Exhibit
10.9


Execution
Copy




AMENDED
AND RESTATED TRUST AGREEMENT





among


BRESLER & REINER,
INC.,

as Depositor


JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION

as Property Trustee


CHASE BANK USA, NATIONAL
ASSOCIATION,

as Delaware Trustee


and


THE ADMINISTRATIVE TRUSTEES
NAMED HEREIN

as Administrative Trustees






Dated as of May 31, 2006






Bresler & Reiner
Statutory Trust II




 


















 


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; Principal Place of
  Business

  	
  11

  
	
  SECTION 2.3.

  	
  Initial Contribution of Trust Property; Fees, Costs
  and Expenses

  	
  11

  
	
  SECTION 2.4.

  	
  Purposes of Trust

  	
  11

  
	
  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

  	
  17

  
	
  SECTION 4.3.

  	
  Subordination of Common Securities

  	
  20

  
	
  SECTION 4.4.

  	
  Payment Procedures

  	
  20

  
	
  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

  	
  21

  
	
  SECTION 4.8.

  	
  Payments under Indenture or Pursuant to Direct Actions

  	
  22

  
	
  SECTION 4.9.

  	
  Exchanges

  	
  22

  
	
  SECTION 4.10.

  	
  Calculation Agent

  	
  22

  
	
  SECTION 4.11.

  	
  Certain Accounting Matters

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  Securities

  	
  24

  
	
  SECTION 5.1.

  	
  Initial Ownership

  	
  24

  
	
  SECTION 5.2.

  	
  Authorized Trust Securities

  	
  24

  
	
  SECTION 5.3.

  	
  Issuance of the Common Securities; Subscription and
  Purchase of Notes

  	
  24

  
	
  SECTION 5.4.

  	
  The Securities Certificates

  	
  25

  
	
  SECTION 5.5.

  	
  Rights of Holders

  	
  26

  
	
  SECTION 5.6.

  	
  Book-Entry Preferred Securities

  	
  26

  




 ii
 






 



 


	
  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

  	
  30

  
	
  SECTION 5.12.

  	
  Restricted Legends

  	
  31

  
	
  SECTION 5.13.

  	
  Form of Certificate of Authentication

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  meetings; voting; acts of holders section

  	
  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 Properly
  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

  
	
  SECTION 8.4.

  	
  Appointment of Administrative Trustees

  	
  43

  
	
  SECTION 8.5.

  	
  Duties and Responsibilities of the Trustees

  	
  43

  
	
  SECTION 8.6.

  	
  Notices of Defaults

  	
  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

  	
  47

  
	
  SECTION 8.11.

  	
  Resignation and Removal; Appointment of Successor

  	
  48

  
	
  SECTION 8.12.

  	
  Acceptance of Appointment by Successor

  	
  50

  
	
  SECTION 8.13.

  	
  Merger, Conversion, Consolidation or Succession to
  Business

  	
  50

  




 iii
 






 



 


	
  SECTION 8.14.

  	
  Not Responsible for Recitals, Issuance of
  Securities, or Representations

  	
  50

  
	
  SECTION 8.15.

  	
  Property Trustee May File Proofs of Claim

  	
  51

  
	
  SECTION 8.16.

  	
  Reports to the Property Trustee

  	
  51

  
	
   

  	
   

  	
   

  
	
  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

  	
  54

  
	
   

  	
   

  	
   

  
	
  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

  
	
  SECTION 10.9.

  	
  Agreement Not to Petition

  	
  59

  
	
  SECTION 10.10.

  	
  Counterparts

  	
  59

  



 


	
  Exhibit A

  	
  Certificate of Trust of Bresler & Reiner
  Statutory Trust II

  
	
  Exhibit B

  	
  Form of Common Securities Certificate

  
	
  Exhibit C

  	
  Form of Preferred Securities Certificate

  
	
  Exhibit D

  	
  Reserved

  
	
  Exhibit E

  	
  Form of Transferor Certificate

  
	
  Exhibit F

  	
  Form of Officer’s Financial Certificate

  
	
  Schedule A

  	
  Determination of LIBOR

  



 



 iv














 


THIS AMENDED AND RESTATED
TRUST AGREEMENT, dated as of May 31, 2006, among (i) Bresler & Reiner,
Inc., a Delaware corporation (including any successors or permitted assigns,
the “Depositor”), (ii) JPMorgan Chase Bank,
National Association, as property trustee (in such capacity, the “Property
Trustee”), (iii) Chase Bank USA, National Association, a national banking
association, as Delaware trustee (in such capacity, the “Delaware
Trustee”), (iv) Sidney M. Bresler, an individual, and Darryl M.
Edelstein, an individual, each of whose address is c/o Bresler & Reiner,
Inc., 11200 Rockville Pike, Suite 502, Rockville, MD 20852 as administrative
trustees (in such capacities, each an “Administrative Trustee”
and, collectively, the “Administrative Trustees”
and, together with the Property Trustee and the Delaware Trustee, the “Trustees”) and (v) the several Holders, as hereinafter
defined.


