**Exhibit 10.24**

** **

**AMENDED AND RESTATED TRUST AGREEMENT**

 

among

 

 

**GKK CAPITAL LP,**

as Depositor

 

 

**JPMORGAN CHASE BANK, NATIONALASSOCIATION,**

*as Property Trustee*

 

 

**CHASE BANK USA, NATIONAL ASSOCIATION,**

*as Delaware Trustee*

 

and

 

**THE ADMINISTRATIVE TRUSTEES NAMED HEREIN,**

*as Administrative Trustees*

 

 

Dated as of January 27, 2006

 

 

**GRAMERCY CAPITAL TRUST****III**

 

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**TABLE OF CONTENTS**

 
| ** **         | ** **                                                             | Page   |
|--------------------|------------------------------------------------------------------------|--------|
|               |                                                                   |   |
| ARTICLE I     | DEFINED TERMS                                                          | 1      |
|               |                                                                   |
| SECTION 1.1.  | Definitions                                                            | 1      |
|               |                                                                   |
| ARTICLE II    | THE TRUST                                                              | 11     |
|               |                                                                   |
| SECTION 2.1.  | Name                                                                   | 11     |
|               |                                                                   |   |
| SECTION 2.2.  | Office of the Delaware Trustee; Office of the Trust                    | 11     |
|               |                                                                   |   |
| SECTION 2.3.  | Initial Contribution of Trust Property; Fees, Costs  and Expenses      | 11     |
|               |                                                                   |   |
| SECTION 2.4.  | Purposes of Trust                                                      | 12     |
|               |                                                                   |   |
| SECTION 2.5.  | Authorization to Enter into Certain Transactions                       | 12     |
|               |                                                                   |   |
| SECTION 2.6.  | Assets of Trust                                                        | 14     |
|               |                                                                   |   |
| SECTION 2.7.  | Title to Trust Property                                                | 15     |
|               |                                                                   |
| ARTICLE III   | PAYMENT ACCOUNT; PAYING AGENTS                                         | 15     |
|               |                                                                   |
| SECTION 3.1.  | Payment Account                                                        | 15     |
|               |                                                                   |   |
| SECTION 3.2.  | Appointment of Paying Agents                                           | 15     |
|               |                                                                   |
| ARTICLE IV    | DISTRIBUTIONS; REDEMPTION                                              | 16     |
|               |                                                                   |
| SECTION 4.1.  | Distributions                                                          | 16     |
|               |                                                                   |   |
| SECTION 4.2.  | Redemption                                                             | 18     |
|               |                                                                   |   |
| SECTION 4.3.  | Subordination of Common Securities                                     | 20     |
|               |                                                                   |   |
| SECTION 4.4.  | Payment Procedures                                                     | 21     |
|               |                                                                   |   |
| SECTION 4.5.  | Withholding Tax                                                        | 21     |
|               |                                                                   |   |
| SECTION 4.6.  | Tax Returns and Other Reports                                          | 21     |
|               |                                                                   |   |
| SECTION 4.7.  | Payment of Taxes, Duties, Etc. of the Trust                            | 22     |
|               |                                                                   |   |
| SECTION 4.8.  | Payments under Indenture or Pursuant to Direct  Actions                | 22     |
|               |                                                                   |   |
| SECTION 4.9.  | Exchanges                                                              | 22     |
|               |                                                                   |   |
| SECTION 4.10. | Calculation Agent                                                      | 23     |
|               |                                                                   |   |
| SECTION 4.11. | Certain Accounting Matters                                             | 23     |
|               |                                                                   |
| ARTICLE V     | SECURITIES                                                             | 24     |
|               |                                                                   |
| SECTION 5.1.  | Initial Ownership                                                      | 24     |
|               |                                                                   |   |
| SECTION 5.2.  | Authorized Trust Securities                                            | 25     |
|               |                                                                   |   |
| SECTION 5.3        | Issuance of the Common Securities; Subscription and  Purchase of Notes | 25     |
|                    |                                                                        |        |  |

i

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| ** **         | ** **                                                                       | Page   |
|--------------------|----------------------------------------------------------------------------------|--------|
|               |                                                                             |   |
| SECTION 5.4.  | The Securities Certificates                                                      | 25     |
|               |                                                                             |   |
| SECTION 5.5.  | Rights of Holders                                                                | 26     |
|               |                                                                             |   |
| SECTION 5.6.  | Book-Entry Preferred Securities                                                  | 26     |
|               |                                                                             |   |
| SECTION 5.7.  | Registration of Transfer and Exchange of Preferred  Securities Certificates      | 28     |
|               |                                                                             |   |
| SECTION 5.8.  | Mutilated, Destroyed, Lost or Stolen Securities  Certificates                    | 29     |
|               |                                                                             |   |
| SECTION 5.9.  | Persons Deemed Holders                                                           | 30     |
|               |                                                                             |   |
| SECTION 5.10. | Cancellation                                                                     | 30     |
|               |                                                                             |   |
| SECTION 5.11. | Ownership of Common Securities by Depositor                                      | 31     |
|               |                                                                             |   |
| SECTION 5.12. | Restricted Legends                                                               | 31     |
|               |                                                                             |   |
| SECTION 5.13. | Form of Certificate of Authentication                                       | 33     |
|               |                                                                             |
| ARTICLE VI    | MEETINGS; VOTING; ACTS OF HOLDERS                                                | 34     |
|               |                                                                             |
| SECTION 6.1.  | Notice of Meetings                                                               | 34     |
|               |                                                                             |   |
| SECTION 6.2.  | Meetings of Holders of the Preferred Securities                                  | 34     |
|               |                                                                             |   |
| SECTION 6.3.  | Voting Rights                                                                    | 34     |
|               |                                                                             |   |
| SECTION 6.4.  | Proxies, Etc                                                                     | 34     |
|               |                                                                             |   |
| SECTION 6.5.  | Holder Action by Written Consent                                                 | 35     |
|               |                                                                             |   |
| SECTION 6.6.  | Record Date for Voting and Other Purposes                                        | 35     |
|               |                                                                             |   |
| SECTION 6.7.  | Acts of Holders                                                                  | 35     |
|               |                                                                             |   |
| SECTION 6.8.  | Inspection of Records                                                            | 36     |
|               |                                                                             |   |
| SECTION 6.9.  | Limitations on Voting Rights                                                     | 36     |
|               |                                                                             |   |
| SECTION 6.10. | Acceleration of Maturity; Rescission of Annulment;  Waivers of Past Defaults     | 37     |
|               |                                                                             |
| ARTICLE VII   | REPRESENTATIONS AND WARRANTIES                                                   | 39     |
|               |                                                                             |
| SECTION 7.1.  | Representations and Warranties of the Property  Trustee and the Delaware Trustee | 39     |
|               |                                                                             |   |
| SECTION 7.2.  | Representations and Warranties of Depositor                                      | 40     |
|               |                                                                             |
| ARTICLE VIII  | THE TRUSTEES                                                                     | 41     |
|               |                                                                             |
| SECTION 8.1.  | Number of Trustees                                                               | 41     |
|               |                                                                             |   |
| SECTION 8.2.  | Property Trustee Required                                                        | 42     |
|               |                                                                             |   |
| SECTION 8.3.  | Delaware Trustee Required                                                        | 42     |
|                    |                                                                                  |        |  |

 

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| ** **         | ** **                                                               | Page   |
|--------------------|--------------------------------------------------------------------------|--------|
|               |                                                                     |   |
| SECTION 8.4.  | Appointment of Administrative Trustees                                   | 43     |
|               |                                                                     |   |
| SECTION 8.5.  | Duties and Responsibilities of the Trustees                              | 43     |
|               |                                                                     |   |
| SECTION 8.6.  | Notices of Defaults and Extensions                                       | 44     |
|               |                                                                     |   |
| SECTION 8.7.  | Certain Rights of Property Trustee                                       | 45     |
|               |                                                                     |   |
| SECTION 8.8.  | Delegation of Power                                                      | 47     |
|               |                                                                     |   |
| SECTION 8.9.  | May Hold Securities                                                 | 47     |
|               |                                                                     |   |
| SECTION 8.10. | Compensation; Reimbursement; Indemnity                                   | 48     |
|               |                                                                     |   |
| SECTION 8.11. | Resignation and Removal; Appointment of Successor                        | 49     |
|               |                                                                     |   |
| SECTION 8.12. | Acceptance of Appointment by Successor                                   | 50     |
|               |                                                                     |   |
| SECTION 8.13. | Merger, Conversion, Consolidation or Succession to  Business             | 50     |
|               |                                                                     |   |
| SECTION 8.14. | Not Responsible for Recitals Issuance of Securities  and Representations | 51     |
|               |                                                                     |   |
| SECTION 8.15. | Property Trustee May File Proofs of Claim                           | 51     |
|               |                                                                     |   |
| SECTION 8.16. | Reports to the Property Trustee                                          | 52     |
|               |                                                                     |
| ARTICLE IX    | TERMINATION, LIQUIDATION AND MERGER                                      | 52     |
|               |                                                                     |
| SECTION 9.1.  | Dissolution Upon Expiration Date                                         | 52     |
|               |                                                                     |   |
| SECTION 9.2.  | Early Termination                                                        | 52     |
|               |                                                                     |   |
| SECTION 9.3.  | Termination                                                              | 53     |
|               |                                                                     |   |
| SECTION 9.4.  | Liquidation                                                              | 53     |
|               |                                                                     |   |
| SECTION 9.5.  | Mergers, Consolidations, Amalgamations or  Replacements of Trust         | 55     |
|               |                                                                     |
| ARTICLE X     | MISCELLANEOUS PROVISIONS                                                 | 56     |
|               |                                                                     |
| SECTION 10.1. | Limitation of Rights of Holders                                          | 56     |
|               |                                                                     |   |
| SECTION 10.2. | Agreed Tax Treatment of Trust and Trust Securities                       | 56     |
|               |                                                                     |   |
| SECTION 10.3. | Amendment                                                                | 56     |
|               |                                                                     |   |
| SECTION 10.4. | Separability                                                             | 58     |
|               |                                                                     |   |
| SECTION 10.5. | Governing Law                                                            | 58     |
|               |                                                                     |   |
| SECTION 10.6. | Successors                                                               | 58     |
|               |                                                                     |   |
| SECTION 10.7. | Headings                                                                 | 58     |
|               |                                                                     |   |
| SECTION 10.8. | Reports, Notices and Demands                                             | 58     |
|                    |                                                                          |        |  |

 

iii

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| ** **          | ** **                | ** ** |
|---------------------|---------------------------|------------|
|                |                      |       |
| SECTION 10.9.  | Agreement Not to Petition | 59         |
|                |                      |       |
| SECTION 10.10. | Counterparts.             | 60         |
|                     |                           |            |  |

 
| Exhibit A |   | Certificate of  Trust of Gramercy Capital Trust III                 |
|----------------|--------|---------------------------------------------------------------------|
| 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 |

 

iv

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THIS AMENDED AND RESTATEDTRUST AGREEMENT, dated as of January 27, 2006, 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, anindividual, each of whose address is c/o GKK Capital LP, 420 Lexington Avenue,New York, NY 10170, asadministrative trustees (in such capacities, each an “*Administrative Trustee*” and, collectively,the “*Administrative Trustees*”and, together with the Property Trustee and the Delaware Trustee, the “*Trustees*”)and (v) the several Holders, as hereinafter defined. 

 

WITNESSETH

 

WHEREAS, 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 January 27, 2006 (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 IDEFINED TERMS

 

SECTION 1.1.*  Definitions*.

 

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

 

(a)           the terms defined in this Article Ihave the meanings assigned to them in this Article I;

 

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

 

A-1

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(c)           all accounting terms used but notdefined herein have the meanings assigned to them in accordance with United Statesgenerally accepted accounting principles;

 

(d)           unless the context otherwiserequires, 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 maybe, of or to this Trust Agreement;

 

(e)           the words “hereby,” “herein,” “hereof”and “hereunder” and other words of similar import refer to this Trust Agreementas a whole and not to any particular Article, Section or othersubdivision;

 

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

 

(g)           the masculine, feminine or neutergenders 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:

 

F-2

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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) aSaturday or Sunday, (b) a day on which banking institutions in the City ofNew York are authorized or required by law or executive order to remain closedor (c) a day on which the Corporate Trust Office is closed for business.

 

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

 

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

 

F-3

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“*Common Securities Certificate*” means a certificateevidencing ownership of Common Securities, substantially in the form attached asExhibit 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 at any particular time its corporate trustbusiness shall be administered, which office at the date of this TrustAgreement is located at 600 Travis, 50th Floor, Houston, Texas 77019, Attn: Worldwide SecuritiesServices—Gramercy Capital Trust III.  **Initially, all notices andcorrespondence shall be addressed to Mudassir Mohamed, telephone (713)216-2826.**

 

“*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.

 

F-4

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

 

“*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 January 2016.

 

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

 

F-5

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“*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.

 

“*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.

 

F-6

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

 

“*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.

 

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“*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 relatedamount of the premium, if any, and/or accrued interest, including AdditionalInterest, if any, thereon paid by the Depositor upon the concurrent redemptionor payment at maturity of a Like Amount of Notes.

 

“*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 Trust Securities are to be redeemed, notice of such redemption hasbeen duly given pursuant to this Trust Agreement; and

 

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

 

*provided* that in 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 asOutstanding if the pledgee establishes to the satisfaction of theAdministrative Trustees the pledgee’s right so to act with respect to suchPreferred Securities and that the pledgee is not the Depositor, any Trustee orany Affiliate of the Depositor or of any Trustee.

 

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“*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.

 

“*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 segregated non-interest-bearingcorporate trust account maintained by the Property Trustee for the benefit ofthe Holders in which all amounts paid in respect of the Notes will be held andfrom which the Property Trustee, through the Paying Agent, shall make paymentsto the Holders in accordance with Section 3.1, Section 4.1and Section 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.

 

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“*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.

 

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

 

“*Responsible Officer*” means, with respect to theProperty Trustee, the officer in the Worldwide Securities Services departmentof the Property Trustee having direct responsibility for the administration ofthis Trust 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 III,*” which was created on January 27,2006 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.

 

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“*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.

 

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

 

ARTICLE IITHE TRUST

 

SECTION 2.1.*  Name*.

