture, the Trust Agreement, the Notes and the Trust Securities.

 

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

 

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

 

“*Optional Redemption Price*” means, with respect to anyTrust Security, an amount equal to one hundred percent (100%) of theLiquidation Amount of such Trust Security on the Redemption Date, plusaccumulated and unpaid Distributions to the Redemption Date, plus the

 

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related amount of the premium, if any, and/or accruedinterest, including Additional Interest, if any, thereon paid by the Depositorupon the concurrent redemption or payment at maturity of a Like Amount ofNotes.

 

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

 

“*Outstanding*”, when used with respect to any TrustSecurities, means, as of the date of determination, all Trust Securitiestheretofore 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, that if such TrustSecurities are to be redeemed, notice of such redemption has been duly givenpursuant 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 determining whether the Holders of the requisite LiquidationAmount of the Outstanding Preferred Securities have given any request, demand,authorization, direction, notice, consent or waiver hereunder, PreferredSecurities owned by the Depositor, any Trustee or any Affiliate of theDepositor or of any Trustee shall be disregarded and deemed not to beOutstanding, except that (i) in determining whether any Trustee shall beprotected in relying upon any such request, demand, authorization, direction,notice, consent or waiver, only Preferred Securities that such Trustee knows tobe so owned shall be so disregarded and (ii) the foregoing shall not applyat any time when all of the Outstanding Preferred Securities are owned by theDepositor, one or more of the Trustees and/or any such Affiliate. PreferredSecurities so owned that have been pledged in good faith may be regarded as Outstandingif the pledgee establishes to the satisfaction of the Administrative Trusteesthe pledgee’s right so to act with respect to such Preferred Securities andthat the pledgee is not the Depositor, any Trustee or any Affiliate of theDepositor or of any Trustee.

 

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

 

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

 

“*Payment Account*” means a segregatednon-interest-bearing corporate trust account maintained by the Property Trusteefor the benefit of the Holders in which all amounts paid in respect of theNotes 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 legal person, including anyindividual, corporation, estate, partnership, joint venture, association, jointstock company, company, limited liability company, trust, unincorporatedassociation or government, or any agency or political subdivision thereof, orany other entity of whatever nature.

 

“*Preferred Security*” means an undivided beneficialinterest in the assets of the Trust, having a Liquidation Amount of $1,000 andhaving the rights provided therefor in this Trust Agreement.

 

“*Preferred Securities Certificate*” means a certificateevidencing ownership of Preferred Securities, substantially in the formattached as Exhibit C.

 

“*Property Trustee*” means the Person identified as the “*PropertyTrustee*” in the preamble to this Trust Agreement, solely inits capacity as Property Trustee of the Trust and not in its individualcapacity, or its successor in interest in such capacity, or any successorProperty Trustee appointed as herein provided.

 

“*Purchase Agreements*” means the two (2) PurchaseAgreements, each executed and delivered by the Trust, the Depositor and thePurchaser(s) named therein, as purchasers, contemporaneously with the executionand delivery of this Trust Agreement, as amended from time to time.

 

“*QIB*”means a “*qualified institutional buyer*” asdefined in Rule 144A under the Securities 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 a QP.

 

“*Redemption Date*” means, with respect to any TrustSecurity to be redeemed, the date fixed for such redemption by or pursuant tothis Trust Agreement; provided,that each Note Redemption Date and the stated maturity (or any date ofprincipal repayment upon early maturity) of the Notes shall be a RedemptionDate for a Like Amount of Trust Securities.

 

“*Redemption Price*” means the Special Redemption Priceor Optional Redemption Price, as applicable. If the Depositor has redeemed the Notes at the Special Note RedemptionPrice, the Trust shall redeem the Trust Securities at the Special RedemptionPrice.  If the Depositor has redeemed theNotes at the Optional Note Redemption Price, the Trust shall redeem the TrustSecurities at the Optional Redemption Price.

 

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

 

“*Responsible Officer*” means, with respect to the PropertyTrustee, the officer in the Worldwide Securities Services department of theProperty Trustee having direct responsibility for the administration of thisTrust Agreement.

 

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

 

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

 

“*Securities Register*” and “*Securities Registrar*” havethe respective meanings specified in Section 5.7.

 

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

 

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

 

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

 

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

 

“*Trust*” means the Delaware statutory trust known as “*Gramercy Capital Trust II,*” which was created on August 8,2005 under the Delaware Statutory Trust Act pursuant to the Original TrustAgreement and the filing of the Certificate of Trust, and continued pursuant tothis Trust Agreement.

 

“*Trust Agreement*” means this Amended and RestatedTrust Agreement, as the same may be modified, amended or supplemented from timeto time in accordance with the applicable provisions hereof, including allSchedules and Exhibits.

 

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

 

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

 

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

 

ARTICLE II

 

THE TRUST

 

SECTION 2.1.*  Name*.

 

The trust continued hereby shall be known as “GramercyCapital Trust II”, as such name may be modified from time to time by theAdministrative Trustees following written notice to the Holders of TrustSecurities and the other Trustees, in which name the Trustees may conduct thebusiness of the Trust, make and execute contracts and other instruments onbehalf of the Trust and sue and be sued.

 

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

 

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

 

SECTION 2.3.*  Initial Contribution of TrustProperty; 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.

 

(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,

 

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except asexpressly provided herein, (iii) incur any indebtedness for borrowed moneyor issue any other debt, (iv) take or consent to any action that wouldresult in the placement of a Lien on any of the Trust Property, (v) takeor consent to any action that would reasonably be expected to cause the Trustto become taxable as a corporation or classified as other than a grantor trustfor United States federal income tax purposes, (vi) take or consent to anyaction that would cause the Notes to be treated as other than indebtedness ofthe Depositor for United States federal income tax purposes or (vii) takeor consent to any action that would cause the Trust to be deemed to be an “investmentcompany” required to be registered under the Investment Company Act.

 

SECTION 2.5.*  Authorization to Enter intoCertain 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;

 

(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 PurchaseAgreements and application for a taxpayer identification number for the Trust;

 

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(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 ofand liquidation of the Trust, provided that the Administrative Trustees shallhave the power, duty and authority to act on behalf of the Trust with respectto the preparation, execution and filing of the certificate of cancellation ofthe Trust with the Secretary of State 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

 

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for the benefit of the Holders (without considerationof the effect of any such action 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 TrustAgreement are hereby ratified and confirmed in all respects):

 

(i)                                     thenegotiation of the terms of, and the execution and delivery of, the PurchaseAgreements 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 InvestmentCompany Act. In respect thereof, each Administrative Trustee is authorized totake any action, not inconsistent with applicable law, the Certificate of Trustor this Trust Agreement, that such Administrative Trustee determines in his orher discretion to be necessary or desirable for such purposes, as long as suchaction does not adversely affect in any material respect the interests of theHolders of the Outstanding Preferred Securities.  In no event shall the Administrative Trusteesbe liable to the Trust or the Holders for any failure to comply with this Section 2.5to the extent that such failure results solely from a change in law orregulation or in the interpretation 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 entitled to rely conclusively on the powerand authority of any Trustee as set forth in this Trust Agreement.