 

The trust continued hereby shall be known as “GramercyCapital Trust III”, as such name may be modified from time to time by theAdministrative Trustees following written notice to the Holders of Trust Securitiesand the other Trustees, in which name the Trustees may conduct the business ofthe Trust, make and execute contracts and other instruments on behalf of theTrust 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:  Worldwide Securities Services, or such otheraddress in the State of Delaware as the Delaware Trustee may designate bywritten notice to the Holders, the Depositor, the Property Trustee and theAdministrative Trustees. The principal executive office of the Trust is 420Lexington Avenue, New York, NY 10170, Attention:  Gregory F. Hughes, as such address may bechanged from time to time by the Administrative Trustees following writtennotice to the Holders and the other Trustees.

 

SECTION 2.3.*  Initial 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)           The exclusive purposes and functionsof the Trust are to (i) issue and sell Trust Securities and use theproceeds from such sale to acquire the Notes and (ii)  engage in onlythose activities necessary or incidental thereto. The Delaware Trustee, theProperty Trustee and the Administrative Trustees are trustees of the Trust, andhave all the rights, powers and duties to the extent set forth herein.  The Trustees hereby acknowledge that they aretrustees of the Trust.

 

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(b)           So long as this Trust Agreementremains in effect, the Trust (or the Trustees acting on behalf of the Trust)shall not undertake any business, activities or transaction except as expresslyprovided herein or contemplated hereby. In particular, the Trust (or theTrustees acting on behalf of the Trust) shall not (i) acquire anyinvestments or engage in any activities not authorized by this Trust Agreement,(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off orotherwise dispose of any of the Trust Property or interests therein, includingto Holders, except as expressly provided herein, (iii) incur anyindebtedness for borrowed money or issue any other debt, (iv) take orconsent to any action that would result in the placement of a Lien on any ofthe Trust Property, (v) take or consent to any action that wouldreasonably be expected to cause the Trust to become taxable as a corporation orclassified as other than a grantor trust for United States federal income taxpurposes, (vi) take or consent to any action that would cause the Notes tobe treated as other than indebtedness of the Depositor for United Statesfederal income tax purposes or (vii) take or consent to any action thatwould cause the Trust to be deemed to be an “investment company” required to beregistered under the Investment Company Act.

 

SECTION 2.5.*  Authorization to Enter intoCertain Transactions*.

 

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

 

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

 

(A)          the issuance and sale of the TrustSecurities;

 

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

 

(C)           assisting in the sale of thePreferred Securities in one or more transactions exempt from registration underthe Securities Act, and in compliance with applicable state securities or bluesky laws;

 

(D)          assisting in the sending of notices(other than notices of default) and other information regarding the TrustSecurities and the Notes to the Holders in accordance with this TrustAgreement;

 

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

 

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

 

(G)           execution and delivery of closingcertificates, if any, pursuant to the Purchase Agreements and application for ataxpayer identification number for the Trust;

 

(H)          preparation and filing of allapplicable tax returns and tax information reports that are required to befiled on behalf of the Trust;

 

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

 

(J)            unless otherwise required by theDelaware Statutory Trust Act to execute on behalf of the Trust (either actingalone or together with the other Administrative Trustees) any documents thatsuch Administrative Trustee has the power to execute pursuant to this TrustAgreement; and

 

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

 

(ii)           As among the Trustees, the PropertyTrustee shall have the power, duty and authority to act on behalf of the Trustwith respect to the following matters:

 

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

 

(B)           the establishment of the PaymentAccount;

 

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

 

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

 

(E)           the exercise of all of the rights,powers and privileges of a holder of the Notes in accordance with the terms ofthis Trust Agreement;

 

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

 

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

 

(H)          to the extent provided in this TrustAgreement, the winding up of the affairs of and liquidation of the Trust, *provided* that the Administrative

 

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

 

(I)            the taking of any action incidentalto the foregoing as the Property Trustee may from time to time determine isnecessary or advisable to give effect to the terms of this Trust Agreement andprotect and conserve the Trust Property for the benefit of the Holders (withoutconsideration of the effect of any such action on any particular Holder).

 

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

 

(i)            the negotiation of the terms of, andthe execution and delivery of, the Purchase Agreements providing for the saleof the Preferred Securities in one or more transactions exempt fromregistration under the Securities Act, and in compliance with applicable statesecurities or blue sky laws; and

 

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

 

(c)           Notwithstanding anything herein tothe contrary, the Administrative Trustees are authorized and directed toconduct the affairs of the Trust and authorized to operate the Trust so thatthe Trust will not be taxable as a corporation or classified as other than agrantor trust for U.S. federal income tax purposes, so that the Notes will betreated as indebtedness of the Depositor for U.S. federal income tax purposesand so that the Trust will not be deemed to be an “investment company” requiredto be registered under the Investment Company Act. In respect thereof, eachAdministrative Trustee is authorized to take any action, not inconsistent withapplicable law, the Certificate of Trust or this Trust Agreement, that suchAdministrative Trustee determines in his or her discretion to be necessary ordesirable for such purposes, as long as such action does not adversely affectin any material respect the interests of the Holders of the OutstandingPreferred Securities.  In no event shallthe Administrative Trustees be liable to the Trust or the Holders for anyfailure to comply with this Section 2.5 to the extent that suchfailure results solely from a change in law or regulation or in theinterpretation thereof.

 

(d)           Any action taken by a Trustee inaccordance with its powers shall constitute the act of and serve to bind theTrust.  In dealing with any Trusteeacting on behalf of the Trust, no Person shall be required to inquire into theauthority of such Trustee to bind the Trust. Persons dealing with the Trust areentitled to rely conclusively on the power and authority of any Trustee as setforth in this Trust Agreement.

 

SECTION 2.6.*  Assets of Trust*.

 

The assets of the Trust shall consist of the TrustProperty.

 

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SECTION 2.7.*  Title to Trust Property*.

 

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

 

(b)           The Holders shall not have any rightor title to the Trust Property other than the undivided beneficial interest inthe assets of the Trust conferred by their Trust Securities and they shall haveno right to call for any partition or division of property, profits or rightsof the Trust except as described below. The Trust Securities shall be personalproperty giving only the rights specifically set forth therein and in thisTrust Agreement.

 

ARTICLE IIIPAYMENT ACCOUNT; PAYING AGENTS

 

SECTION 3.1.*  Payment Account*.

 

(a)           On or prior to the Closing Date, theProperty Trustee shall establish the Payment Account. The Property Trustee andthe Paying Agent shall have exclusive control and sole right of withdrawal withrespect to the Payment Account for the purpose of making deposits in andwithdrawals from the Payment Account in accordance with this Trust Agreement.All monies and other property deposited or held from time to time in thePayment Account shall be held by the Property Trustee in the Payment Accountfor the exclusive benefit of the Holders and for Distribution as hereinprovided.

 

(b)           The Property Trustee shall deposit inthe Payment Account, promptly upon receipt, all payments of principal of orinterest on, and any other payments with respect to, the Notes. Amounts held inthe Payment Account shall not be invested by the Property Trustee pendingdistribution 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

 

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

 

ARTICLE IVDISTRIBUTIONS; REDEMPTION

 

SECTION 4.1.*  Distributions*.

 

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

 

(i)            Distributions on the TrustSecurities shall be cumulative, and shall accumulate whether or not there arefunds of the Trust available for the payment of Distributions.  Distributions shall accumulate from January 27,2006, 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 April 30,2006.  If any date on which aDistribution is otherwise payable on the Trust Securities is not a BusinessDay, then the payment of such Distribution shall be made on the next succeedingBusiness Day (and no interest shall accrue in respect of the amounts whosepayment is so delayed for the period from and after each such date until thenext succeeding Business Day), except that, if such Business Day falls in thenext succeeding calendar year, such payment shall be made on the immediatelypreceding Business Day, in each case, with the same force and effect as if madeon such date (each date on which Distributions are payable in accordance withthis Section 4.1(a)(i), a “DistributionDate”);

 

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

 

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(iii)          Distributions shall accumulate inrespect of the Trust Securities at a fixed rate equal to 7.65% per annumthrough the interest payment date in January 2016 and thereafter at avariable rate equal to LIBOR plus 2.70% per annum of the Liquidation Amount ofthe Trust Securities, such rate being the rate of interest payable on theNotes. LIBOR shall be determined by the Calculation Agent in accordance with Schedule A.During the Fixed Rate Period, the amount of Distributions payable for anyperiod less than a full Distribution period shall be computed on the basis of a360-day year of twelve 30-day months and the amount payable for any partialperiod shall be computed on the basis of the number of days elapsed in a360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period, the amount of interest payablefor any Distribution period will be computed on the basis of a 360-day year andthe actual number of days elapsed in the relevant Distribution period. Theamount of Distributions payable for any period shall include any AdditionalInterest Amounts in respect of such period; and

 

(iv)          Distributions on the Trust Securitiesshall be made by the Paying Agent from the Payment Account and shall be payableon each Distribution Date only to the extent that the Trust has funds then onhand and available in the Payment Account for the payment of suchDistributions.

 

(b)           Distributions on the Trust Securitieswith respect to a Distribution Date shall be payable to the Holders thereof asthey appear on the Securities Register for the Trust Securities at the close ofbusiness on the relevant record date, which shall be at the close of businesson the fifteenth day (whether or not a Business Day) preceding the relevantDistribution Date, except that Distributions and any Additional InterestAmounts payable on the stated maturity (or any date of principal repayment uponearly maturity) of the principal of a Trust Security or on a Redemption Dateshall be paid to the Person to whom principal is paid.  Distributions payable on any Trust Securitiesthat are not punctually paid on any Distribution Date as a result of theDepositor having failed to make an interest payment under the Notes will ceaseto be payable to the Person in whose name such Trust Securities are registeredon the relevant record date, and such defaulted Distributions and anyAdditional Interest Amounts will instead be payable to the Person in whose namesuch 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)           As a condition to the payment of anyprincipal of or interest on the Trust Securities without the imposition ofwithholding tax, the Administrative Trustees shall require the previousdelivery of properly completed and signed applicable U.S. federal income taxcertifications (generally, an Internal Revenue Service Form W-9 (orapplicable successor form) in the case of a person that is a “United Statesperson” within the meaning of Section 7701(a)(30) of the Code or anInternal Revenue Service Form W-8 (or applicable successor form) in thecase of a person that is not a “United States person” within the meaning of Section 7701(a)(30)of the Code) and any other certification acceptable to it to enable the PropertyTrustee or any Paying Agent to determine their respective duties andliabilities with respect to any taxes or other charges that they may berequired to pay, deduct or withhold in respect of such Trust Securities.

 

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SECTION 4.2.*  Redemption*.

 

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

 

(b)           Notice of redemption shall be givenby the Property Trustee by first-class mail, postage prepaid, mailed not lessthan thirty (30) nor more than sixty (60) days prior to the Redemption Date toeach Holder of Trust Securities to be redeemed, at such Holder’s addressappearing in the Securities Register. All notices of redemption shall state:

 

(i)            the Redemption Date;

 

(ii)           the Redemption Price or, if theRedemption Price cannot be calculated prior to the time the notice is requiredto be sent, the estimate of the Redemption Price provided pursuant to theIndenture, as calculated by the Depositor, together with a statement that it isan estimate and that the actual Redemption Price will be calculated by theCalculation Agent on the fifth Business Day prior to the Redemption Date (andif an estimate is provided, a further notice shall be sent of the actualRedemption Price on the date that such Redemption Price is calculated);

 

(iii)          if less than all the Outstanding TrustSecurities are to be redeemed, the identification (and, in the case of partialredemption, the respective amounts) and Liquidation Amounts of the particularTrust Securities to be redeemed;

 

(iv)          that on the Redemption Date, theRedemption Price will become due and payable upon each such Trust Security, orportion thereof, to be redeemed and that Distributions thereon will cease toaccumulate on such Trust Security or such portion, as the case may be, on andafter said date, except as provided in Section 4.2(d);

 

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

 

(vi)          such other provisions as the PropertyTrustee deems relevant.

 

(c)           The Trust Securities (or portionthereof) redeemed on each Redemption Date shall be redeemed at the RedemptionPrice with the proceeds from the contemporaneous redemption or payment atmaturity of Notes. Redemptions of the Trust Securities (or portion thereof)shall be made and the Redemption Price shall be payable on each Redemption Dateonly to the extent that the Trust has funds then on hand and available in thePayment Account for the payment of such Redemption Price.  Under the Indenture, the Notes may beredeemed by the Depositor on any Interest Payment Date, at the Depositor’soption, on or after January 30, 2011, 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.

 

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(d)           If the Property Trustee gives anotice of redemption in respect of any Preferred Securities, then by 10:00 A.M.,New York City time, on the Redemption Date, the Depositor shall depositsufficient funds with the Property Trustee to pay the Redemption Price.  If such deposit has been made by such time,then by 12:00 noon, New York City time, on the Redemption Date, the PropertyTrustee will, with respect to Book-Entry Preferred Securities, irrevocably depositwith the Depositary for such Book-Entry Preferred Securities, to the extentavailable therefor, funds sufficient to pay the applicable Redemption Price andwill give such Depositary irrevocable instructions and authority to pay theRedemption Price to the Holders of the Preferred Securities. With respect toPreferred Securities that are not Book-Entry Preferred Securities, the PropertyTrustee will irrevocably deposit with the Paying Agent, to the extent availabletherefor, funds sufficient to pay the applicable Redemption Price and will givethe Paying Agent irrevocable instructions and authority to pay the RedemptionPrice to the Holders of the Preferred Securities upon surrender of theirPreferred Securities Certificates. Notwithstanding the foregoing, Distributionspayable on or prior to the Redemption Date for any Trust Securities (or portionthereof) called for redemption shall be payable to the Holders of such TrustSecurities as they appear on the Securities Register on the relevant recorddates for the related Distribution Dates. If notice of redemption shall havebeen given and funds deposited as required, then upon the date of such deposit,all rights of Holders holding Trust Securities (or portion thereof) so calledfor redemption will cease, except the right of such Holders to receive theRedemption Price and any Distribution payable in respect of the TrustSecurities on or prior to the Redemption Date, but without interest, and, inthe case of a partial redemption, the right of such Holders to receive a newTrust Security or Securities of authorized denominations, in aggregateLiquidation Amount equal to the unredeemed portion of such Trust Security orSecurities, and such Securities (or portion thereof) called for redemption willcease to be Outstanding. In the event that any date on which any RedemptionPrice is payable is not a Business Day, then payment of the Redemption Pricepayable on such date will be made on the next succeeding Business Day (and nointerest shall accrue in respect of the amounts whose payment is so delayed forthe period from and after each such date until the next succeeding BusinessDay), except that, if such Business Day falls in the next succeeding calendaryear, such payment shall be made on the immediately preceding Business Day, ineach case, with the same force and effect as if made on such date. In the eventthat payment of the Redemption Price in respect of any Trust Securities (orportion thereof) called for redemption is improperly withheld or refused andnot paid either by the Trust, Distributions on such Trust Securities (orportion thereof) 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)           Subject to Section 4.3(a),if less than all the Outstanding Trust Securities are to be redeemed on aRedemption Date, then the aggregate Liquidation Amount of Trust Securities tobe redeemed shall be allocated prorata to the Common Securities and the Preferred Securities based uponthe relative aggregate Liquidation Amounts of the Common Securities and thePreferred Securities.  The PreferredSecurities to be redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amountsnot more than sixty (60) days prior to the Redemption Date by the PropertyTrustee from the Outstanding Preferred Securities not previously called forredemption; *provided* that with respect to Holders thatwould be required to hold less than one hundred (100) but more than zero (0)Trust Securities as a result of such

 

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redemption, the Trust shall redeem Trust Securities ofeach such Holder so that after such redemption such Holder shall hold eitherone hundred (100) Trust Securities or such Holder no longer holds any TrustSecurities, and shall use such method (including, without limitation, by lot)as the Trust shall deem fair and appropriate; and *provided*, *further*,that so long as the Preferred Securities are Book-Entry Preferred Securities,such selection shall be made in accordance with the Applicable Depositary Proceduresfor the Preferred Securities by such Depositary. The Property Trustee shallpromptly notify the Securities Registrar in writing of the Preferred Securities(or portion thereof) selected for redemption and, in the case of any PreferredSecurities selected for partial redemption, the Liquidation Amount thereof tobe redeemed. For all purposes of this Trust Agreement, unless the contextotherwise requires, all provisions relating to the redemption of PreferredSecurities shall relate, in the case of any Preferred Securities redeemed or tobe redeemed only in part, to the portion of the aggregate Liquidation Amount ofPreferred Securities that has been or is to be redeemed.