 

SECTION 2.6.*  Assets of Trust*.

 

The assets of the Trust shall consist of the TrustProperty.

 

SECTION 2.7.*  Title to Trust Property*.

 

(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 TrustAgreement.

 

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(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 withrespect to, the Notes. Amounts held in the Payment Account shall not beinvested by the Property Trustee pending distribution thereof.

 

SECTION 3.2.*  Appointment of Paying Agents*.

 

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 PayingAgent appointed by the Administrative Trustees shall execute and deliver to theTrustees an instrument in which such successor Paying Agent shall agree withthe Trustees that as Paying Agent, such successor Paying Agent will hold allsums, if any, held by it for payment to the Holders in trust for the benefit ofthe Holders entitled thereto until such sums shall be paid to such Holders. ThePaying Agent shall return all unclaimed funds to the Property Trustee and uponremoval of a Paying Agent such Paying Agent shall also return all funds in itspossession to the Property Trustee. The provisions of Article VIIIshall apply to the Property Trustee also in its role as Paying Agent, for solong as the Property Trustee shall act as Paying Agent and, to the extentapplicable, to any other Paying Agent appointed hereunder.

 

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Any reference in this Trust Agreement to the PayingAgent shall include 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 TrustProperty, and Distributions (including any Additional Interest Amounts) will bemade on the Trust Securities at the rate and on the dates that payments ofinterest (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 of Distributions.  Distributions shall accumulate from August 9,2005, and, except as provided in clause (ii) below, shall be payablequarterly in arrears on January 30, April 30, July 30 and October 30 of each year, commencing on October 30,2005.  If any date on which a Distributionis otherwise payable on the Trust Securities is not a Business Day, then thepayment of such Distribution shall be made on the next succeeding Business Day(and no interest shall accrue in respect of the amounts whose payment is sodelayed for the period from and after each such date until the next succeedingBusiness Day), except that, if such Business Day falls in the next succeedingcalendar year, such payment shall be made on the immediately preceding BusinessDay, in each case, with the same force and effect as if made on such date (eachdate on which Distributions are payable in accordance with this 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 quarterlyinterest payment periods (each such extended interest payment period, an “ExtensionPeriod”), during which Extension Period no interest on the Notes shall be dueand 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 Periodterminates, to Holders of the Trust Securities as they appear on the books andrecords of the Trust on the record date immediately preceding such terminationdate.

 

(iii)                               Distributionsshall accumulate in respect of the Trust Securities at a fixed rate equal to7.75% per annum through the interest payment date in October 2015 and thereafterat a variable rate equal to LIBOR plus 3.00% per annum of the LiquidationAmount of the Trust Securities, such rate being the rate of interest payable onthe Notes.

 

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LIBOR shall be determined by the Calculation Agent inaccordance with Schedule A. During the Fixed Rate Period, theamount of Distributions payable for any period less than a full Distributionperiod shall be computed on the basis of a 360-day year of twelve 30-day monthsand the amount payable for any partial period shall be computed on the basis ofthe number of days elapsed in a 360-day year of twelve 30-day months.  Upon expiration of the Fixed Rate Period, theamount of interest payable for any Distribution period will be computed on thebasis of a 360-day year and the actual number of days elapsed in the relevantDistribution period. The amount of Distributions payable for any period shallinclude any Additional Interest Amounts 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 PayingAgent to determine their respective duties and liabilities with respect to anytaxes or other charges that they may be required to pay, deduct or withhold inrespect of such Trust 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

 

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of) which anyprincipal on the Notes is repaid, the Trust will be required to redeem a LikeAmount of Trust Securities at the Redemption Price.

 

(b)                                 Noticeof redemption shall be given by the Property Trustee by first-class mail, postageprepaid, mailed not less than thirty (30) nor more than sixty (60) days priorto the Redemption Date to each Holder of Trust Securities to be redeemed, atsuch 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 October 30, 2010, in whole or in part, from time totime at the Optional Note Redemption Price. The Notes may also be redeemed by the Depositor, at its option pursuantto the terms of the Indenture, in whole but not in part, upon the occurrenceand during the continuation of an Investment Company Event or a Tax Event, atthe 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

 

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Redemption Date,the Property Trustee will, with respect to Book-Entry Preferred Securities,irrevocably deposit with the Depositary for such Book-Entry PreferredSecurities, to the extent available therefor, funds sufficient to pay theapplicable Redemption Price and will give such Depositary irrevocableinstructions and authority to pay the Redemption Price to the Holders of thePreferred Securities. With respect to Preferred Securities that are notBook-Entry Preferred Securities, the Property Trustee will irrevocably depositwith the Paying Agent, to the extent available therefor, funds sufficient topay the applicable Redemption Price and will give the Paying Agent irrevocableinstructions and authority to pay the Redemption Price to the Holders of thePreferred Securities upon surrender of their Preferred Securities Certificates.Notwithstanding the foregoing, Distributions payable on or prior to theRedemption Date for any Trust Securities (or portion thereof) called forredemption shall be payable to the Holders of such Trust Securities as theyappear on the Securities Register on the relevant record dates for the relatedDistribution Dates. If notice of redemption shall have been given and fundsdeposited as required, then upon the date of such deposit, all rights ofHolders holding Trust Securities (or portion thereof) so called for redemptionwill cease, except the right of such Holders to receive the Redemption Priceand any Distribution payable in respect of the Trust Securities on or prior tothe Redemption Date, but without interest, and, in the case of a partialredemption, the right of such Holders to receive a new Trust Security orSecurities of authorized denominations, in aggregate Liquidation Amount equalto the unredeemed portion of such Trust Security or Securities, and suchSecurities (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 interest shallaccrue in respect of the amounts whose payment is so delayed for the periodfrom and after each such date until the next succeeding Business Day), exceptthat, if such Business Day falls in the next succeeding calendar year, suchpayment shall be made on the immediately preceding Business Day, in each case,with the same force and effect as if made on such date. In the event 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 andthe Preferred Securities based upon the relative aggregate Liquidation Amountsof the Common Securities and the Preferred Securities.  The Preferred Securities to be redeemed shallbe selected on a pro rata basisbased upon their respective Liquidation Amounts not more than sixty (60) daysprior to the Redemption Date by the Property Trustee from the OutstandingPreferred Securities not previously called for redemption; provided, that with respect toHolders that would be required to hold less than one hundred (100) but morethan zero (0) Trust Securities as a result of such redemption, the Trust shallredeem Trust Securities of each such Holder so that after such redemption suchHolder shall hold either one hundred (100) Trust Securities or such Holder nolonger holds any Trust Securities, and shall use such method (including,without limitation, by lot) as the Trust shall deem fair and appropriate; and provided, further, that so long as the

 

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PreferredSecurities are Book-Entry Preferred Securities, such selection shall be made inaccordance with the Applicable Depositary Procedures for the PreferredSecurities by such Depositary. The Property Trustee shall promptly notify theSecurities Registrar in writing of the Preferred Securities (or portionthereof) selected for redemption and, in the case of any Preferred Securitiesselected for partial redemption, the Liquidation Amount thereof to be redeemed.For all purposes of this Trust Agreement, unless the context otherwiserequires, all provisions relating to the redemption of Preferred Securitiesshall relate, in the case of any Preferred Securities redeemed or to beredeemed 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 no representation is made as to thecorrectness of such numbers either as printed on the Trust Securities or ascontained in any notice of redemption and related materials.