 

(f)            The Trust in issuing the TrustSecurities may use “CUSIP” numbers (if then generally in use), and, if so, theProperty Trustee shall indicate the “CUSIP” numbers of the Trust Securities innotices of redemption and related materials as a convenience to Holders; *provided* that any such notice may statethat no representation is made as to the correctness of such numbers either asprinted on the Trust Securities or as contained in any notice of redemption andrelated materials.

 

SECTION 4.3.*  Subordination of CommonSecurities*.

 

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

 

(b)           In the case of the occurrence of anyEvent of Default, the Holders of the Common Securities shall have no right toact with respect to any such Event of Default under this Trust Agreement untilall such Events of Default with respect to the Preferred Securities have beencured, waived or otherwise eliminated. Until all such Events of Default underthis Trust Agreement with respect to the Preferred Securities have been socured, waived or otherwise

 

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eliminated, the Property Trustee shall act solely onbehalf of the Holders of the Preferred Securities and not on behalf of theHolders of the Common Securities, and only the Holders of all the PreferredSecurities will have the right to direct the Property Trustee to act on theirbehalf.

 

SECTION 4.4.*  Payment Procedures*.

 

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

 

SECTION 4.5.*  Withholding Tax*.

 

(a)           The Trust and the AdministrativeTrustees shall comply with all withholding and backup withholding taxrequirements under United States federal, state and local law.  The Administrative Trustees on behalf of theTrust shall request, and the Holders shall provide to the Trust, such forms orcertificates as are necessary to establish an exemption from withholding andbackup withholding tax with respect to each Holder and any representations andforms as shall reasonably be requested by the Administrative Trustees on behalfof the Trust to assist it in determining the extent of, and in fulfilling, itswithholding and backup withholding tax obligations.  The Administrative Trustees shall filerequired forms with applicable jurisdictions and, unless an exemption fromwithholding and backup withholding tax is properly established by a Holder,shall remit amounts withheld with respect to the Holder to applicablejurisdictions. To the extent that the Trust is required to withhold and payover 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, the AdministrativeTrustees on behalf of the Trust may reduce subsequent Distributions by theamount 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 U.S. federal, state and local tax andinformation returns and reports required to be filed by or in respect of theTrust. The Administrative Trustees shall prepare at the principal office of theTrust in the United States, as defined for purposes of Treasury regulations section 301.7701-7,and furnish (or cause to be prepared and furnished), by January 31 in eachtaxable year of the Trust to each Holder all

 

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InternalRevenue Service forms and returns required to be provided by the Trust. TheAdministrative 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.

 

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)           If at any time the Depositor or anyof its Affiliates (in either case, a “DepositorAffiliate”) is the Owner or Holder of any Preferred Securities, suchDepositor Affiliate shall have the right to deliver to the Property Trustee allor such portion of its Preferred Securities as it elects and, subject tocompliance with Section 2.2 and Section 3.5 of the Indenture,receive, in exchange therefor, a Like Amount of Notes. Such election shall beexercisable effective on any Distribution Date by such Depositor Affiliatedelivering 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 to Section 2.2and Section 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)           In the case of an exchange describedin Section 4.9(a), the Property Trustee on behalf of the Trustwill, on the date of such exchange, exchange Notes having a principal amountequal to a proportional amount of the aggregate Liquidation Amount of theOutstanding Common Securities, based on the ratio of the aggregate LiquidationAmount of the Preferred Securities exchanged pursuant to Section 4.9(a) dividedby the aggregate Liquidation Amount of the Preferred Securities Outstandingimmediately prior to such exchange, for such proportional

 

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

 

SECTION 4.10.*  Calculation Agent*.

 

(a)           The Calculation Agent may be removedby the Administrative Trustees at any time. Notwithstanding the foregoing, the Property Trustee shall initially,and, subject to the immediately following sentence, for so long as it holds anyof the Notes, be the Calculation Agent for purposes of determining LIBOR foreach Distribution Date. If the Calculation Agent is unable or unwilling to actas such or is removed by the Administrative Trustees, the AdministrativeTrustees will promptly appoint as a replacement Calculation Agent the Londonoffice of a leading bank which is engaged in transactions in three-monthEurodollar deposits in the international Eurodollar market and which does notcontrol or is not controlled by or under common control with the AdministrativeTrustee or its Affiliates.  TheCalculation Agent may not resign its duties without a successor having beenduly appointed.

 

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

 

SECTION 4.11.*  Certain Accounting Matters*.

 

(a)           At all times during the existence ofthe Trust, the Administrative Trustees shall keep, or cause to be kept at theprincipal office of the Trust in the United States, as defined for purposes ofTreasury Regulations section 301.7701-7, full books of account, recordsand supporting documents, which shall reflect in reasonable detail eachtransaction of the Trust. The books of account shall be maintained on theaccrual method of accounting, in accordance with generally accepted accountingprinciples, consistently applied.

 

(b)           The Administrative Trustees shalleither (i) if the Depositor is then subject to such reportingrequirements, cause each Form 10-K and Form 10-Q prepared by theDepositor and

 

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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 statementsof the Trust, including a balance sheet of the Trust as of the end of suchFiscal Year, and the related statements of income or loss.

 

(c)           If the Depositor intends to file itsannual and quarterly information with the Commission in electronic formpursuant to Regulation S-T of the Commission using the Commission’s ElectronicData Gathering, Analysis and Retrieval (“EDGAR”)system, the Administrative Trustees shall notify the Property Trustee in themanner prescribed herein of each such annual and quarterly filing.  The Property Trustee is hereby authorized anddirected to access the EDGAR system for purposes of retrieving the financialinformation so filed. Compliance with the foregoing shall constitute deliveryby the Administrative Trustees of its financial statements to the PropertyTrustee in compliance with the provisions of section 314(a) of theTrust Indenture Act, if applicable.  TheProperty Trustee shall have no duty to search for or obtain any electronic orother filings that the Depositor makes with the Commission, regardless ofwhether such filings are periodic, supplemental or otherwise.  Delivery of reports, information anddocuments to the Property Trustee pursuant to this Section 4.11(c) shallbe solely for purposes of compliance with this Section 4.11 and, ifapplicable, with Section 314(a) of the Trust Indenture Act. TheProperty Trustee’s receipt of such reports, information and documents shall notconstitute notice to it of the content thereof or any matter determinable fromthe content thereof, including the Depositor’s compliance with any of itscovenants hereunder, as to which the Property Trustee is entitled to rely uponOfficers’ Certificates.

 

(d)           The Trust shall maintain one or morebank accounts in the United States, as defined for purposes of TreasuryRegulations section 301.7701-7, in the name and for the sole benefit ofthe Trust; *provided*, *however*,that all payments of funds in respect of the Notes held by the Property Trusteeshall be made directly to the Payment Account and no other funds of the Trustshall be deposited in the Payment Account. The sole signatories for suchaccounts (including the Payment Account) shall be designated by the PropertyTrustee.

 

ARTICLE VSECURITIES

 

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.

 

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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, evidencing anaggregate of One Thousand Five Hundred Fifty (1,550) Common Securities havingan aggregate Liquidation Amount of One Million Five Hundred Fifty ThousandDollars ($1,550,000), against receipt by the Trust of the aggregate purchaseprice of such Common Securities of One Million Five Hundred Fifty ThousandDollars ($1,550,000). Contemporaneously therewith and with the sale by theTrust to the Holders of an aggregate of Fifty Thousand (50,000) PreferredSecurities having an aggregate Liquidation Amount of Fifty Million Dollars ($50,000,000),an Administrative Trustee, on behalf of the Trust, shall purchase from theDepositor Notes, to be registered in the name of the Property Trustee on behalfof the Trust and having an aggregate principal amount equal to Fifty-OneMillion Five Hundred Fifty Thousand Dollars ($51,550,000), and, in satisfaction of the purchaseprice for such Notes, the Property Trustee, on behalf of the Trust, shalldeliver to the Depositor the sum of Fifty-One Million Five Hundred FiftyThousand Dollars ($51,550,000) (being the aggregate amount paid by the Holdersfor the Preferred Securities, and the amount paid by the Depositor for theCommon Securities).

 

SECTION 5.4.*  The Securities Certificates*.

 

(a)           The Preferred Securities Certificatesshall be issued in minimum denominations of $100,000 Liquidation Amount andintegral multiples of $1,000 in excess thereof, and the Common SecuritiesCertificates shall be issued in minimum denominations of  $10,000 Liquidation Amount and integral multiplesof $1,000 in excess thereof.  TheSecurities Certificates shall be executed on behalf of the Trust by manual orfacsimile signature of at least one Administrative Trustee. SecuritiesCertificates bearing the signatures of individuals who were, at the time whensuch signatures shall have been affixed, authorized to sign such SecuritiesCertificates on behalf of the Trust shall be validly issued and entitled to thebenefits of this Trust Agreement, notwithstanding that such individuals or anyof them shall have ceased to be so authorized prior to the delivery of suchSecurities Certificates or did not have such authority at the date of deliveryof such Securities Certificates.

 

(b)           On the Closing Date, upon the writtenorder of an authorized officer of the Depositor, the Administrative Trusteesshall cause Securities Certificates to be executed on behalf of the Trust anddelivered, without further corporate action by the Depositor, in authorizeddenominations.

 

(c)           The Preferred Securities issued toQIBs/QPs shall be, except as provided in Section 5.6, Book-EntryPreferred Securities issued in the form of one or more Global PreferredSecurities registered in the name of the Depositary, or its nominee anddeposited with the

 

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Depositary or a custodian for the Depositary forcredit by the Depositary to the respective accounts of the DepositaryParticipants thereof (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)           A Preferred Security shall not bevalid until authenticated by the manual signature of an authorized signatory ofthe Property Trustee. Such signature shall be conclusive evidence that thePreferred Security has been authenticated under this Trust Agreement.  Upon written order of the Trust signed by oneAdministrative Trustee, the Property Trustee shall authenticate the PreferredSecurities for original issue.  TheProperty Trustee may appoint an authenticating agent that is a U.S. Personacceptable to the Trust to authenticate the Preferred Securities. A CommonSecurity need not be so authenticated and shall be valid upon execution by oneor 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 private corporationsfor profit organized under the General Corporation Law of the State ofDelaware.

 

SECTION 5.6.*  Book-Entry Preferred Securities*.

 

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

 

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

 

(b)           If any Global Preferred Security isto be exchanged for Definitive Preferred Securities Certificates or canceled inpart, or if any Definitive Preferred Securities Certificate is to be exchangedin whole or in part for any Global Preferred Security, then either (i) suchGlobal Preferred Security shall be so surrendered for exchange or cancellationas provided in this Article V or (ii) the aggregateLiquidation Amount represented by such Global Preferred Security shall bereduced, subject to Section 5.4, or increased by an amount equal tothe Liquidation Amount represented by that portion of the Global PreferredSecurity to be so exchanged or canceled, or equal to the Liquidation Amountrepresented by such Definitive Preferred Securities Certificates to be soexchanged for any Global Preferred Security, as the case may be, by means of anappropriate adjustment made on the records of the Securities Registrar,whereupon the Property Trustee, in accordance with the Applicable Depositary Procedures,shall instruct the Depositary or its authorized representative to make 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)           Every Definitive Preferred SecuritiesCertificate executed and delivered upon registration or transfer of, or inexchange for or in lieu of, a Global Preferred Security or any portion thereofshall be executed and delivered in the form of, and shall be, a GlobalPreferred Security, unless such Definitive Preferred Securities Certificate isregistered in the name of a Person other than the Depositary for such GlobalPreferred Security or a nominee thereof.

 

(d)           The Depositary or its nominee, asregistered owner of a Global Preferred Security, shall be the Holder of suchGlobal Preferred Security for all purposes under this Trust Agreement and theGlobal Preferred Security, and Owners with respect to a Global PreferredSecurity shall hold such interests pursuant to the Applicable DepositaryProcedures. The Securities Registrar and the Trustees shall be entitled to dealwith the Depositary for all purposes of this Trust Agreement relating to theGlobal Preferred Securities (including the payment of the Liquidation Amount ofand Distributions on the Book-Entry Preferred Securities represented therebyand the giving of instructions or directions by Owners of Book-Entry PreferredSecurities represented thereby and the giving of notices) as the sole Holder ofthe Book-Entry Preferred Securities represented thereby and shall have noobligations to the Owners thereof. None of the Trustees nor the SecuritiesRegistrar shall have any liability in respect of any transfers effected by theDepositary.

 

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

 

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

 

(f)            To the extent that a notice or othercommunication to the Holders is required under this Trust Agreement, for solong as Preferred Securities are represented by a Global Preferred Security,the Trustees shall give all such notices and communications to the Depositary,and shall have no obligations to the Owners.

 

SECTION 5.7.*  Registration of Transfer andExchange of Preferred Securities Certificates*.

 

(a)           The Property Trustee shall keep orcause to be kept, at the Corporate Trust Office, a register or registers (the “Securities Register”) in which theregistrar and transfer agent with respect to the Trust Securities (the “Securities Registrar”), subject tosuch reasonable regulations as it may prescribe, shall provide for theregistration of Preferred Securities Certificates and Common SecuritiesCertificates and registration of transfers and exchanges of PreferredSecurities Certificates as herein provided. The Person acting as the PropertyTrustee shall at all times also be the Securities Registrar. The provisions of Article VIIIshall apply to the Property Trustee in its role as Securities Registrar.

 

(b)           Subject to Section 5.7(d), uponsurrender for registration of transfer of any Preferred Securities Certificateat the office or agency maintained pursuant to Section 5.7(f), theAdministrative Trustees or any one of them shall execute by manual or facsimilesignature and deliver to the Property Trustee, and the Property Trustee shallauthenticate and deliver, in the name of the designated transferee ortransferees, one or more new Preferred Securities Certificates in authorizeddenominations of a like aggregate Liquidation Amount as may be required by thisTrust Agreement dated the date of execution by such Administrative Trustee orTrustees.  At the option of a Holder,Preferred Securities Certificates may be exchanged for other PreferredSecurities Certificates in authorized denominations and of a like aggregateLiquidation Amount upon surrender of the Preferred Securities Certificate to beexchanged at 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)           The Securities Registrar shall not berequired, (i) to issue, register the transfer of or exchange any PreferredSecurity during a period beginning at the opening of business fifteen (15) daysbefore the day of selection for redemption of such Preferred Securitiespursuant to

 

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Article IV and ending at theclose of business on the day of mailing of the notice of redemption or (ii) toregister the transfer of or exchange any Preferred Security so selected forredemption in whole or in part, except, in the case of any such PreferredSecurity to be redeemed in part, any portion thereof not to be redeemed.

 

(d)           Every Preferred SecuritiesCertificate presented or surrendered for registration of transfer or exchangeshall be duly endorsed, or be accompanied by a written instrument of transferin form satisfactory to the Securities Registrar duly executed by the Holder orsuch Holder’s attorney duly authorized in writing and accompanied by acertificate of the transferee substantially in the form set forth as Exhibit Ehereto.

 

(e)           No service charge shall be made forany registration of transfer or exchange of Preferred Securities Certificates,but the Property Trustee on behalf of the Trust may require payment of a sumsufficient to cover any tax or governmental charge that may be imposed inconnection with any transfer or exchange of Preferred Securities Certificates.

 

(f)            The Administrative Trustees shalldesignate an office or offices or agency or agencies where Preferred SecuritiesCertificates may be surrendered for registration of transfer or exchange and initiallydesignate the Corporate Trust Office as its office and agency for suchpurposes. The Administrative Trustees shall give prompt written notice to theDepositor, the Property Trustee and to the Holders of any change in thelocation of any such office or agency.

 

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

 

(h)           Neither the Trustee nor theSecurities Registrar shall be responsible for ascertaining whether any transferhereunder complies with the registration provisions of or any exemptions fromthe Securities Act, applicable state securities laws or the applicable laws ofany other jurisdiction, ERISA, the Code or the Investment Company Act; *provided* that if a certificate is specifically required bythe express terms of this Section 5.7 to be delivered to the Trustee orthe Securities Registrar by a Holder or transferee of a Security, the Trusteeand the Securities Registrar shall be under a duty to receive and examine thesame to determine whether or not the certificate substantially conforms on itsface to 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 orStolen Securities Certificates*.

 

(a)           If any mutilated SecuritiesCertificate shall be surrendered to the Securities Registrar together with suchsecurity or indemnity as may be required by the Securities Registrar to saveeach of the Trustees harmless, the Administrative Trustees, or any one of them,on behalf of the Trust, shall execute and make available for delivery inexchange therefor a new Securities Certificate of like class, tenor anddenomination.

 

(b)           If the Securities Registrar shallreceive evidence to its satisfaction of the destruction, loss or theft of anySecurities Certificate and there shall be delivered to the Securities Registrarsuch security or indemnity as may be required by it to save each of the Trusteesharmless, then in the absence of notice that such Securities Certificate shallhave been

 

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acquired by a protected purchaser, the AdministrativeTrustees, or any one of them, on behalf of the Trust, shall execute and makeavailable for delivery, and, with respect to Preferred Securities, the PropertyTrustee shall authenticate, in exchange for or in lieu of any such destroyed,lost or stolen Securities Certificate, a new Securities Certificate of likeclass, tenor and denomination.

 

(c)           In connection with the issuance ofany new Securities Certificate under this Section 5.8, theAdministrative Trustees or the Securities Registrar may require the payment ofa sum sufficient to cover any tax or other governmental charge that may beimposed in connection therewith.

 

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

 

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

 

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

 

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SECTION 5.11.*  Ownership of Common Securitiesby Depositor*.

 

(a)           On the Closing Date, the Depositorshall acquire, and thereafter shall retain, beneficial and record ownership ofthe Common Securities. Neither the Depositor nor any successor Holder of theCommon Securities may transfer less than all the Common Securities, and theDepositor or any such successor Holder may transfer the Common Securities only (i) inconnection with a consolidation or merger of the Depositor into another Person,or any conveyance, transfer or lease by the Depositor of its properties andassets substantially as an entirety to any Person (in which event such CommonSecurities will be transferred to such surviving entity, transferee or lessee,as the case may be), pursuant to Section 8.1 of the Indenture or (ii) 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)           Any Holder of the Common Securitiesshall be liable for the debts and obligations of the Trust in the manner and tothe extent set forth with respect to the Depositor and agrees that it shall besubject to all liabilities to which the Depositor may be subject and, prior tobecoming such a Holder, shall deliver to the Administrative Trustees aninstrument of assumption satisfactory to such Trustees.

 

SECTION 5.12.*  Restricted Legends*.

 

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

 

**“[IF THIS SECURITY IS A GLOBAL SECURITYINSERT:** THIS PREFERRED SECURITY IS A GLOBAL SECURITYWITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND ISREGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE OFDTC. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THENAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITEDCIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERREDSECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY DTC TOA NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BEREGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.

 

UNLESSTHIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TOGRAMERCY CAPITAL TRUST III OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGEOR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE

 

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&CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITYAS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGEOR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFULINASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTERESTHEREIN.]

 

THEPREFERRED SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED INA TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, ASAMENDED (THE “SECURITIES ACT”), AND SUCH PREFERRED SECURITIES OR ANY INTERESTTHEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCEOF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.  EACH PURCHASER OF ANY PREFERRED SECURITIES ISHEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED SECURITIES MAY BE RELYINGON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACTPROVIDED BY RULE 144A UNDER THE SECURITIES ACT.

 

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

 

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

 

THEHOLDER OF THIS SECURITY, OR ANY INTEREST THEREIN,  BY ITS ACCEPTANCE HEREOF OR THEREOF ALSOAGREES, REPRESENTS AND

 

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WARRANTSTHAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLANOR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITYACT OF 1974, AS AMENDED (“ERISA”),OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSEUNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT INTHE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIREOR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER OR HOLDEROF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVEREPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEEBENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLANTO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSONACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON ORENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCHPURCHASE.”

 

(b)           The above legend shall not be removedfrom any of the Preferred Securities Certificates unless there is delivered tothe Property Trustee and the Depositor satisfactory evidence, which may includean opinion of counsel, as may be reasonably required to ensure that any futuretransfers thereof may be made without restriction under the provisions of theSecurities Act and other applicable law. Upon provision of such satisfactory evidence, one or more of theAdministrative Trustees on behalf of the Trust shall execute and deliver to theProperty Trustee, and the Property Trustee shall deliver, at the writtendirection of the Administrative Trustees and the Depositor, PreferredSecurities Certificates that do not bear the legend.

 

SECTION 5.13.*  Form of Certificate ofAuthentication*.

 

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

 

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

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

 

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ARTICLE VIMEETINGS; 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.

 

SECTION 6.2.*  Meetings of Holders of thePreferred Securities*.

 

(a)           No annual meeting of Holders isrequired to be held. The Property Trustee, however, shall call a meeting of theHolders of the Preferred Securities to vote on any matter upon the writtenrequest of the Holders of at least twenty five percent (25%) in aggregateLiquidation Amount of the Outstanding Preferred Securities and theAdministrative Trustees or the Property Trustee may, at any time in theirdiscretion, call a meeting of the Holders of the Preferred Securities to voteon any matters as to which such Holders are entitled to vote.

 

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

 

(c)           If a quorum is present at a meeting,an affirmative vote by the Holders present, in person or by proxy, holdingPreferred Securities representing at least a Majority in Liquidation Amount ofthe Preferred Securities held by the Holders present, either in person or byproxy, at such meeting shall constitute the action of the Holders of thePreferred Securities, unless this Trust Agreement requires a lesser or greaternumber 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 the AdministrativeTrustees may direct, for verification prior to the time at which such voteshall be taken. Pursuant to a resolution of the Property Trustee, proxies maybe solicited in the name of the Property Trustee or one or more officers of theProperty Trustee. Only Holders of record shall be entitled to vote. When TrustSecurities are held jointly by several Persons, any one of them may vote at anymeeting in person or by proxy in respect of such Trust Securities, but if morethan one of

 

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themshall be present at such meeting in person or by proxy, and such joint ownersor their proxies so present disagree as to any vote to be cast, such vote shallnot be received in respect of such Trust Securities. A proxy purporting to beexecuted by or on behalf of a Holder shall be deemed valid unless challenged ator prior to its exercise, and the burden of proving invalidity shall rest onthe challenger. No proxy shall be valid more than three years after its date ofexecution.

 

SECTION 6.5.*  Holder Action by WrittenConsent*.

 

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

 

SECTION 6.6.*  Record Date for Voting andOther 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)           Any request, demand, authorization,direction, notice, consent, waiver or other action provided or permitted bythis Trust Agreement to be given, made or taken by Holders may be embodied inand evidenced by one or more instruments of substantially similar tenor signedby such Holders in person or by an agent thereof duly appointed in writing;and, except as otherwise expressly provided herein, such action shall becomeeffective when such instrument or instruments are delivered to anAdministrative Trustee. Such instrument or instruments (and the action embodiedtherein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing suchinstrument or instruments. Proof of execution of any such instrument or of awriting appointing any such agent shall be sufficient for any purpose of thisTrust Agreement and conclusive in favor of the Trustees, if made in the mannerprovided in this Section 6.7.

 

(b)           The fact and date of the execution byany Person of any such instrument or writing may be proved by the affidavit ofa witness of such execution or by a certificate of a notary public or otherofficer authorized by law to take acknowledgments of deeds, certifying that theindividual signing such instrument or writing acknowledged to him the executionthereof. Where such execution is by a signer acting in a capacity other thansuch signer’s

 

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individual capacity, such certificate or affidavitshall also constitute sufficient proof of such signer’s authority. The fact anddate of the execution of any such instrument or writing, or the authority ofthe Person executing the same, may also be proved in any other manner that anyTrustee receiving the same deems sufficient.

 

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

 

(d)           Any request, demand, authorization,direction, notice, consent, waiver or other Act of the Holder of any TrustSecurity shall bind every future Holder of the same Trust Security and the Holderof every Trust Security issued upon the registration of transfer thereof or inexchange therefor or in lieu thereof in respect of anything done, omitted orsuffered to be done by the Trustees, the Administrative Trustees or the Trustin reliance thereon, whether or not notation of such action is made upon suchTrust Security.

 

(e)           Without limiting the foregoing, aHolder entitled hereunder to take any action hereunder with regard to anyparticular Trust Security may do so with regard to all or any part of theLiquidation Amount of such Trust Security or by one or more duly appointedagents each of which may do so pursuant to such appointment with regard to allor any part of such Liquidation Amount.

 

(f)            If any dispute shall arise among theHolders or the Trustees with respect to the authenticity, validity or bindingnature of any request, demand, authorization, direction, notice, consent,waiver or other Act of such Holder or Trustee under this Article VI,then the determination of such matter by the Property Trustee shall beconclusive 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)           Except as expressly provided in thisTrust Agreement and in the Indenture and as otherwise required by law, noHolder of Preferred Securities shall have any right to vote or in any mannerotherwise control the administration, operation and management of the Trust orthe obligations of the parties hereto, nor shall anything herein set forth, orcontained in the terms of the Securities Certificates, be construed so as toconstitute the Holders from time to time as partners or members of anassociation.

 

(b)           So long as any Notes are held by theProperty Trustee on behalf of the Trust, the Property Trustee shall not (i) directthe time, method and place of conducting any proceeding for any remedyavailable to the Note Trustee, or exercise any trust or power conferred on theProperty Trustee with respect to the Notes, (ii) waive any past defaultthat may be waived under Section 5.13 of the Indenture or waive compliancewith any covenant or condition under Section 10.7 of the Indenture, (iii) exerciseany right to rescind or annul a declaration that the principal of all the Notesshall be due and payable or (iv) consent to any amendment, modification or

 

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termination of the Indenture or the Notes, where suchconsent shall be required, without, in each case, obtaining the prior approvalof the Holders of at least a Majority in Liquidation Amount of the PreferredSecurities; *provided* that where aconsent under the Indenture would require the consent of each holder of Notes(or each Holder of Preferred Securities) affected thereby, no such consentshall be given by the Property Trustee without the prior written consent ofeach Holder of Preferred Securities. The Property Trustee shall not revoke anyaction previously authorized or approved by a vote of the Holders of thePreferred 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 U.S. federalincome tax purposes.

 

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

 

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

 

(a)           For so long as any PreferredSecurities remain Outstanding, if, upon a Note Event of Default, the NoteTrustee fails or the holders of not less than twenty five percent (25%) inprincipal amount of the outstanding Notes fail to declare the principal of allof the Notes to be immediately due and payable, the Holders of at least twentyfive percent (25%) in Liquidation Amount of the Preferred Securities thenOutstanding shall have the right to make such declaration by a notice inwriting to the Property Trustee, the Depositor and the Note Trustee.  At any time after a declaration ofacceleration with respect to the Notes has been made and before a judgment ordecree for payment of the money due has been obtained by the Note Trustee asprovided in the Indenture, the Holders of at least a Majority in LiquidationAmount of the Preferred Securities, by written notice to the Property Trustee,the Depositor and the Note Trustee, may rescind and annul such declaration andits consequences if:

 

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

 

(A)          all overdue installments of intereston all of the Notes;

 

(B)           any accrued Additional Interest onall of the Notes;

 

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

 

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

 

(ii)           all Note Events of Default, otherthan the non-payment of the principal of the Notes that has become due solelyby such acceleration, have been cured or waived as provided in Section 5.13of the Indenture.