 

SECTION 4.3.*  Subordination of Common 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 rataamong the Common Securities and the Preferred Securities based on theLiquidation Amount of the respective Trust Securities; provided, that if on any Distribution Date, Redemption Date orLiquidation Date an Event of Default shall have occurred and be continuing, nopayment of any Distribution (including any Additional Interest Amounts) on,Redemption Price of or Liquidation Distribution in respect of, any CommonSecurity, and no other payment on account of the redemption, liquidation orother acquisition of Common Securities, shall be made unless payment in full incash of all accumulated and unpaid Distributions (including any AdditionalInterest Amounts) on all Outstanding Preferred Securities for all Distributionperiods terminating 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 Agreement until all such Events of Default with respect to thePreferred Securities have been cured, waived or otherwise eliminated. Until allsuch Events of Default under this Trust Agreement with respect to the PreferredSecurities have been so cured, waived or otherwise eliminated, the PropertyTrustee shall act solely on behalf of the Holders of the Preferred Securitiesand not on behalf of the Holders of the Common Securities, and only the Holdersof all the Preferred Securities will have the right to direct the PropertyTrustee to act on their behalf.

 

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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 anyPreferred Securities are held by a Depositary, such Distributions thereon shallbe made to the Depositary in immediately available funds. Payments in respectof the Common Securities shall be made in such manner as shall be mutuallyagreed between the Property Trustee and the Holder of all the CommonSecurities.

 

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 extent that the Trust is required to withholdand pay over any amounts to any jurisdiction with respect to Distributions orallocations to any Holder, the amount withheld shall be deemed to be aDistribution in the amount of the withholding to the Holder. In the event ofany claimed overwithholding, Holders shall be limited to an action against theapplicable jurisdiction.  If the amountrequired to be withheld was not withheld from actual Distributions made, theAdministrative Trustees on behalf of the Trust may reduce subsequentDistributions by the amount of such required withholding.

 

SECTION 4.6.*  Tax Returns and Other Reports*.

 

The Administrative Trustees shall prepare (or cause tobe prepared) at the principal office of the Trust in the United States, asdefined for purposes of Treasury regulations section 301.7701-7, at theDepositor’s expense, and file, all United States federal, state and local taxand information returns and reports required to be filed by or in respect ofthe Trust. The Administrative Trustees shall prepare at the principal office ofthe Trust in the United States, as defined for purposes of Treasury regulationssection 301.7701-7, and furnish (or cause to be prepared and furnished),by January 31 in each taxable year of the Trust to each Holder allInternal Revenue Service forms and returns required to be provided by theTrust. The Administrative Trustees shall provide the Depositor, Taberna CapitalManagement, LLC, and the Property Trustee with a copy of all such returns andreports promptly after such filing or furnishing.

 

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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 under Indenture orPursuant 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 the Owneror Holder of any Preferred Securities, such Depositor Affiliate shall have theright to deliver to the Property Trustee all or such portion of its PreferredSecurities as it elects and, subject to compliance with Sections 2.2 and 3.5 ofthe Indenture, receive, in exchange therefor, a Like Amount of Notes. Suchelection shall be exercisable effective on any Distribution Date by suchDepositor Affiliate delivering to the Property Trustee (i) at least ten (10) BusinessDays prior to the Distribution Date on which such exchange is to occur, theregistration instructions and the documentation, if any, required pursuant toSections 2.2 and 3.5 of the Indenture to enable the Indenture Trustee to issuethe requested Like Amount of Notes, (ii) a written notice of such electionspecifying the Liquidation Amount of Preferred Securities with respect to whichsuch election is being made and the Distribution Date on which such exchangeshall occur, 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 the Preferred Securities Outstanding immediately prior to such exchange, forsuch proportional amount of Common Securities held by the Depositor (whichcontemporaneously shall be canceled and no longer be deemed to be Outstanding);provided, that the Depositordelivers or causes to be delivered to the Property Trustee or its designee therequired amount of Common Securities to be exchanged by 10:00 A.M. NewYork time, on the Distribution Date on which such exchange is to occur.

 

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SECTION 4.10.*  Calculation Agent*.

 

(a)                                  TheCalculation Agent may be removed by the Administrative Trustees at anytime.  Notwithstanding the foregoing, 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. If theCalculation Agent is unable or unwilling to act as such or is removed by theAdministrative Trustees, the Administrative Trustees will promptly appoint as areplacement Calculation Agent the London office of a leading bank which isengaged in transactions in three-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 calculate theinterest 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’s determination of the foregoing rates andamounts for any Distribution Date will (in the absence of manifest error) befinal and binding upon all parties.  Forthe sole purpose of calculating the interest rate for the Trust Securities, “BusinessDay” shall be defined as any day on which dealings in deposits in Dollars aretransacted in the London interbank 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 bemaintained on the accrual method of accounting, in accordance with generallyaccepted accounting principles, consistently applied.

 

(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) cause tobe 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

 

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statements of theTrust, including a balance sheet of the Trust as of the end of such FiscalYear, 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 theEDGAR system for purposes of retrieving the financial information so filed.Compliance with the foregoing shall constitute delivery by the AdministrativeTrustees of its financial statements to the Property Trustee in compliance withthe provisions of Section 314(a) of the Trust Indenture Act, ifapplicable.  The Property Trustee shallhave no duty to search for or obtain any electronic or other filings that theDepositor makes with the Commission, regardless of whether such filings areperiodic, supplemental or otherwise. Delivery of reports, information and documents to the Property Trusteepursuant to this Section 4.11(c) shall be solely for purposesof compliance with this Section 4.11 and, if applicable, with Section 314(a) ofthe Trust Indenture Act. The Property Trustee’s receipt of such reports,information and documents shall not constitute notice to it of the contentthereof or any matter determinable from the content thereof, including theDepositor’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 theProperty Trustee shall be made directly to the Payment Account and no otherfunds of the Trust shall be deposited in the Payment Account. The solesignatories for such accounts (including the Payment Account) shall bedesignated by the Property Trustee.

 

ARTICLE V

 

SECURITIES

 

SECTION 5.1.*  Initial Ownership*.

 

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.

 

SECTION 5.2.*  Authorized Trust Securities*.