 

Upon receipt by the Property Trustee of written noticerequesting such an acceleration, or rescission and annulment thereof, byHolders of any part of the Preferred Securities, a record date shall beestablished for determining Holders of Outstanding Preferred Securitiesentitled to join in such notice, which record date shall be at the close ofbusiness on the day the Property Trustee receives such notice. The Holders onsuch record date, or their duly designated proxies, and only such Persons,shall be entitled to join in such notice, whether or not such Holders remainHolders after such record date; *provided*that, unless such declaration of acceleration, or rescission and annulment, asthe case may be, shall have become effective by virtue of the requisitepercentage having joined in such notice prior to the day that is ninety (90)days after such record date, such notice of declaration of acceleration, orrescission and annulment, as the case may be, shall automatically and withoutfurther action by any Holder be canceled and of no further effect. Nothing inthis paragraph shall prevent a Holder, or a proxy of a Holder, from giving,after expiration of such ninety (90)-day period, a new written notice ofdeclaration of acceleration, or rescission and annulment thereof, as the casemay be, that is identical to a written notice that has been canceled pursuantto the proviso to the preceding sentence, in which event a new record dateshall be established pursuant to the provisions of this Section 6.10(a).

 

(b)           For so long as any PreferredSecurities remain Outstanding, to the fullest extent permitted by law andsubject to the terms of this Trust Agreement and the Indenture, upon a NoteEvent of Default specified in paragraph (a) or (b) of Section 5.1of the Indenture, any Holder of Preferred Securities shall have the right toinstitute a proceeding directly against the Depositor, pursuant to Section 5.8of the Indenture, for enforcement of payment to such Holder of any amountspayable in respect of Notes having an aggregate principal amount equal to theaggregate Liquidation Amount of the Preferred Securities of such Holder.  Except as set forth in Section 6.10(a) andthis Section 6.10(b), the Holders of Preferred Securities shallhave no right to exercise directly any right or remedy available to the holdersof, or in respect of, the Notes.

 

(c)           Notwithstanding paragraphs (a) and(b) of this Section 6.10, the Holders of at least a Majorityin Liquidation Amount of the Preferred Securities may, on behalf of the Holdersof all the Preferred Securities, waive any Note Event of Default, except anyNote Event of Default arising from the failure to pay any principal of orpremium, if any, or interest (including any Additional Interest) on the Notes(unless such Note Event of Default has been cured and a sum sufficient to payall matured installments of interest and all principal and premium, if any, onall Notes due otherwise than by acceleration has been deposited with the NoteTrustee) or a Note Event of Default in respect of a covenant or provision thatunder the Indenture cannot be

 

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modified or amended without the consent of the holderof each outstanding Note. Upon any such waiver, such Note Event of Defaultshall cease to exist and any Note Event of Default arising therefrom shall bedeemed to have been cured for every purpose of the Indenture; but no suchwaiver shall affect any subsequent Note Event of Default or impair any rightconsequent thereon.

 

(d)           Notwithstanding paragraphs (a) and(b) of this Section 6.10, the Holders of at least a Majorityin Liquidation Amount of the Preferred Securities may, on behalf of the Holdersof all the Preferred Securities, waive any past Event of Default and itsconsequences.  Upon such waiver, any suchEvent of Default shall cease to exist, and any Event of Default arising therefromshall be deemed to have been cured, for every purpose of this Trust Agreement,but no such waiver shall extend to any subsequent or other Event of Default orimpair any right consequent thereon.

 

(e)           The Holders of a Majority inLiquidation Amount of the Preferred Securities shall have the right to directthe time, method and place of conducting any proceeding for any remedyavailable to the Property Trustee in respect of this Trust Agreement or theNotes or exercising any trust or power conferred upon the Property Trusteeunder this Trust Agreement; *provided*that, subject to Section 8.5 and Section 8.7, theProperty Trustee shall have the right to decline to follow any such directionif the Property Trustee being advised by counsel determines that the action sodirected may not lawfully be taken, or if the Property Trustee in good faithshall, by an officer or officers of the Property Trustee, determine that theproceedings so directed would be illegal or involve it in personal liability orbe unduly prejudicial to the rights of Holders not party to such direction, and*provided*, *further*, thatnothing in this Trust Agreement shall impair the right of the Property Trusteeto take any action deemed proper by the Property Trustee and which is notinconsistent with such direction.

 

ARTICLE VIIREPRESENTATIONS AND WARRANTIES

 

SECTION 7.1.*  Representations and Warrantiesof the Property Trustee and the Delaware Trustee*.

 

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

 

(a)           the Property Trustee is a nationalbanking association, duly organized and validly existing under the laws of theUnited States;

 

(b)           the Property Trustee has fullcorporate power, authority and legal right to execute, deliver and perform itsobligations under this Trust Agreement and has taken all necessary action toauthorize the execution, delivery and performance by it of this TrustAgreement;

 

(c)           the Delaware Trustee is a nationalbanking association, duly formed and validly existing under the laws of theUnited States;

 

(d)           the Delaware Trustee has fullcorporate power, authority and legal right to execute, deliver and perform itsobligations under this Trust Agreement and has taken all

 

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necessary action to authorize the execution, deliveryand performance by it of this Trust Agreement;

 

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

 

(f)            the execution, delivery andperformance of this Trust Agreement have been duly authorized by all necessarycorporate or other action on the part of the Property Trustee and the DelawareTrustee and do not require any approval of stockholders of the Property Trusteeand the Delaware Trustee 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)           neither the authorization, executionor delivery by the Property Trustee or the Delaware Trustee of this TrustAgreement nor the consummation of any of the transactions by the PropertyTrustee or the Delaware Trustee contemplated herein requires the consent orapproval of, the giving of notice to, the registration with or the taking ofany other action with respect to any governmental authority or agency under anyexisting law of the United States or the State of Delaware governing thebanking, trust or general powers of the Property Trustee or the DelawareTrustee, as the case may be; and

 

(h)           to the best of each of the PropertyTrustee’s and the Delaware Trustee’s knowledge, there are no proceedingspending or threatened against or affecting the Property Trustee or the DelawareTrustee 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 Property Trustee or the Delaware Trustee, as the case maybe, to enter into or perform its obligations as one of the Trustees under this TrustAgreement.

 

SECTION 7.2.*  Representations and Warrantiesof Depositor*.

 

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

 

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

 

(b)           the Depositor has full corporatepower, authority and legal right to execute, deliver and perform itsobligations under this Trust Agreement and has taken all necessary action toauthorize the execution, delivery and performance by it of this TrustAgreement;

 

(c)           this Trust Agreement has been dulyauthorized, executed and delivered by the Depositor and constitutes the legal,valid and binding agreement of the Depositor enforceable against the Depositorin accordance with its terms, subject to applicable bankruptcy, insolvency andsimilar laws affecting creditors’ rights generally and to general principles ofequity;

 

(d)           the Securities Certificates issued atthe Closing Date on behalf of the Trust have been duly authorized and will havebeen duly and validly executed, issued and delivered by the applicable Trusteespursuant to the terms and provisions of, and in accordance with the requirementsof, this Trust Agreement and the Holders will be, as of such date, entitled tothe benefits of this Trust Agreement;

 

(e)           the execution, delivery andperformance of this Trust Agreement have been duly authorized by all necessarycorporate or other action on the part of the Depositor and do not require anyapproval of stockholders of the Depositor and such execution, delivery andperformance will not (i) violate the articles or certificate ofincorporation or by-laws (or other organizational documents) of the Depositoror violate any applicable law, governmental rule or regulation governingthe Depositor or any material portion of its property or any order, judgment ordecree applicable to the Depositor or any material portion of its property;

 

(f)            neither the authorization, executionor delivery by the Depositor of this Trust Agreement nor the consummation ofany of the transactions by the Depositor contemplated herein requires theconsent or approval of, the giving of notice to, the registration with or thetaking of any other action with respect to any governmental authority or agencyunder any existing law governing the Depositor or any material portion of itsproperty; and

 

(g)           there are no proceedings pending or,to the best of the Depositor’s knowledge, threatened against or affecting theDepositor or any material portion of its property 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 Depositor, as thecase may be, to enter into or perform its obligations under this TrustAgreement.

 

ARTICLE VIIITHE TRUSTEES

 

SECTION 8.1.*  Number of Trustees*.

 

The number of Trustees shall be five (5); *provided* that the Property Trustee and theDelaware Trustee may be the same Person, in which case the number of Trusteesshall be four (4). The number of Trustees may be increased or decreased by Actof the Holder of the Common

 

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Securitiessubject to Section 8.2, Section 8.3, and Section 8.4.The death, resignation, retirement, removal, bankruptcy, incompetence orincapacity to perform the duties of a Trustee shall not operate to annul, dissolveor 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 setforth in its most recent report of condition so published. If at any time theProperty Trustee shall cease to be eligible in accordance with the provisionsof this Section 8.2, it shall resign immediately in the manner andwith the effect hereinafter specified in this Article VIII.

 

SECTION 8.3.*  Delaware Trustee Required*.

 

(a)           If required by the Delaware StatutoryTrust Act, there shall at all times be a Delaware Trustee with respect to theTrust Securities. The Delaware Trustee shall either be (i) a naturalperson who is at least 21 years of age and a resident of the State of Delawareor (ii) a legal entity that has its principal place of business in theState of Delaware, otherwise meets the requirements of applicable Delaware lawand shall act through one or more persons authorized to bind such entity.  If at any time the Delaware Trustee shallcease to be eligible in accordance with the provisions of this Section 8.3,it shall resign immediately in the manner and with the effect hereinafterspecified in this Article VIII. The Delaware Trustee shall have the same rights, privileges andimmunities as the Property Trustee.

 

(b)           The Delaware Trustee shall not beentitled to exercise any powers, nor shall the Delaware Trustee have any of theduties and responsibilities, of the Property Trustee or the AdministrativeTrustees set forth herein. The Delaware Trustee shall be one of the trustees ofthe Trust for the sole and limited purpose of fulfilling the requirements of Section 3807of the Delaware Statutory Trust Act and for taking such actions as are requiredto be taken by a Delaware trustee under the Delaware Statutory Trust Act. Theduties (including fiduciary duties), liabilities and obligations of theDelaware Trustee shall be limited to (a) accepting legal process served onthe Trust in the State of Delaware and (b) the execution of anycertificates required to be filed with the Secretary of State of the State ofDelaware that the Delaware Trustee is required to execute under Section 3811of the Delaware Statutory Trust Act and there shall be no other duties(including fiduciary duties) or obligations, express or implied, at law or inequity, of the Delaware Trustee.

 

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SECTION 8.4.*  Appointment of AdministrativeTrustees*.

 

(a)           There shall at all times be one ormore Administrative Trustees hereunder with respect to the Trust Securities.Each Administrative Trustee shall be either a natural person who is at least 21years of age or a legal entity that shall act through one or more personsauthorized to bind that entity.  Each ofthe individuals identified as an “AdministrativeTrustee” in the preamble of this Trust Agreement hereby accepts his orher appointment as such.

 

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

 

SECTION 8.5.*  Duties and Responsibilities ofthe Trustees*.

 

(a)           The rights, immunities, duties andresponsibilities of the Trustees shall be as provided by this Trust Agreementand there shall be no other duties (including fiduciary duties) or obligations,express or implied, at law or in equity, of the Trustees; *provided*, *however*, that ifan Event of Default known to the Property Trustee has occurred and iscontinuing, the Property Trustee shall, prior to the receipt of directions, ifany, from the Holders of at least a Majority in Liquidation Amount of thePreferred Securities, exercise such of the rights and powers vested in it bythis Trust Agreement, and use the same degree of care and skill in itsexercise, as a prudent person would exercise or use under the circumstances inthe conduct of such person’s own affairs. Notwithstanding the foregoing, no provision of this Trust Agreementshall require any of the Trustees to expend or risk its own funds or otherwiseincur any financial liability in the performance of any of its dutieshereunder, or in the exercise of any of its or their rights or powers, if it orthey shall have reasonable grounds for believing that repayment of such fundsor adequate indemnity against such risk or liability is not reasonably assuredto it. Whether or not herein expressly so provided, every provision of thisTrust Agreement relating to the conduct or affecting the liability of oraffording protection to the Trustees shall be subject to the provisions of thisSection 8.5. Nothing in 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)           All payments made by the PropertyTrustee or a Paying Agent in respect of the Trust Securities shall be made onlyfrom the revenue and proceeds from the Trust Property and only to the extentthat there shall be sufficient revenue or proceeds from the Trust Property to

 

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enable the Property Trustee or a Paying Agent to makepayments in accordance with the terms hereof. Each Holder, by its acceptance ofa Trust Security, agrees that it will look solely to the revenue and proceedsfrom the Trust Property to the extent legally available for distribution to itas herein provided and that the Trustees are not personally liable to it forany amount distributable in respect of any Trust Security or for any otherliability 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)           No provisions of this Trust Agreementshall be construed to relieve the Property Trustee from liability with respectto matters that are within the authority of the Property Trustee under thisTrust Agreement for its own negligent action, negligent failure to act orwillful misconduct, except that:

 

(i)            the Property Trustee shall not beliable for any error or judgment made in good faith by an authorized officer ofthe Property Trustee, unless it shall be proved that the Property Trustee wasnegligent in ascertaining the pertinent facts;

 

(ii)           the Property Trustee shall not beliable with respect to any action taken or omitted to be taken by it in goodfaith in accordance with the direction of the Holders of at least a Majority inLiquidation Amount of the Preferred Securities relating to the time, method andplace of conducting any proceeding for any remedy available to the PropertyTrustee hereunder or under the Indenture, or exercising any trust or powerconferred upon the Property Trustee under this Trust Agreement;

 

(iii)          the Property Trustee’s sole duty withrespect to the custody, safe keeping and physical preservation of the Notes andthe Payment Account shall be to deal with such Property in a similar manner asthe Property Trustee deals with similar property for its own account, subjectto the protections and limitations on liability afforded to the PropertyTrustee under this Trust Agreement;

 

(iv)          the Property Trustee shall not beliable for any interest on any money received by it except as it may otherwiseagree in writing with the Depositor; and money held by the Property Trusteeneed not be segregated from other funds held by it except in relation to thePayment Account maintained by the Property Trustee pursuant to Section 3.1and except to the extent otherwise required by law; and

 

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

 

SECTION 8.6.*  Notices of Defaults andExtensions*.

 

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

 

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(b)           Within five (5) Business Daysafter the receipt of notice of the Depositor’s exercise of its right to deferthe payment of interest on the Notes pursuant to the Indenture, the PropertyTrustee shall transmit, in the manner and to the extent provided in Section 10.8,notice of such exercise to the Holders and the Administrative Trustees, unlesssuch exercise shall have been revoked.

 

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

 

(d)           The Property Trustee shall notify allHolders of the Preferred Securities of any notice of default received withrespect to the Notes.

 

SECTION 8.7.*  Certain Rights of PropertyTrustee*.

 

Subject to the provisions of Section 8.5:

 

(a)           the Property Trustee may conclusivelyrely and shall be protected in acting or refraining from acting in good faithand in accordance with the terms hereof upon any resolution, Opinion ofCounsel, certificate, written representation of a Holder or transferee,certificate of auditors or any other resolution, certificate, statement,instrument, opinion, report, notice, request, direction, consent, order,appraisal, bond, debenture, note, other evidence of indebtedness or other paperor document believed by it to be genuine and to have been signed or presentedby the proper party or parties;

 

(b)           if (i) in performing its dutiesunder this Trust Agreement the Property Trustee is required to decide betweenalternative courses of action, (ii) in construing any of the provisions ofthis Trust Agreement the Property Trustee finds a provision ambiguous orinconsistent with any other provisions contained herein or (iii) theProperty Trustee is unsure of the application of any provision of this TrustAgreement, then, except as to any matter as to which the Holders of thePreferred Securities are entitled to vote under the terms of this TrustAgreement, the Property Trustee shall deliver a notice to the Depositorrequesting the Depositor’s written instruction as to the course of action to betaken and the Property Trustee shall take such action, or refrain from takingsuch action, as the Property Trustee shall be instructed in writing to take, orto refrain from taking, by the Depositor; *provided*that if the Property Trustee does not receive such instructions of theDepositor within ten (10) Business Days after it has delivered such noticeor such reasonably shorter period of time set forth in such notice, theProperty Trustee may, but shall be under no duty to, take such action, orrefrain from taking such action, as the Property Trustee shall deem advisableand in the best interests of the Holders, in which event the Property Trusteeshall have no liability except for its own negligence, bad faith or willfulmisconduct;

 

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

 

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(d)           any direction or act of anAdministrative Trustee contemplated by this Trust Agreement shall besufficiently evidenced by a certificate executed by such Administrative Trusteeand setting forth such direction or act;

 

(e)           the Property Trustee shall have noduty to see to any recording, filing or registration of any instrument(including any financing or continuation statement or any filing under tax orsecurities laws) or any re-recording, re-filing or re-registration thereof;

 

(f)            the Property Trustee may consultwith counsel (which counsel may be counsel to the Property Trustee, theDepositor or any of its Affiliates, and may include any of its employees) andthe advice of such counsel shall be full and complete authorization andprotection in respect of any action taken, suffered or omitted by it hereunderin good faith and in reliance thereon and in accordance with such advice; theProperty Trustee shall have the right at any time to seek instructionsconcerning the administration of this Trust Agreement from any court ofcompetent jurisdiction;

 

(g)           the Property Trustee shall be underno obligation to exercise any of the rights or powers vested in it by thisTrust Agreement at the request or direction of any of the Holders pursuant tothis Trust Agreement, unless such Holders shall have offered to the PropertyTrustee reasonable security or indemnity against the costs, expenses (includingreasonable attorneys’ fees and expenses) and liabilities that might be incurredby it in compliance with such request or direction, including reasonable advancesas may be requested by the Property Trustee; *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)           the Property Trustee shall not bebound to make any investigation into the facts or matters stated in anyresolution, certificate, statement, instrument, opinion, report, notice,request, direction, consent, order, approval, bond, debenture, note or otherevidence of indebtedness or other paper or document, unless requested inwriting to do so by one or more Holders, but the Property Trustee may make suchfurther inquiry or investigation into such facts or matters as it may see fit,and, if the Property Trustee shall determine to make such inquiry or investigation,it shall be entitled to examine the books, records and premises of theDepositor, personally or by agent or attorney;

 

(i)            the Property Trustee may execute anyof the trusts or powers hereunder or perform any duties hereunder eitherdirectly or by or through its agents, attorneys, custodians or nominees and theProperty Trustee shall not be responsible for any negligence or misconduct onthe part of any such agent, attorney, custodian or nominee appointed with duecare by it hereunder;

 

(j)            whenever in the administration ofthis Trust Agreement the Property Trustee shall deem it desirable to receiveinstructions with respect to enforcing any remedy or right hereunder, theProperty Trustee (i) may request instructions from the Holders (whichinstructions may only be given by the Holders of the same proportion in

 

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Liquidation Amount of the Trust Securities as would beentitled to direct the Property Trustee under this Trust Agreement in respectof such remedy, right or action), (ii) may refrain from enforcing suchremedy or right or taking such other action until such instructions arereceived and (iii) shall be protected in acting in accordance with suchinstructions;

 

(k)           except as otherwise expresslyprovided by this Trust Agreement, the Property Trustee shall not be under anyobligation to take any action that is discretionary under the provisions ofthis Trust Agreement;

 

(l)            without prejudice to any otherrights available to the Property Trustee under applicable law, when theProperty Trustee incurs expenses or renders services in connection with aBankruptcy Event, such expenses (including legal fees and expenses of itsagents and counsel) and the compensation for such services are intended to constituteexpenses of administration under any bankruptcy law or law relating tocreditors rights generally; and

 

(m)          whenever in the administration of thisTrust Agreement the Property Trustee shall deem it desirable that a matter beproved or established prior to taking, suffering or omitting any actionhereunder, the Property Trustee (unless other evidence be herein specificallyprescribed) may, in the absence of bad faith on its part, request and rely onan Officers’ Certificate which, upon receipt of such request, shall be promptlydelivered 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.

 

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SECTION 8.10.*  Compensation; Reimbursement;Indemnity*.

 

The Depositor agrees:

 

(a)           to pay to the Trustees from time totime such reasonable compensation for all services rendered by them hereunderas may be agreed by the Depositor and the Trustees from time to time (whichcompensation shall not be limited by any provision of law in regard to thecompensation of a trustee of an express trust);

 

(b)           to reimburse the Trustees uponrequest for all reasonable expenses, disbursements and advances incurred ormade by the Trustees in accordance with any provision of this Trust Agreement(including the reasonable compensation and the expenses and disbursements oftheir agents and counsel), except any such expense, disbursement or advance asmay be attributable to their gross negligence, bad faith or willful misconduct;and

 

(c)           to the fullest extent permitted byapplicable law, to indemnify and hold harmless (i) each Trustee, (ii) anyAffiliate of any Trustee, (iii) any officer, director, shareholder,employee, representative or agent of any Trustee or any Affiliate of anyTrustee and (iv) any employee or agent of the Trust (referred to herein asan “Indemnified Person”) fromand against any loss, damage, liability, tax (other than income, franchise orother 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.

 

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SECTION 8.11.*  Resignation and Removal;Appointment of Successor*.

 

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

 

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

 

(c)           Unless an Event of Default shall haveoccurred and be continuing, the Property Trustee or the Delaware Trustee, orboth of them, may be removed (with or without cause) at any time by Act of theHolder of Common Securities.  If an Eventof Default shall have occurred and be continuing, the Property Trustee or theDelaware Trustee, or both of them, may be removed (with or without cause) atsuch time by Act of the Holders of at least a Majority in Liquidation Amount ofthe Preferred 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)           If any Trustee shall resign, beremoved or become incapable of acting as Trustee, or if a vacancy shall occurin the office of any Trustee for any reason, at a time when no Event of Defaultshall have occurred and be continuing, the Holder of the Common Securities, byAct of the Holder of the Common Securities, shall promptly appoint a successorTrustee or Trustees, and such successor Trustee and the retiring Trustee shallcomply with the applicable requirements of Section 8.12. If theProperty Trustee or the Delaware Trustee shall resign, be removed or becomeincapable of continuing to act as the Property Trustee or the Delaware Trustee,as the case may be, at a time when an Event of Default shall have occurred andbe continuing, the Holders of the Preferred Securities, by Act of the Holdersof a Majority in Liquidation Amount of the Preferred Securities, shall promptlyappoint a successor Property Trustee or Delaware Trustee, and such successorProperty Trustee or Delaware Trustee and the retiring Property Trustee orDelaware 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)           The Depositor shall give notice ofeach resignation and each removal of the Property Trustee or the DelawareTrustee and each appointment of a successor Property Trustee or DelawareTrustee to all Holders in the manner provided in Section 10.8.  Each notice shall

 

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include the name of the successor Property Trustee orDelaware Trustee and the address of its Corporate Trust Office if it is theProperty Trustee.

 

(f)            Notwithstanding the foregoing or anyother provision of this Trust Agreement, in the event any AdministrativeTrustee or a Delaware Trustee who is a natural person dies or becomes, in theopinion of the Holder of Common Securities, incompetent or incapacitated, thevacancy created by such death, incompetence or incapacity may be filled by (i) theunanimous act of the remaining Administrative Trustees if there are at leasttwo of them or (ii) otherwise by the Holder of the Common Securities (withthe successor in each case being a Person who satisfies the eligibilityrequirement for Administrative Trustees or Delaware Trustee, as the case maybe, set forth in Section 8.3 and Section 8.4).

 

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

 

SECTION 8.12.*  Acceptance of Appointment bySuccessor*.

 

(a)           In case of the appointment hereunderof a successor Trustee, each successor Trustee shall execute and deliver to theDepositor and to the retiring Trustee an instrument accepting such appointment,and thereupon the resignation or removal of the retiring Trustee shall becomeeffective and each such successor Trustee, without any further act, deed orconveyance, shall become vested with all the rights, powers, trusts and dutiesof the retiring Trustee; but, on request of the Trust or any successor Trusteesuch retiring Trustee shall, upon payment of its charges, duly assign, transferand deliver to such successor Trustee all Trust Property, all proceeds thereofand money held by such retiring Trustee hereunder with respect to the TrustSecurities and the Trust.

 

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

 

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

 

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

 

Any Person into which the Property Trustee or theDelaware Trustee may be merged or converted or with which it may beconsolidated, or any Person resulting from any merger, conversion orconsolidation to which such Trustee shall be a party, or any Person succeedingto 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.

 

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SECTION 8.14.*  Not Responsible for RecitalsIssuance of Securities and Representations*.

 

The recitals containedherein and in the Securities Certificates shall be taken as the statements ofthe Trust and the Depositor, and the Trustees do not assume any responsibilityfor their correctness.  The Trustees makeno representations as to the title to, or value or condition of, the propertyof the Trust or any part thereof, nor as to the validity or sufficiency of thisTrust Agreement, the Notes or the Trust Securities.  The Trustees shall not be accountable for theuse or application by the Depositor of the proceeds of the Notes. It is expresslyunderstood and agreed by the parties hereto that insofar as any document,agreement or certificate is executed on behalf of the Trust by any Trustee (i) suchdocument, agreement or certificate is executed and delivered by such Trustee,not in its individual capacity but solely as Trustee under this Trust Agreementin the exercise of the powers and authority conferred and vested in it, (ii) eachof the representations, undertakings and agreements made on the part of theTrust is made and intended not as representations, warranties, covenants,undertakings and agreements by any Trustee in its individual capacity but ismade and intended for the purpose of binding only the Trust and (iii) underno circumstances shall any Trustee in its individual capacity be personallyliable for the payment of any indebtedness or expenses of the Trust or 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 FileProofs of Claim*.

 

(a)           In case of any Bankruptcy Event (orevent that with the passage of time would become a Bankruptcy Event) relativeto the Trust or any other obligor upon the Trust Securities or the property ofthe Trust or of such other obligor or their creditors, the Property Trustee(irrespective of whether any Distributions on the Trust Securities shall thenbe due and payable and irrespective of whether the Property Trustee shall havemade any demand on the Trust for the payment of any past due Distributions)shall be entitled and empowered, to the fullest extent permitted by law, byintervention in such proceeding or otherwise:

 

(i)            to file and prove a claim for thewhole amount of any Distributions owing and unpaid in respect of the TrustSecurities and to file such other papers or documents as may be necessary oradvisable in order to have the claims of the Property Trustee (including anyclaim for the reasonable compensation, expenses, disbursements and advances ofthe Property Trustee, its agents and counsel) and of the Holders allowed insuch judicial proceeding; and

 

(ii)           to collect and receive any monies orother property payable or deliverable on any such claims and to distribute thesame;

 

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

 

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compensation, expenses, disbursements and advances ofthe Property Trustee, its agents and counsel, and any other amounts due theProperty Trustee.

 

(b)           Nothing herein contained shall bedeemed to authorize the Property Trustee to authorize or consent to or acceptor adopt on behalf of any Holder any plan of reorganization, arrangement,adjustment or compensation affecting the Trust Securities or the rights of anyHolder thereof or to authorize the Property Trustee to vote in respect of theclaim of any Holder in any such proceeding.

 

SECTION 8.16.*  Reports to the Property Trustee*.

 

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

 

(b)           The Depositor shall furnish (i) tothe Property Trustee; (ii) Taberna Capital Management, LLC; and (iii) anyOwner of the Preferred Securities reasonably identified to the Depositor andthe Trust (which identification may be made either by such Owner or by TabernaCapital Management, LLC) a duly completed and executed certificatesubstantively and substantially in the form attached hereto as Exhibit F,including the financial statements referenced in such Exhibit, whichcertificate and financial statements shall be so furnished by the Depositor notlater than forty five (45) days after the end of each of the first three fiscalquarters of each fiscal year of the Depositor and not later than ninety (90)days after the end of each fiscal year of the Depositor.

 

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

 

ARTICLE IXTERMINATION, LIQUIDATION AND MERGER

 

SECTION 9.1.*  Dissolution Upon ExpirationDate*.

 

Unless earlier dissolved, the Trust shallautomatically dissolve on January 30, 2041 (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:

 

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(a)           the occurrence of a Bankruptcy Eventin respect of, or the dissolution or liquidation of, the Depositor, in itscapacity as the Holder of the Common Securities, unless the Depositor shallhave transferred the Common Securities as provided by Section 5.11,in which case this provision shall refer instead to any such successor Holderof the Common Securities;

 

(b)           the written direction to the PropertyTrustee from the Holder of the Common Securities at any time to dissolve theTrust and, after satisfaction of any liabilities of the Trust as required byapplicable law, to distribute the Notes to Holders in exchange for thePreferred Securities (which direction is optional and wholly within thediscretion of the Holder of the Common Securities);

 

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

 

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

 

SECTION 9.3.*  Termination*.