 

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

 

SECTION 5.3.*  Issuance of the CommonSecurities; 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,

 

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evidencing an aggregate of One Thousand Five HundredFifty (1,550) Common Securities having an aggregate Liquidation Amount of OneMillion Five Hundred Fifty Thousand Dollars ($1,550,000), against receipt bythe Trust of the aggregate purchase price of such Common Securities of OneMillion Five Hundred Fifty Thousand Dollars ($1,550,000). Contemporaneouslytherewith and with the sale by the Trust to the Holders of an aggregate ofFifty Thousand (50,000) Preferred Securities having an aggregate LiquidationAmount of Fifty Million Dollars ($50,000,000), an Administrative Trustee, onbehalf of the Trust, shall purchase from the Depositor Notes, to be registeredin the name of the Property Trustee on behalf of the Trust and having anaggregate principal amount equal to Fifty-One Million Five Hundred FiftyThousand Dollars ($51,550,000),and, in satisfaction of the purchase price for such Notes, the PropertyTrustee, on behalf of the Trust, shall deliver to the Depositor the sum ofFifty-One Million Five Hundred Fifty Thousand Dollars ($51,550,000) (being theaggregate amount paid by the Holders for the Preferred Securities, and theamount paid by the Depositor for the Common Securities).

 

SECTION 5.4.*  The Securities 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 thesignatures of individuals who were, at the time when such signatures shall havebeen affixed, authorized to sign such Securities Certificates on behalf of theTrust shall be validly issued and entitled to the benefits of this TrustAgreement, notwithstanding that such individuals or any of them shall haveceased to be so authorized prior to the delivery of such SecuritiesCertificates or did not have such authority at the date of delivery of suchSecurities 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 Depositary or a custodian for the Depositary for creditby the Depositary to the respective accounts of the Depositary Participantsthereof (or such other accounts 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 signatureshall be conclusive evidence that the Preferred Security has been authenticatedunder this Trust Agreement.  Upon writtenorder of the Trust signed by one Administrative Trustee, the Property Trusteeshall authenticate the Preferred Securities for original issue.  The Property Trustee may appoint anauthenticating

 

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agent that is aU.S. Person acceptable to the Trust to authenticate 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 authenticationcan be found in Section 5.13.

 

SECTION 5.5.*  Rights of 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 the Trust.Except as provided in Section 5.11(b), the Holders of the TrustSecurities, in their capacities as such, shall be entitled to the samelimitation of personal liability extended to stockholders of privatecorporations for profit organized under the General Corporation Law of theState of Delaware.

 

SECTION 5.6.*  Book-Entry Preferred 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 itsresponsibilities with respect to the Global Preferred Security, and noqualified successor is appointed by the Administrative Trustees within ninety(90) days of receipt of such notice, the Depositary ceases to be a clearingagency registered under the Exchange Act and the Administrative Trustees failto appoint a qualified successor within ninety (90) days of obtaining knowledgeof such event, (iii) the Administrative Trustees at their option advisethe Property Trustee in writing that the Trust elects to terminate thebook-entry system through the Depositary or (iv) a Note Event of Defaulthas occurred and is continuing. Upon the occurrence of any event specified inclause (i), (ii), (iii) or (iv) above, the Administrative Trusteesshall notify the Depositary and instruct the Depositary to notify all Owners ofBook-Entry Preferred Securities, the Delaware Trustee and the Property Trusteeof the occurrence of such event and of the availability of the DefinitivePreferred Securities Certificates to Owners of the Preferred Securities requestingthe same. Upon the issuance of Definitive Preferred Securities Certificates,the Trustees 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 the provisionsof this Section 5.6 and Section 5.7, and the transfereeshall receive a Definitive Preferred Securities Certificate in connection withsuch transfer. A holder of a Definitive Preferred Securities Certificate thatis a QIB/QP may, upon request 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

 

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be reduced,subject to Section 5.4, or increased by an amount equal to theLiquidation Amount represented by that portion of the Global Preferred Securityto be so exchanged or canceled, or equal to the Liquidation Amount representedby such Definitive Preferred Securities Certificates to be so exchanged for anyGlobal Preferred Security, as the case may be, by means of an appropriateadjustment made on the records of the Securities Registrar, whereupon theProperty Trustee, in accordance with the Applicable Depositary Procedures,shall instruct the Depositary or its authorized representative to make acorresponding adjustment to its records. Upon any such surrender to theAdministrative Trustees or the Securities Registrar of any Global PreferredSecurity or Securities by the Depositary, accompanied by registrationinstructions, the Administrative Trustees, or any one of them, shall executethe Definitive Preferred Securities Certificates in accordance with theinstructions of the Depositary.  None ofthe Securities Registrar or the Trustees shall be liable for any delay indelivery of such instructions and may conclusively rely on, and shall be fullyprotected in relying on, such instructions.

 

(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 Trusteesshall be 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 theTrustees nor the Securities Registrar shall have any liability in respect ofany transfers effected 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, that solely for the purpose of determining whether theHolders of the requisite amount of Preferred Securities have voted on anymatter provided for in this Trust Agreement, to the extent that PreferredSecurities are represented by a Global Preferred Security, the Trustees mayconclusively rely on, and shall be fully protected in relying on, any writteninstrument (including a proxy) delivered to the Property Trustee by theDepositary setting forth the Owners’ votes or assigning the right to vote onany matter to any other Persons either in whole or in part. To the extent thatPreferred Securities are represented by a Global Preferred Security, theinitial Depositary will make book-entry transfers among the DepositaryParticipants and receive and transmit payments on the Preferred Securities thatare represented by a Global Preferred Security to such Depositary Participants,and none of the Depositor or the Trustees shall have any responsibility orobligation with respect thereto.

 

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(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.*  Registration of Transfer and Exchange ofPreferred Securities Certificates*.

 

(a)                                  TheProperty Trustee shall keep or cause to be kept, at the Corporate Trust Office,a register or registers (the “SecuritiesRegister”) in which the registrar and transfer agent with respect to theTrust Securities (the “SecuritiesRegistrar”), subject to such reasonable regulations as it may prescribe,shall provide for the registration of Preferred Securities Certificates andCommon Securities Certificates and registration of transfers and exchanges ofPreferred Securities Certificates as herein provided. The Person acting as theProperty Trustee shall at all times also be the Securities Registrar. Theprovisions of Article VIII shall apply to the Property Trustee inits 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, PreferredSecurities Certificates may be exchanged for other Preferred SecuritiesCertificates in authorized denominations and of a like aggregate LiquidationAmount upon surrender of the Preferred Securities Certificate to be exchangedat the office or 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 Article IV andending 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.

 

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(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 Corporate TrustOffice as its office and agency for such purposes. The Administrative Trusteesshall give prompt written notice to the Depositor, the Property Trustee and tothe Holders of any change in the location of any such office or agency.

 

(g)                                 ThePreferred Securities may only be transferred to a “Qualified Purchaser” as suchterm is defined in Section 2(a)(51) of the Investment 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 StolenSecurities 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 shall bedelivered to the Securities Registrar such security or indemnity as may berequired by it to save each of the Trustees harmless, then in the absence ofnotice that such Securities Certificate shall have been acquired by a protectedpurchaser, the Administrative Trustees, or any one of them, on behalf of theTrust, shall execute and make available for delivery, and, with respect to PreferredSecurities, the Property Trustee shall authenticate, in exchange for or in lieuof any such destroyed, lost or stolen Securities Certificate, a new SecuritiesCertificate of like class, tenor and denomination.

 

(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.

 

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(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 Deemed Holders*.