 

The respective obligations and responsibilities of theTrustees and the Trust shall terminate upon the latest to occur of thefollowing: (a) the distribution by the Property Trustee to Holders of allamounts required to be distributed hereunder upon the liquidation of the Trustpursuant to Section 9.4, or upon the redemption of all of the TrustSecurities pursuant to Section 4.2; (b) the satisfaction ofany expenses owed by the Trust; and (c) the discharge of alladministrative duties of the Administrative Trustees, including the performanceof any tax reporting obligations with respect to the Trust or the Holders.  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)           If an Early Termination Eventspecified in Section 9.2(a), (b) or (d) occursor upon the Expiration Date, the Trust shall be liquidated by the PropertyTrustee as expeditiously as the Property Trustee shall determine to be possibleby distributing, after satisfaction of liabilities to creditors of the Trust asprovided by applicable law, to each Holder a Like Amount of Notes, subject to Section 9.4(d).Notice of liquidation shall be given by the Property Trustee not less thanthirty (30) nor more than sixty (60) days prior to the Liquidation Date to eachHolder of Trust Securities at such Holder’s address appearing in the SecuritiesRegister. All such notices of liquidation shall:

 

(i)            state the Liquidation Date;

 

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

 

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

 

(iii)          provide such information with respectto the mechanics by which Holders may exchange Securities Certificates forNotes, or if Section 9.4(d) applies, receive a LiquidationDistribution, as the Property Trustee shall deem appropriate.

 

(b)           Except where Section 9.2(c) orSection 9.4(d) applies, in order to effect the liquidation ofthe Trust and distribution of the Notes to Holders, the Property Trustee,either itself acting as exchange agent or through the appointment of a separateexchange agent, shall establish a record date for such distribution (whichshall not be more than forty five (45) days prior to the Liquidation Date norprior to the date on which notice of such liquidation is given to the Holders)and establish such procedures as it shall deem appropriate to effect thedistribution of Notes in exchange for the Outstanding Securities Certificates.

 

(c)           Except where Section 9.2(c) orSection 9.4(d) applies, after the Liquidation Date, (i) theTrust Securities will no longer be deemed to be Outstanding, (ii) certificatesrepresenting a Like Amount of Notes will be issued to Holders of SecuritiesCertificates, upon surrender of such Certificates to the exchange agent forexchange, (iii) the Depositor shall use its best efforts to have the Noteslisted on the New York Stock Exchange or on such other exchange, interdealerquotation system or self-regulatory organization on which the PreferredSecurities are then listed, if any, (iv) Securities Certificates not sosurrendered for exchange will be deemed to represent a Like Amount of Notesbearing accrued and unpaid interest in an amount equal to the accumulated andunpaid Distributions on such Securities Certificates until such certificatesare so surrendered (and until such certificates are so surrendered, no paymentsof interest or principal will be made to Holders of Securities Certificateswith respect to such Notes) and (v) all rights of Holders holding TrustSecurities will cease, except the right of such Holders to receive Notes uponsurrender of Securities Certificates.

 

(d)           Notwithstanding the other provisionsof this Section 9.4, if distribution of the Notes in the mannerprovided herein is determined by the Property Trustee not to be permitted orpractical, the Trust Property shall be liquidated, and the Trust shall be woundup by the Property Trustee in such manner as the Property Trustee determines.  In such event, Holders will be entitled toreceive out of the assets of the Trust available for distribution to Holders,after satisfaction of liabilities to creditors of the Trust as provided byapplicable law, an amount equal to the Liquidation Amount per Trust Security plusaccumulated and unpaid Distributions thereon to the date of payment (suchamount being the “LiquidationDistribution”). If, upon any such winding up the LiquidationDistribution can be paid only in part because the Trust has insufficient assetsavailable to pay in full the aggregate Liquidation Distribution, then, subjectto the next succeeding sentence, the amounts payable by the Trust on the TrustSecurities shall be paid on a pro ratabasis (based upon Liquidation Amounts). The Holder of the Common Securitieswill be entitled to receive 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.

 

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

 

The Trust may not merge with or into, consolidate,amalgamate, or be replaced by, or convey, transfer or lease its properties andassets substantially as an entirety to, any Person except pursuant to this Article IX.At the request of the Holders of the Common Securities, without the consent ofthe Holders of the Preferred Securities, the Trust may merge with or into,consolidate, amalgamate, or be replaced by or convey, transfer or lease itsproperties and assets substantially as an entirety to a trust organized as suchunder the laws of any State; *provided*that:

 

(a)           such successor entity either (i) expresslyassumes all of the obligations of the Trust under this Trust Agreement withrespect to the Preferred Securities or (ii) substitutes for the PreferredSecurities other securities having substantially the same terms as thePreferred Securities (such other Securities, the “Successor Securities”) so long as the Successor Securities havethe same priority as the Preferred Securities with respect to distributions andpayments upon liquidation, redemption and otherwise;

 

(b)           a trustee of such successor entitypossessing substantially the same powers and duties as the Property Trustee isappointed to hold the Notes;

 

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

 

(d)           such merger, consolidation,amalgamation, replacement, conveyance, transfer or lease does not adverselyaffect the rights, preferences and privileges of the Holders of the PreferredSecurities (including any Successor Securities) in any material respect;

 

(e)           such successor entity has a purposesubstantially identical to that of the Trust;

 

(f)            prior to such merger, consolidation,amalgamation, replacement, conveyance, transfer or lease, the Depositor hasreceived an Opinion of Counsel to the effect that (i) such merger,consolidation, amalgamation, replacement, conveyance, transfer or lease doesnot adversely affect the rights, preferences and privileges of the Holders ofthe Preferred Securities (including any Successor Securities) in any materialrespect; (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)           the Depositor or its permittedtransferee owns all of the common securities of such successor entity.

 

Notwithstanding the foregoing, the Trust shall not,except with the consent of Holders of all of the Preferred Securities,consolidate, amalgamate, merge with or into, or be replaced by or

 

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convey, transfer or lease its properties and assetssubstantially as an entirety to any other Person or permit any other entity toconsolidate, amalgamate, merge with or into, or replace, the Trust if suchconsolidation, amalgamation, merger, replacement, conveyance, transfer or leasewould cause the Trust or the successor entity to be taxable as a corporation orclassified as other than a grantor trust for U.S. federal income tax purposesor cause the Notes to be treated as other than indebtedness of the Depositorfor U.S. federal income tax purposes.

 

ARTICLE XMISCELLANEOUS 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 the legal representatives or heirs of such Person or any Holder forsuch Person, to claim an accounting, take any action or bring any proceeding inany court for a partition or winding up of the arrangements contemplatedhereby, nor otherwise affect the rights, obligations and liabilities of theparties hereto or any of them.

 

SECTION 10.2.*  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)           This Trust Agreement may be amendedfrom time to time by the Property Trustee, the Administrative Trustees and theHolder of all the Common Securities, without the consent of any Holder of thePreferred Securities, (i) to cure any ambiguity, correct or supplement anyprovision herein that may be defective or inconsistent with any other provisionherein, or to make or amend any other provisions with respect to matters orquestions arising under this Trust Agreement, which shall not be inconsistentwith the other provisions of this Trust Agreement, (ii) to modify,eliminate or add to any provisions of this Trust Agreement to such extent asshall be necessary to ensure that the Trust will neither be taxable as acorporation nor be classified as other than a grantor trust for United Statesfederal income tax purposes at all times that any Trust Securities areOutstanding or to ensure that the Notes are treated as indebtedness of theDepositor for United States federal income tax purposes, or to ensure that theTrust will not be required to register as an “investment company” under theInvestment

 

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Company Act or (iii) to add to the covenants,restrictions or obligations of the Depositor; *provided*that in the case of clauses (i), (ii) or (iii), such action shall notadversely affect in any material respect the interests of any Holder.

 

(b)           Except as provided in Section 10.3(c),any provision of this Trust Agreement may be amended by the Property Trustee,the Administrative Trustees and the Holder of all of the Common Securities andwith (i) the consent of Holders of at least a Majority in LiquidationAmount of the Preferred Securities and (ii) receipt by the Trustees of anOpinion of Counsel to the effect that such amendment or the exercise of anypower granted to the Trustees in accordance with such amendment will not causethe Trust to be taxable as a corporation or classified as other than a grantortrust for United States federal income tax purposes or affect the treatment ofthe Notes as indebtedness of the Depositor for United States federal income taxpurposes or affect the Trust’s exemption from status (or from any requirementto 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 connection with any modification ofthe Interest Payment Date, Redemption Date or Stated Maturity of the JuniorSubordinated Notes made by the Company and the Trust at the direction of anyholder of the Preferred Securities or a portion of the Preferred Securities asset forth in Section 6 of the Purchase Agreements.

 

(c)           Notwithstanding any other provisionof this Trust Agreement, without the consent of each Holder, this TrustAgreement may not be amended to (i) change the accrual rate, amount,currency or timing of any Distribution on or the redemption price of the TrustSecurities or otherwise adversely affect the amount of any Distribution orother payment required to be made in respect of the Trust Securities as of aspecified 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), Section 4.1,Section 4.2, Section 4.3, Section 6.10(e) orArticle IX.

 

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

 

(e)           If any amendment to this TrustAgreement is made, the Administrative Trustees or the Property Trustee shallpromptly provide to the Depositor and the Note Trustee a copy of suchamendment.

 

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(f)            No Trustee shall be required toenter into any amendment to this Trust Agreement that affects its own rights,duties or immunities under this Trust Agreement. The Trustees shall be entitledto receive an Opinion of Counsel and an Officers’ Certificate stating that anyamendment to this Trust Agreement is in compliance with this Trust Agreementand all conditions precedent herein provided for relating to such action havebeen met.

 

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

 

SECTION 10.4.*  Separability*.

 

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

 

SECTION 10.5.*  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)           Any report, notice, demand or othercommunication that by any provision of this Trust Agreement is required orpermitted to be given or served to or upon any Holder or the Depositor may begiven or served in writing delivered in person, or by reputable, overnightcourier, by telecopy or by deposit thereof, first-class postage prepaid, in theUnited States mail, addressed, (a) in the case of a Holder of PreferredSecurities, to such Holder as such Holder’s name and address may appear on theSecurities Register; and (b) in the case of the Holder of all

 

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the Common Securities or the Depositor, to GKK CapitalLP, 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 tosuch other address as may be specified in a written notice by the Holder of allthe Common Securities or the Depositor, as the case may be, to the PropertyTrustee. Such report, notice, demand or other communication to or upon a Holderor the Depositor shall be deemed to have been given when received in person,within one (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)           Any notice, demand or othercommunication that by any provision of this Trust Agreement is required orpermitted to be given or served to or upon the Property Trustee, the DelawareTrustee, the Administrative Trustees or the Trust shall be given in writing bydeposit thereof, first-class postage prepaid, in the U.S. mail, personaldelivery or facsimile transmission, addressed to such Person as follows: (i) withrespect to the Property Trustee to JPMorgan Chase Bank, National Association,600 Travis, 50th Floor, Houston, Texas 77002, Attention: WorldwideSecurities Services—Gramercy Capital Trust III, facsimile no. (713) 216-2101, (ii) with respect to the DelawareTrustee, to Chase Bank USA, National Association, c/o JPMorgan Chase Bank,National Association, 500 Stanton Christiana Road, Building 4 (3rd Floor),Newark, Delaware 19713, Attention: Worldwide Securities Services—GramercyCapital Trust III, facsimile no. (302) 552-6280; (iii) with respect to theAdministrative Trustees, to them at the address above for notices to theDepositor, marked “Attention: Administrative Trustees of Gramercy Capital TrustIII”, and (iv) with respect to the Trust, to its principal executiveoffice specified in Section 2.2, with a copy to the PropertyTrustee. Such notice, demand or other communication to or upon the Trust, theProperty Trustee or the Administrative Trustees shall be deemed to have beensufficiently given or made only upon actual receipt of the writing by theTrust, 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.

 

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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.

 

**[REMAINDER OF THIS PAGE INTENTIONALLYLEFT 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, as Property Trustee | 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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Exhibit A

 

**CERTIFICATE OF TRUST**

** **

**OF**

** **

**GRAMERCY CAPITAL TRUST III**

 

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

 

1              Name.  The name of the statutory trust formed bythis Certificate of Trust is: Gramercy Capital Trust III.

 

2              DelawareTrustee.  The name and businessaddress of the trustee of the Trust with its principal place of business in theState of Delaware are Chase Bank USA, National Association c/o JPMorgan ChaseBank, National Association, 500 Stanton Christiana Road, Building 4 (3rd Floor), Newark, Delaware19713, Attention: Worldwide Securities Services.

 

3              EffectiveDate. This Certificate of Trust shall be effective upon its filing with theSecretary of State of the State of Delaware.

 

IN WITNESS WHEREOF, the undersigned trustee has dulyexecuted this Certificate of Trust in accordance with Section 3811(a)(1) ofthe Act.

 
|   | CHASE BANK USA, NATIONAL ASSOCIATION, not in  its individual capacity, but solely as Delaware  Trustee |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    |   |   |
|   |                                                                                                   |
|   |                                                                                                   | Name: |
|   |                                                                                                   |   |
|   |                                                                                                   | Title: |

 

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Exhibit B

 

**[FORM OFCOMMON SECURITIES CERTIFICATE]**

 

**THISCOMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, ASAMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWSAND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPTPURSUANT TO AN EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITHAPPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT**

 
| **Certificate Number** | ** ** | **Number of Common Securities** |
|------------------------|------------|---------------------------------|
|                   |       |                            |
| **C-1**                | ** ** | **1,550**                       |

 

**CertificateEvidencing Common Securities**

 

**of**

 

**G****RAMERCY C****APITAL T****RUST III**

 

**FloatingRate Common Securities**

 

**(liquidationamount $1,000 per Common Security)**

 

Gramercy Capital Trust III,a statutory trust created under the laws of the State of Delaware (the “*Trust*”),hereby certifies that GKK Capital LP,a Delaware limited partnership (the “*Holder*”) is the registered owner of1,550 common securities of the Trust representing undivided common beneficialinterests in the assets of the Trust and designated the Gramercy Capital Trust IIIFloating Rate Common Securities (liquidation amount $1,000 per Common Security)(the “*CommonSecurities*”). Except in accordance with Section 5.11of the Trust Agreement (as defined below), the Common Securities are nottransferable and, to the fullest extent permitted by law, any attemptedtransfer hereof other than in accordance therewith shall be void. Thedesignations, rights, privileges, restrictions, preferences and other terms andprovisions of the Common Securities are set forth in, and this certificate andthe Common Securities represented hereby are issued and shall in all respectsbe subject to the terms and provisions of, the Amended and Restated TrustAgreement of the Trust, dated as of January 27, 2006 as the same may beamended from time to time (the “*Trust Agreement*”), among GKKCapital LP, as Depositor,JPMorgan Chase Bank, National Association, as Property Trustee, Chase Bank USA,National Association, as Delaware Trustee, the Administrative Trustees namedtherein and the Holders, from time to time, of Trust Securities. The Trust willfurnish a copy of the Trust Agreement to the Holder without charge upon writtenrequest to the Trust at its principal place of business or registered office.