 

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 PreferredSecurities Certificates surrendered directly to the Property Trustee for anysuch purpose shall be promptly canceled by it. The Administrative Trustees may at any time deliver to the PropertyTrustee for cancellation any Preferred Securities Certificates previouslydelivered hereunder that the Administrative Trustees may have acquired in anymanner whatsoever, and all Preferred Securities Certificates so delivered shallbe promptly 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.

 

SECTION 5.11.*  Ownership of 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

 

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Indenture or (ii) tothe Depositor 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.*  Restricted Legends*.

 

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

 

**“[IF THIS SECURITY IS A GLOBAL SECURITY INSERT:**THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE TRUSTAGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THEDEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OF DTC. THIS PREFERRED SECURITYIS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THANDTC OR 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 PRESENTEDBY AN AUTHORIZED REPRESENTATIVE OF DTC TO GRAMERCY CAPITAL TRUST II OR ITSAGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERREDSECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCHOTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENTHEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTEDBY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USEHEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THEREGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]

 

THE PREFERRED SECURITIES REPRESENTED BY THISCERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION

 

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UNDER THE SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTEREST THEREIN, MAY NOTBE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATIONOR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THESELLER OF THE PREFERRED SECURITIES MAY BE RELYING ON THE EXEMPTION FROMTHE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144AUNDER THE SECURITIES ACT.

 

THE HOLDER OF THE PREFERRED SECURITIESREPRESENTED BY THIS CERTIFICATE AGREES FOR THE BENEFIT OF THE TRUST AND THEDEPOSITOR THAT (A) SUCH PREFERRED SECURITIES MAY BE OFFERED, RESOLDOR OTHERWISE TRANSFERRED ONLY (I) TO THE TRUST OR (II) TO A PERSON WHOM THESELLER REASONABLY BELIEVES IS A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(a)(51)OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED), AND (B) THE HOLDERWILL NOTIFY ANY PURCHASER OF ANY PREFERRED SECURITIES FROM IT OF THE RESALERESTRICTIONS 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 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 THIS SECURITY, OR ANY INTERESTTHEREIN,  BY ITS ACCEPTANCE HEREOF ORTHEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEEBENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TOTITLE I OF 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 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

 

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HOLDER OF THE PREFERRED SECURITIES OR ANYINTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDINGTHEREOF THAT IT IS 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.”

 

(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 |

 

ARTICLE VI

 

MEETINGS; VOTING; ACTS OF HOLDERS

 

SECTION 6.1.*  Notice of 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.

 

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SECTION 6.2.*  Meetings of 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.*  Voting Rights*.

 

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 anymeeting unless it shall have been placed on file with the AdministrativeTrustees, or with such other officer or agent of the Trust as theAdministrative Trustees may direct, for verification prior to the time at whichsuch vote shall be taken. Pursuant to a resolution of the Property Trustee,proxies may be solicited in the name of the Property Trustee or one or moreofficers of the Property Trustee. Only Holders of record shall be entitled tovote. When Trust Securities are held jointly by several Persons, any one ofthem may vote at any meeting in person or by proxy in respect of such TrustSecurities, but if more than one of them shall be present at such meeting inperson or by proxy, and such joint owners or their proxies so present disagreeas to any vote to be cast, such vote shall not be received in respect of suchTrust Securities. A proxy purporting to be executed by or on behalf of a Holdershall be deemed valid unless challenged at or prior to its exercise, and theburden of proving invalidity shall rest on the challenger. No proxy shall bevalid more than three years after its date of execution.

 

SECTION 6.5.*  Holder Action by Written Consent*.

 

Any action that may be taken by Holders at a 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

 

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action in writing; provided, that notice of such action is promptly provided to theHolders 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.*  Record Date 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.*  Acts of 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” of theHolders signing such instrument or instruments. Proof of execution of any suchinstrument or of a writing appointing any such agent shall be sufficient forany purpose of this Trust Agreement and conclusive in favor of the Trustees, ifmade 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 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.

 

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(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.*  Inspection of 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.*  Limitations on 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 Securities Certificates,be construed so as to constitute the Holders from time to time as partners ormembers 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 termination of the Indenture or the Notes,where such consent shall be required, without, in each case, obtaining theprior approval of the Holders of at least a Majority in Liquidation Amount ofthe Preferred Securities; provided,that where a consent under the Indenture would require the consent of eachholder of Notes (or each Holder of Preferred Securities) affected thereby, nosuch consent 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.

 

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(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.*  Acceleration of Maturity; Rescission ofAnnulment; 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)                                     theDepositor has paid or deposited with the Note Trustee a sum sufficient to pay:

 

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

 

(B)                                anyaccrued Additional Interest on all of the Notes;

 

(C)                                theprincipal of and premium, if any, on any Notes that have become due otherwisethan by such declaration of acceleration and interest and Additional Interestthereon 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

 

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date shall be established for determining Holders ofOutstanding Preferred Securities entitled to join in such notice, which recorddate shall be at the close of business on the day the Property Trustee receivessuch notice. The Holders on such record date, or their duly designated proxies,and only such Persons, shall be entitled to join in such notice, whether or notsuch Holders remain Holders 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,pursuant to Section 5.8 of the Indenture, for enforcement of payment tosuch Holder of any amounts payable in respect of Notes having an aggregateprincipal amount equal to the aggregate Liquidation Amount of the PreferredSecurities of such Holder.  Except as setforth in Section 6.10(a) and this Section 6.10(b),the Holders of Preferred Securities shall have no right to exercise directlyany right or remedy available to the holders of, 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 premium, if any, or interest (including any AdditionalInterest) on the Notes (unless such Note Event of Default has been cured and asum sufficient to pay all matured installments of interest and all principaland premium, if any, on all Notes due otherwise than by acceleration has beendeposited with the Note Trustee) or a Note Event of Default in respect of acovenant or provision that under the Indenture cannot be modified or amendedwithout the consent of the holder of each outstanding Note. Upon any suchwaiver, such Note Event of Default shall cease to exist and any Note Event ofDefault arising therefrom shall be deemed to have been cured for every purposeof the Indenture; but no such waiver shall affect any subsequent Note Event ofDefault or 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.

 

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(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 have the right to decline to follow any suchdirection if the Property Trustee being advised by counsel determines that theaction so directed may not lawfully be taken, or if the Property Trustee ingood faith shall, by an officer or officers of the Property Trustee, determinethat the proceedings so directed would be illegal or involve it in personalliability or be unduly prejudicial to the rights of Holders not party to suchdirection, and *provided*, *further*,that nothing in this Trust Agreement shall impair the right of the PropertyTrustee to take any action deemed proper by the Property Trustee and which isnot inconsistent with such direction.

 

ARTICLE VII

 

REPRESENTATIONS AND WARRANTIES

 

SECTION 7.1.*  Representations and Warranties of theProperty 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)                                  theProperty Trustee is a national banking association, duly organized and validlyexisting 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)                                  theDelaware Trustee is a national banking association, duly formed and validlyexisting under the laws of the United States;

 

(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

 

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the DelawareTrustee and such execution, delivery and performance will not (i) violatethe Restated Organization Certificate or Articles of Association, asapplicable, or By-laws of the Property Trustee or the Delaware Trustee, (ii) violateany provision of, or constitute, with or without notice or lapse of time, adefault under, or result in the imposition of any lien on any propertiesincluded in the Trust Property pursuant to the provisions of any indenture,mortgage, credit agreement, license or other agreement or instrument to whichthe Property Trustee or the Delaware Trustee is a party or by which it isbound, or (iii) violate any applicable law, governmental rule orregulation of the United States or the State of Delaware, as the case may be,governing the banking, trust or general powers of the Property Trustee or theDelaware Trustee or any order, judgment or decree applicable to the PropertyTrustee or the 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’s knowledge,there are no proceedings pending or threatened against or affecting theProperty 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.

 

SECTION 7.2.*  Representations and Warranties of Depositor*.

 

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

 

(a)                                  theDepositor is a corporation duly organized, validly existing and in goodstanding 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

 

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requirements of,this Trust Agreement and the Holders will be, as of such date, entitled to thebenefits of this Trust Agreement;

 

(e)                                  theexecution, delivery and performance of this Trust Agreement have been dulyauthorized by all necessary corporate or other action on the part of the Depositorand do not require any approval of stockholders of the Depositor and suchexecution, delivery and performance will not (i) violate the articles orcertificate of incorporation or by-laws (or other organizational documents) ofthe Depositor or 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.

 

ARTICLE VIII

 

THE TRUSTEES

 

SECTION 8.1.*  Number of Trustees*.

 

The number of Trustees shall be five (5); provided, that the Property Trusteeand the Delaware Trustee may be the same Person, in which case the number ofTrustees 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. The death, resignation, retirement,removal, bankruptcy, incompetence or incapacity to perform the duties of aTrustee shall not operate to annul, dissolve or terminate the Trust.

 

SECTION 8.2.*  Property Trustee Required*.

 

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 set forthin its most recent report of condition so published. If at any time the

 

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Property Trustee shall cease to be eligible inaccordance with the provisions of this Section 8.2, it shall resignimmediately in the manner and with the effect hereinafter specified in this Article VIII.

 

SECTION 8.3.*  Delaware Trustee Required*.

 

(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 fiduciaryduties), liabilities and obligations of the Delaware Trustee shall be limitedto (a) accepting legal process served on the Trust in the State ofDelaware and (b) the execution of any certificates required to be filedwith the Secretary of State of the State of Delaware that the Delaware Trusteeis required to execute under Section 3811 of the Delaware Statutory TrustAct and there shall be no other duties (including fiduciary duties) orobligations, express or implied, at law or in equity, of the Delaware Trustee.

 

SECTION 8.4.*  Appointment of 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 exercisedby, or with the consent of, any one such Administrative Trustee. Whenever avacancy in the number of Administrative Trustees shall occur, until suchvacancy is filled by the appointment of an Administrative Trustee in accordancewith Section 8.11, the Administrative Trustees in office,regardless of their number (and notwithstanding any other provision of thisTrust Agreement), shall have all the powers granted to the AdministrativeTrustees and shall discharge all the duties imposed upon the AdministrativeTrustees by this Trust Agreement.

 

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SECTION 8.5.*  Duties and 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 its exercise,as a prudent person would exercise or use under the circumstances in theconduct 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 this Trust Agreement shall be construed torelease any Administrative Trustee from liability for his or her own negligentaction, negligent failure to act; or his or 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 liabilities of the Trustees otherwiseexisting at law or in equity, are agreed by the Depositor and the Holders toreplace such other duties and liabilities of the Trustees.

 

(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)                                     theProperty Trustee shall not be liable for any error or judgment made in goodfaith by an authorized officer of the Property Trustee, unless it shall beproved that the Property Trustee was negligent in ascertaining the pertinentfacts;

 

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(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)                                 theProperty Trustee shall not be responsible for monitoring the compliance by theAdministrative Trustees or the Depositor with their respective duties underthis Trust Agreement, nor shall the Property Trustee be liable for the defaultor misconduct of any other Trustee or the Depositor.

 

SECTION 8.6.*  Notices of 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 the purpose of this Section 8.6,the term “default” means anyevent that is, or after notice or lapse of time or both would become, an Eventof 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 theextent provided in Section 10.8, notice of such exercise to theHolders and the Administrative Trustees, unless such exercise shall have beenrevoked.

 

(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.

 

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SECTION 8.7.*  Certain Rights 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 of indebtedness orother paper or document believed by it to be genuine and to have been signed orpresented 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 Trustee findsa 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 suchinstructions of the Depositor within ten (10) Business Days after it hasdelivered such notice or such reasonably shorter period of time set forth insuch notice, the Property Trustee may, but shall be under no duty to, take suchaction, or refrain from taking such action, as the Property Trustee shall deemadvisable and in the best interests of the Holders, in which event the PropertyTrustee shall have no liability except for its own negligence, bad faith orwillful misconduct;

 

(c)                                  anydirection or act of the Depositor contemplated by this Trust Agreement shall besufficiently evidenced by an Officers’ Certificate unless otherwise expresslyprovided herein;

 

(d)                                 anydirection or act of an Administrative Trustee contemplated by this TrustAgreement shall be sufficiently evidenced by a certificate executed by suchAdministrative Trustee and setting forth such direction 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

 

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Property Trustee shall have the right at any time toseek instructions concerning the administration of this Trust Agreement fromany court 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,that nothing contained in this Section 8.7(g) shall beconstrued to relieve the Property Trustee, upon the occurrence of an Event ofDefault, of its obligation to exercise the rights and powers vested in it bythis Trust Agreement; 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)                                     theProperty Trustee may execute any of the trusts or powers hereunder or performany duties hereunder either directly or by or through its agents, attorneys, custodiansor nominees and the Property Trustee shall not be responsible for anynegligence or misconduct on the part of any such agent, attorney, custodian ornominee 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)                                  exceptas otherwise expressly provided by this Trust Agreement, the Property Trusteeshall not be under any obligation to take any action that is discretionaryunder 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

 

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its agents and counsel) and the compensation for suchservices are intended to constitute expenses of administration under anybankruptcy law or law 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.*  Delegation of 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 any documents contemplated in Section 2.5.The Trustees shall have power to delegate from time to time to the Depositorthe doing of such things and the execution of such instruments either in thename of the Trust or the names of the Trustees or otherwise as the Trustees maydeem expedient, to the extent such delegation is not prohibited by applicablelaw or contrary to the provisions of this Trust Agreement.

 

SECTION 8.9.*  May Hold Securities*.

 

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 a 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,

 

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disbursement or advance as may be attributable totheir gross negligence, bad faith 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 (other thanincome, 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.

 

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.*  Resignation and Removal; Appointment ofSuccessor*.

 

(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

 

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Amount of thePreferred Securities, delivered to the removed Trustee (in its individualcapacity and on behalf of the Trust).  AnAdministrative Trustee may be removed (with or without cause) only by Act ofthe Holder of the Common Securities at any time.