 

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

 

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

 

Terms used but notdefined herein have the meanings set forth in the Trust Agreement.

 

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

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

 

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Exhibit C

 

**[FORM OFPREFERRED SECURITIES CERTIFICATE]**

 

“[IF THIS SECURITY IS A GLOBAL SECURITY INSERT: THISPREFERRED 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 PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSONOTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED INTHE TRUST AGREEMENT, AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN ATRANSFER OF THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BYA NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTEREDEXCEPT IN LIMITED CIRCUMSTANCES.

 

UNLESS THIS PREFERREDSECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO GRAMERCYCAPITAL TRUST III OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE ORPAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE &CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITYAS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGEOR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFULINASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTERESTHEREIN.]

 

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

 

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

 

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

 

THE HOLDER OF THISSECURITY, OR ANY INTEREST THEREIN,  BYITS ACCEPTANCE HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT ITIS NOT AN EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN ORARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACTOF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL REVENUECODE OF 1986, AS AMENDED (THE “CODE”) (EACH A “PLAN”), OR AN ENTITY WHOSEUNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT INTHE ENTITY, AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIREOR HOLD THIS PREFERRED SECURITY OR ANY INTEREST THEREIN. ANY PURCHASER ORHOLDER OF THE PREFERRED SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TOHAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT IT IS NOT AN EMPLOYEEBENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLANTO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSONACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON ORENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCHPURCHASE.

 

F-2

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| **Certificate  Number** | **Aggregate Liquidation Amount** |
|-------------------------|----------------------------------|
|                    | **Preferred Securities**         |

 

 

**Certificate Evidencing PreferredSecurities**

 

**of**

 

**GRAMERCYCAPITAL TRUST III**

 

**Floating Rate Preferred Securities(liquidation amount $1,000 per Preferred Security)**

 

Gramercy Capital Trust III,a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that                     ,a                   (the“Holder”) is the registeredowner of [ ] Preferred Securities [ifthe Preferred Security is a Global Security, then insert – or such othernumber of Preferred Securities represented hereby as may be set forth in therecords of the Securities Registrar hereinafter referred to in accordance withthe Trust Agreement (as defined below)] of the Trust representing an undividedpreferred beneficial interest in the assets of the Trust and designated theGramercy Capital Trust III Floating Rate Preferred Securities, (liquidationamount $1,000 per Preferred Security) (the “Preferred Securities”). Subject to the terms of the TrustAgreement (as defined below), the Preferred Securities are transferable on thebooks and records of the Trust, in person or by a duly authorized attorney,upon surrender of this certificate duly endorsed and in proper form fortransfer as provided in Section 5.7 of the Trust Agreement (asdefined below). The designations, rights, privileges, restrictions, preferencesand other terms and provisions of the Preferred Securities are set forth in,and this certificate and the Preferred Securities represented hereby are issuedand shall in all respects be subject to the terms and provisions of, theAmended and Restated Trust Agreement of the Trust, dated as of January 27,2006, as the same may be amended from time to time (the “Trust Agreement”), among GKK Capital LP, as Depositor, JPMorganChase Bank, National Association, as Property Trustee, Chase Bank USA, NationalAssociation, as Delaware Trustee, the Administrative Trustees named therein andthe Holders, from time to time, of Trust Securities.  The Trust will furnish a copy of the TrustAgreement to the Holder without charge upon written request to the PropertyTrustee at its Corporate Trust Office.

 

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

 

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

 

C-3

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

 

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

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

 

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

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

 

F-4

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**[FORM OF REVERSE OFSECURITY]**

** **

The Trust promises to pay Distributions from January 27,2006, or from the most recent Distribution Date to which Distributions havebeen paid or duly provided for, quarterly (subject to deferral as set forthherein) in arrears on January 30, April 30, July 30 and October 30of each year, commencing on April 30, 2006, at a fixed rate equal to 7.65%per annum through the interest payment date in January 2016 and thereafterat a variable rate equal to LIBOR plus 2.70% per annum of the LiquidationAmount of the Preferred Securities represented by this Preferred SecuritiesCertificate, together with any Additional Interest Amounts, in respect to suchperiod.

 

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

 

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

 

Under the Indenture, so long as no Note Event ofDefault has occurred and is continuing and upon thirty (30) days’ prior writtennotice, the Depositor shall have the right, at any time and from time to timeduring the term of the Notes, to defer the payment of interest on the Notes fora period of up to four (4) consecutive quarterly interest payment periods(each such extended interest payment period, an “Extension Period”), duringwhich Extension Period no interest shall be due and payable (except anyAdditional 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 (as defined in the Trust Agreement) of the TrustSecurities as they appear on the books and records of the Trust on the recorddate immediately preceding such termination date.

 

Distributions on the Securities must be paid on thedates payable (after giving effect to any Extension Period) to the extent thatthe Trust has funds available for the payment of such Distributions in thePayment Account of the Trust.  The Trust’sfunds available for Distribution to the Holders of the Preferred Securitieswill be limited to payments received from the Depositor.

 

During any Event of Default or any such ExtensionPeriod, the Depositor shall not (i) declare or pay any dividends ordistributions on, or redeem, purchase, acquire or make a liquidation paymentwith respect to, any of the Depositor’s limited partnership interests or (ii) makeany payment of principal of or any interest or premium, if any, on or repay,repurchase or redeem any debt securities of the Depositor that rank *pari passu*in all respects with or juniorin interest to the Notes (other than (a) repurchases, redemptions or otheracquisitions of limited partnership interests of the Depositor in connectionwith (1) any employment contract, benefit plan or other similararrangement with or for the benefit of any one or more employees, officers,directors or consultants, (2) a dividend reinvestment or limitedpartnership interests purchase

 

F-5

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plan or(3) the issuance of limited partnership interests of the Depositor (orsecurities convertible into or exercisable for units of limited partnershipinterests) as consideration in an acquisition transaction entered into prior tothe applicable Event of Default or Extension Period, (b) as a result of anexchange or conversion of any class or series of the Depositor’s limitedpartnership interests (or any capital stock or limited partnership interests ofa Subsidiary (as defined in the Indenture) of the Depositor) for any class orseries of the Depositor’s limited partnership interests or of any class orseries of the Depositor’s indebtedness for any class or series of the Depositor’slimited partnership interests, (c) the purchase of fractional interests inshares of the Depositor’s limited partnership interests pursuant to theconversion or exchange provisions of such limited partnership interests or thesecurity being converted or exchanged, (d) any declaration of a dividendin connection with any Rights Plan (as defined in the Indenture), the issuanceof rights, limited partnership interests or other property under any RightsPlan, or the redemption or repurchase of rights pursuant thereto or (e) anydividend in the form of limited partnership interests, warrants, options orother rights where the dividend limited partnership interests or the limitedpartnership interests issuable upon exercise of such warrants, options or otherrights is the same stock as that on which the dividend is being paid or ranks *pari passu*with or junior to such limitedpartnership interests).

 

On each Note Redemption Date, on the stated maturity(or any date of principal repayment upon early maturity) of the Notes and oneach other date on (or in respect of) which any principal on the Notes isrepaid, the Trust will be required to redeem a Like Amount of Trust Securitiesat the Redemption Price.  Under theIndenture, the Notes may be redeemed by the Depositor on any Interest PaymentDate, at the Depositor’s option, on or after January 30, 2011 in whole orin part from time to time at the Optional Note Redemption Price of theprincipal amount thereof or the redeemed portion thereof, as applicable,together, in the case of any such redemption, with accrued interest, includingany Additional Interest, to but excluding the date fixed for redemption.  The Notes may also be redeemed by theDepositor, at its option, at any time, in whole but not in part, upon theoccurrence of an Investment Company Event or a Tax Event at the Special NoteRedemption Price; *provided* thatsuch Investment Company Event or a Tax Event is continuing on the RedemptionDate.

 

The Trust Securities redeemed on each Redemption Dateshall be redeemed at the Redemption Price with the proceeds from 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 hand andavailable in the Payment Account for the payment of such Redemption Price.

 

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

 

F-6

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The indebtedness evidenced by the Notes is, to theextent provided in the Indenture, subordinate and junior in right of payment tothe prior payment in full of all Senior Debt (as defined in the Indenture), andthis Security is issued subject to the provisions of the Indenture with respectthereto.

 

F-7

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**ASSIGNMENT**

** **

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

 

 

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

 

 

(Insertaddress and zip code of                                                                                                 assignee) and irrevocably appoints agent to transfer this Preferred SecuritiesCertificate on the books of the Trust. The agent may substitute another to actfor him or her.

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

 

 

The signature(s) should be guaranteed by an eligibleguarantor institution (banks, stockbrokers, savings and loan associations andcredit unions with membership in an approved signature guarantee medallionprogram), pursuant to S.E.C. Rule 17Ad-15.

 

F-8

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Exhibit D

 

**Junior Subordinated Indenture**

 

D-1

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Exhibit E

 

**Form ofTransferee Certificateto be Executed by Transferees**

 

                         ,[ ]

 

JPMorgan Chase Bank,National Association 600 Travis, 50th Floor Houston, Texas 77002 Attention:  Worldwide Securities Services

 

GKK Capital LP Gramercy Capital Trust III420 Lexington Avenue New York, NY 10170

 

Re:                               Purchaseof $                         statedliquidation amount of Floating RatePreferred Securities (the “Preferred Securities”) of Gramercy Capital Trust III

 

Ladies and Gentlemen:

 

Inconnection with our purchase of the Preferred Securities we confirm that:

 

1              We understand that the FloatingRate Preferred Securities (the “Preferred Securities”) of Gramercy CapitalTrust III (the “Trust”) of GKK Capital LP (the “Company”) executed inconnection therewith) and the Floating Rate Junior Subordinated Notes due 2036of the Company (the “Subordinated Notes”) (the entire amount of the Trust’soutstanding Preferred Securities and the Subordinated Notes together beingreferred to herein as the “Offered Securities”), have not been registered underthe Securities Act of 1933, as amended (the “Securities Act”), and may not beoffered or sold except as permitted in the following sentence. We agree on ourown behalf and on behalf of any investor account for which we are purchasingthe Offered Securities that, if we decide to offer, sell or otherwise transferany such Offered Securities, (i) such offer, sale or transfer will be madeonly (a) to the Trust, (b) to a person we reasonably believe is a “qualifiedpurchaser” (a “QP”) (as defined in Section 2(a)(51) of the InvestmentCompany Act of 1940, as amended). We understand that the certificates for anyOffered Security that we receive will bear a legend substantially to the effectof the foregoing.

 

2              We are a “qualified purchaser”within the meaning of section 2(a)(51) of the Investment Company Act of1940, as amended, and are purchasing for our own account or for the account ofsuch a “qualified purchaser,” and we have such knowledge and experience infinancial and business matters as to be capable of evaluating the merits andrisks of our investment in the Offered Securities, and we and any account forwhich we are acting are each able to bear the economic risks of our or itsinvestment.

 

E-1

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

 

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

 

5              We acknowledge that we are not afiduciary of (i) an employee benefit, individual retirement account orother plan or arrangement subject to Title I of the Employee Retirement IncomeSecurity Act of 1974, as amended (“ERISA”), or section 4975 of theInternal Revenue Code of 1986, as amended (the “Code”) (each a “Plan”); or (ii) anentity whose underlying assets include “plan assets” by reason of any Plan’sinvestment in the entity, and are not purchasing any of the Offered Securitieson behalf of or with “plan assets” by reason of any Plan’s investment in theentity.

 

6              We acknowledge that the Trust andthe Company and others will rely upon the truth and accuracy of the foregoingacknowledgments, representations, warranties and agreements and agree that ifany of the acknowledgments, representations, warranties and agreements deemedto have been made by our purchase of any of the Offered Securities are nolonger accurate, we shall promptly notify the Company.  If we are acquiring any Offered Securities asa fiduciary or agent for one or more investor accounts, we represent that wehave sole discretion with respect to each such investor account and that we havefull power to make the foregoing acknowledgments, representations and agreementon behalf of each such investor account.

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

 

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

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

 

F-2

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Exhibit F

 

**Officer’s Financial Certificate**

** **

Theundersigned, the [Chairman/Vice Chairman/Chief Executive Officer/President/VicePresident/Chief Financial Officer/Treasurer/Assistant Treasurer], herebycertifies pursuant to Section 8.16(b) of the Amended and RestatedTrust Agreement, dated as of January 27, 2006 (the “Trust Agreement”),among GKK Capital LP (the “Company”), JPMorgan Chase Bank, NationalAssociation, as property trustee, Chase Bank USA, National Association, asDelaware trustee, and the administrative trustees named therein, that, as of[date], [20   ], the Company had the following ratios andbalances:

 

As of [Quarterly/AnnualFinancial Date], 20   

 
| Senior secured  indebtedness for borrowed money (“Debt”) |   | $      |   |   |
|--------------------------------------------------------------------|--------|--------|--------|--------|
|                                                               |   |   |   |
| Senior unsecured  Debt                                             |   | $      |   |   |
|                                                               |   |   |   |
| Subordinated  Debt                                                 |   | $      |   |   |
|                                                               |   |   |   |
| Total Debt                                                         |   | $      |   |   |
|                                                               |   |   |   |
| Ratio of (x)  senior secured and unsecured Debt to (y) total Debt  |   |   | %      |

 

 

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

 

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

 

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

 

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

 

F-1

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

 

F-2

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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 Dateafter the expiration of the Fixed Rate Period****(each such day, a “*LIBORDetermination Date*”), LIBOR for any given security shall for thefollowing interest payment period equal the rate, as obtained by theCalculation Agent from Bloomberg Financial Markets Commodities News, forthree-month Eurodollar deposits that appears on Dow Jones Telerate Page 3750(as defined in the International Swaps and Derivatives Association, Inc.2000 Interest Rate and Currency Exchange Definitions), or such other page asmay replace such Page 3750, as of 11:00 a.m. (London time) on suchLIBOR Determination Date.

 

(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 Calculation Agentby 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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