 

(d)                                 Ifany Trustee shall resign, be removed or become incapable of acting as Trustee,or if a vacancy shall occur in the office of any Trustee for any reason, at atime when no Event of Default shall have occurred and be continuing, the Holderof the Common Securities, by Act of the Holder of the Common Securities, shallpromptly appoint a successor Trustee or Trustees, and such successor Trusteeand the retiring Trustee shall comply with the applicable requirements of Section 8.12.If the Property Trustee or the Delaware Trustee shall resign, be removed orbecome incapable of continuing to act as the Property Trustee or the DelawareTrustee, as the case may be, at a time when an Event of Default shall haveoccurred and be continuing, the Holders of the Preferred Securities, by Act ofthe Holders of a Majority in Liquidation Amount of the Preferred Securities,shall promptly appoint a successor Property Trustee or Delaware Trustee, andsuch successor Property Trustee or Delaware Trustee and the retiring PropertyTrustee or Delaware Trustee shall comply with the applicable requirements of Section 8.12.If an Administrative Trustee shall resign, be removed or become incapable ofacting as Administrative Trustee, at a time when an Event of Default shall haveoccurred and be continuing, the Holder of the Common Securities by Act of theHolder of Common Securities shall promptly appoint a successor AdministrativeTrustee and such successor Administrative Trustee and the retiringAdministrative Trustee shall comply with the applicable requirements of Section 8.12.If no successor Trustee shall have been so appointed by the Holder of theCommon Securities or Holders of the Preferred Securities, as the case may be,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 (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).

 

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(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.*  Acceptance of 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 all instruments for morefully and certainly vesting in and confirming to such successor Trustee allsuch rights, powers and trusts referred to in the preceding 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 orSuccession 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 all or substantially all the corporate trust business of such Trustee, shallbe the successor of such Trustee hereunder, without the execution or filing ofany paper or any further act on the part of any of the parties hereto, provided, that such Person shall beotherwise qualified and eligible under this Article VIII.

 

SECTION 8.14.*  Not Responsible for Recitals Issuance ofSecurities 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 this Trust Agreement, theNotes or the Trust Securities.  TheTrustees shall not be accountable for the use or application by the Depositorof 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

 

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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 beliable for 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 File Proofs ofClaim*.

 

(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 and unpaidin respect of the Trust Securities and to file such other papers or documentsas may be necessary or advisable in order to have the claims of the PropertyTrustee (including any claim for the reasonable compensation, expenses,disbursements and advances of the Property Trustee, its agents and counsel) andof the Holders allowed in such judicial proceeding; and

 

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

 

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.*  Reports to 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

 

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ending after thedate of this Trust Agreement, an Officers’ Certificate covering the precedingfiscal year, stating whether or not to the knowledge of the signers thereof theDepositor and the Trust are in default in the performance or observance of anyof the terms, provisions and conditions of this Trust Agreement (without regardto any period of grace or requirement of notice provided hereunder) and, if theDepositor or the Trust shall be in default, specifying all such defaults and thenature and status thereof of which they have knowledge.

 

(b)                                 TheDepositor shall furnish (i) to the Property Trustee; (ii) TabernaCapital Management, LLC; and (iii) any Owner of the Preferred Securitiesreasonably identified to the Depositor and the Trust (which identification maybe made either by such Owner or by Taberna Capital Management, LLC) a dulycompleted and executed certificate substantively and substantially in the formattached hereto as Exhibit F, including the financial statementsreferenced in such Exhibit, which certificate and financial statements shall beso furnished by the Depositor not later than forty five (45) days after the endof each of the first three fiscal quarters of each fiscal year of the Depositorand not later than ninety (90) days after the end of each fiscal year of theDepositor.

 

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 October 30, 2040 (the “Expiration Date”), and the Trust Property shall be liquidatedin accordance with Section 9.4.

 

SECTION 9.2.*  Early Termination*.

 

The first to occur of any of the following events isan “Early Termination Event”,upon the 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)                                  theredemption of all of the Preferred Securities in connection with the payment atmaturity or redemption of all the Notes; and

 

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(d)                                 theentry of an order for dissolution of the Trust by a court of competentjurisdiction.

 

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.  As soon as possible thereafter, and aftersatisfaction of liabilities to creditors of the Trust as required by applicablelaw, including Section 3808 of the Delaware Statutory Trust Act, theDelaware Trustee, when notified in writing of the completion of the winding upof the Trust in accordance with the Delaware Statutory Trust Act, shallterminate the Trust by filing, at the expense of the Depositor, a certificateof cancellation with the Secretary of State of the State of Delaware.

 

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)                                     statethe 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 Certificates not surrendered for exchange will be deemed to representa Like Amount of Notes; and

 

(iii)                               providesuch information with respect to the mechanics by which Holders may exchangeSecurities 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.

 

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(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 “Liquidation Distribution”). If, upon any such winding up theLiquidation Distribution can be paid only in part because the Trust hasinsufficient assets available to pay in full the aggregate LiquidationDistribution, then, subject to the next succeeding sentence, the amountspayable by the Trust on the Trust Securities shall be paid on a pro rata basis (based uponLiquidation Amounts). The Holder of the Common Securities will be entitled toreceive Liquidation Distributions upon any such winding up pro rata (based upon LiquidationAmounts) with Holders of all Trust Securities, except that, if an Event ofDefault has occurred and is continuing, the Preferred Securities shall have apriority over the Common Securities as provided in Section 4.3.

 

SECTION 9.5.*  Mergers, Consolidations, Amalgamations orReplacements 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;

 

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(b)                                 atrustee of such successor entity possessing substantially the same powers andduties as the Property Trustee is appointed to hold the Notes;

 

(c)                                  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;

 

(d)                                 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;

 

(e)                                  suchsuccessor entity has a purpose substantially identical to that of the Trust;

 

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

 

(g)                                 theDepositor or its permitted transferee owns all of the common securities of suchsuccessor 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.*  Limitation of 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

 

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the legal representatives or heirs of such Person orany Holder for such Person, to claim an accounting, take any action or bringany proceeding in any court for a partition or winding up of the arrangementscontemplated hereby, nor otherwise affect the rights, obligations andliabilities of the parties hereto or any of them.

 

SECTION 10.2.*  Agreed Tax Treatment of Trustand 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 herein, or to make or amend any otherprovisions with respect to matters or questions arising under this TrustAgreement, which shall not be inconsistent with the other provisions of thisTrust Agreement, (ii) to modify, eliminate or add to any provisions ofthis Trust Agreement to such extent as shall be necessary to ensure that theTrust will neither be taxable as a corporation nor be classified as other thana grantor trust for United States federal income tax purposes at all times thatany Trust Securities are Outstanding or to ensure that the Notes are treated asindebtedness of the Depositor for United States federal income tax purposes, orto ensure that the Trust will not be required to register as an “investmentcompany” under the Investment Company Act or (iii) to add to thecovenants, restrictions or obligations of the Depositor; provided, that in the case of clauses(i), (ii) or (iii), such action shall not adversely affect in any materialrespect 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.  In addition to the foregoing, theDistribution Dates, Redemption Date and Stated Maturity (as defined in theIndenture) with respect to the Preferred Securities or a portion of thePreferred Securities shall be modified in

 

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connection withany modification of the Interest Payment Date, Redemption Date or StatedMaturity of the Junior Subordinated Notes made by the Company and the Trust atthe direction of any holder of the Preferred Securities or a portion of thePreferred Securities as set forth in Section 6 of the Purchase Agreement.

 

(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, except as set forth in the last sentence of Section 10.3(b) above,(ii) restrict or impair the right of a Holder to institute suit for theenforcement of any such payment on or after such date, (iii) reduce thepercentage of aggregate Liquidation Amount of Outstanding Preferred Securities,the consent of whose Holders is required for any such amendment, or the consentof whose Holders is required for any waiver of compliance with any provision ofthis Trust Agreement or of defaults hereunder and their consequences providedfor in this Trust Agreement; (iv) impair or adversely affect the rightsand interests of the Holders in the Trust Property, or permit the creation ofany Lien on any portion of the Trust Property; or (v) modify thedefinition 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.

 

(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 Trust Agreement.The Trustees shall be entitled to receive an Opinion of Counsel and an Officers’Certificate stating that any amendment to this Trust Agreement is in compliancewith this Trust Agreement and all conditions precedent herein provided forrelating to such action 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

 

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provision at issue a valid, legal and enforceableprovision as similar as possible to the provision at issue.

 

SECTION 10.5.*  Governing Law*.

 

**THIS TRUST AGREEMENT AND THE RIGHTSAND OBLIGATIONS OF EACH OF THE HOLDERS, THE TRUST, THE DEPOSITOR AND THETRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST SECURITIES SHALL BECONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATEOF DELAWARE WITHOUT REFERENCE 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 Depositor may be given or served in writing delivered in person,or by reputable, overnight courier, by telecopy or by deposit thereof,first-class postage prepaid, in the United States mail, addressed, (a) inthe case of a Holder of Preferred Securities, to such Holder as such Holder’sname and address may appear on the Securities Register; and (b) in thecase of the Holder of all the Common Securities 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 addressas may be specified in a written notice by the Holder of all the CommonSecurities or the Depositor, as the case may be, to the Property Trustee. Suchreport, notice, demand or other communication to or upon a Holder or theDepositor shall be deemed to have been given when received in person, withinone (1) Business Day following delivery by overnight courier, whentelecopied with receipt confirmed, or within three (3) Business Daysfollowing 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

 

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thereof,first-class postage prepaid, in the U.S. mail, personal delivery or facsimiletransmission, addressed to such Person as follows: (i) with respect to theProperty Trustee to JPMorgan Chase Bank, National Association, 600 Travis, 50th Floor, Houston, Texas 77002,Attention: Worldwide Securities Services—Gramercy Capital Trust II,  facsimile no. (713) 216-2101, (ii) withrespect to the Delaware Trustee, to Chase Bank USA, National Association, c/oJPMorgan Chase Bank, National Association, 500 Stanton Christiana Road,Building 4 (3rd Floor), Newark, Delaware 19713, Attention: WorldwideSecurities Services—Gramercy Capital Trust II, 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 ofGramercy Capital Trust II”, and (iv) with respect to the Trust, to itsprincipal executive office specified in Section 2.2, with a copy tothe Property Trustee. Such notice, demand or other communication to or upon theTrust, the Property Trustee or the Administrative Trustees shall be deemed tohave been sufficiently given or made only upon actual receipt of the writing bythe Trust, the Property Trustee or the Administrative Trustees.

 

SECTION 10.9.*  Agreement Not 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 anyBankruptcy Law or otherwise join in the commencement of any proceeding againstthe Trust under any Bankruptcy Law. If the Depositor takes action in violationof this Section 10.9, the Property Trustee agrees, for the benefitof Holders, that at the expense of the Depositor, it shall file an answer withthe applicable bankruptcy court or otherwise properly contest the filing ofsuch petition by the Depositor against the Trust or the commencement of suchaction and raise the defense that the Depositor has agreed in writing not totake such action and should be estopped and precluded therefrom and such otherdefenses, if any, as counsel for the Property Trustee or the Trust may assert.

 

SECTION 10.10.*  Counterparts*. This instrument may be executed inany number of counterparts, each of which so executed shall be deemed to be anoriginal, but all such counterparts shall together constitute but one and thesame 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              | CHASE BANK USA, NATIONAL ASSOCIATION, as |
| ASSOCIATION, in its individual as Property | Delaware Trustee                         |
|                                       |                                     |                                         |   |
|                                       |                                     |                                         |   |
| By:                                        |                                     |                                         | By: |   |   |
|                                       | Name:                                    |                                         | Name: |   |
|                                       | Title:                                   |                                         | Title: |   |
|                                       |                                     |                                         |   |   |
|                                       |                                     |                                         |   |   |
|                                       |                                     |                                         |   |
| Administrative Trustee                     |                                     | Administrative Trustee                       |
| Name: Marc Holliday                        |                                     | Name: Gregory F. Hughes                      |
|                                       |                                     |                                         |
|                                       |                                     |                                         |
|                                       |                                     |                                         |
| Administrative Trustee                     |                                     |
| Name: Hugh Hall                            |                                     |
|                                            |                                          |                                              |  |  |  |  |

 

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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)                                  Onthe second LIBOR Business Day (as defined below) prior to a Distribution Date(except with respect to the first interest payment period, such date shall be August 5,2005) (each such day, a “*LIBOR DeterminationDate*”), LIBOR for any given security shall for the followinginterest payment period equal the rate, as obtained by the Calculation Agentfrom Bloomberg Financial Markets Commodities News, for three-month Eurodollardeposits that appears on Dow Jones Telerate Page 3750 (as defined in theInternational Swaps and Derivatives Association, Inc. 2000 Interest Rateand Currency Exchange Definitions), or such other page as may replace suchPage 3750, as of 11:00 a.m. (London time) on such LIBOR DeterminationDate.

 

(2)                                  If,on any LIBOR Determination Date, such rate does not appear on Dow JonesTelerate Page 3750 or such other page as may replace such Page 3750,the Calculation Agent shall determine the arithmetic mean of the offeredquotations of the Reference Banks (as defined below) to leading banks in theLondon interbank market for three-month Eurodollar deposits in an amountdetermined by the Calculation Agent by reference to requests for quotations asof approximately 11:00 a.m. (London time) on the LIBOR Determination Datemade by the Calculation Agent to the Reference Banks.  If, on any LIBOR Determination Date, at leasttwo of the Reference Banks provide such quotations, LIBOR shall equal sucharithmetic mean of such quotations.  If,on any LIBOR Determination Date, only one or none of the Reference Banksprovide such quotations, LIBOR shall be deemed to be the arithmetic mean of theoffered quotations that leading banks in the City of New York selected by theCalculation Agent are quoting on the relevant LIBOR Determination Date forthree-month Eurodollar deposits in an amount determined by the CalculationAgent by reference 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)                                  Asused herein: “*Reference Banks*” means four majorbanks in the London interbank market selected by the Calculation Agent; and “*LIBORBusiness Day*” means a day on which commercial banks are openfor business (including dealings in foreign exchange and foreign currencydeposits) in London.

 

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