WITNESSETH


WHEREAS, the Depositor, the Property Trustee and the
Delaware Trustee have heretofore created a Delaware statutory trust pursuant to
the Delaware Statutory Trust Act by entering into a Trust Agreement, dated as
of May 25, 2006 (the “Original Trust
Agreement”), and by executing and filing with the Secretary of State
of the State of Delaware the Certificate of Trust, substantially in the form
attached as Exhibit A; and


WHEREAS, the Depositor and the Trustees desire to
amend and restate the Original Trust Agreement in its entirety as set forth
herein to provide for, among other things, (i) the issuance of the Common
Securities by the Trust to the Depositor, (ii) the issuance and sale of
the Preferred Securities by the Trust pursuant to the Purchase Agreement and
(iii) the acquisition by the Trust from the Depositor of all of the right,
title and interest in and to the Notes;


Now, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each party, for the
benefit of the other parties and for the benefit of the Holders, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as
follows:


ARTICLE I.


DEFINED
TERMS


SECTION
1.1.                                                                       Definitions.


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


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


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


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



 1
 






 



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


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


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


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


“Act” has the
meaning specified in Section 6.7.


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


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


“Additional Taxes”
has the meaning specified in Section 1.1 of the Indenture. “Additional Tax Sums”
has the meaning specified in Section 10.5 of the Indenture.


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


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. For the purposes of this definition, “control” when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.


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


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


(a)      the entry of a decree or order by a court
having jurisdiction in the premises (i) judging such Person a bankrupt or
insolvent, (ii) approving as properly filed a petition seeking reorganization,
arrangement, adjudication or composition of or in respect of such Person under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law, (iii) appointing a custodian,



 2
 






 



receiver, liquidator,
assignee, trustee, sequestrator or other similar official of such Person or of
any substantial part of its property or (iv) ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of sixty (60) consecutive days; or


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


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


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


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


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


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


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


“Commission” means
the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act or, if at any time after the execution of this
Trust Agreement such Commission is not existing and performing the duties
assigned to it, then the body performing such duties at such time.


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


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



 3
 






 



“Common Securities Subscription
Agreement” means the agreement of even date herewith by and
between the Depositor and the Trust pertaining to the sale and purchase of the
Common Securities.


“Corporate Trust Office”
means the principal office of the Property Trustee at which any particular time
its corporate trust business shall be administered, which office at the date of
this Trust Agreement is located at 600 Travis, 50th Floor, Houston, Texas
77002, Attention: Worldwide Securities Services—Bresler & Reiner Statutory
Trust II. Initially, all notices and correspondence shall be addressed to
Mudassir Mohamed, telephone number (713) 216-2826.


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


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


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


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


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


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


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


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


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


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


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


“Event of Default”
means any one of the following events (whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of law
or



 4
 






 



pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):


(a)                                          the
occurrence of a Note Event of Default; or


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


(c)                                          default
by the Trust in the payment of any Redemption Price of any Trust Security when
it becomes due and payable; or


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


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


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


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


“Fixed Rate Period”
has the meaning specified in the Indenture.


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


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


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


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


“Indenture” means
the Junior Subordinated Indenture executed and delivered by the Depositor and
the Note Trustee contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the holders of the Notes.



 5
 






 



“Indenture Redemption Price”
means the Optional Note Redemption Price or the Special Note Redemption Price,
as applicable.


“Initial Purchaser”
shall mean the initial purchasers of the Preferred Securities. “Interest
Payment Date” has the meaning specified in Section 1.1 of the Indenture.


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


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


“Junior Subordinated Note Purchase
Agreement” means the agreement of even date herewith by and
between the Depositor and the Trust pertaining to the issuance and purchase of
the Notes.


“LIBOR” has the
meaning specified in Schedule A.


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


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


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


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


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


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


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


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


“Note Event of Default”
means any “Event of Default”
specified in Section 5.1 of the Indenture.



 6
 






 



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


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


“Notes” means the
Depositor’s Junior Subordinated Notes issued pursuant to the Indenture.


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


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


(b)                                 a
brief statement of the nature and scope of the examination or investigation
undertaken by such officer in rendering the Officers’ Certificate;


(c)                                  a
statement that such officer has made such examination or investigation as, in
such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and


(d)                                 a
statement as to whether, in the opinion of such officer, such condition or
covenant has been complied with.


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


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


“Optional Redemption Price”
means, with respect to any Trust Security, an amount equal to one hundred
percent (100%) of the Liquidation Amount of such Trust Security on the
Redemption Date, plus accumulated and unpaid Distributions to the Redemption
Date, plus the related amount of the premium, if any, and/or accrued interest,
including Additional Interest, if any, thereon paid by the Depositor upon the
concurrent redemption or payment at maturity of a Like Amount of Notes.



 7
 






 



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


“Original Issue Date”
means the date of original issuance of the Trust Securities.


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


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


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


(b)                                 Trust
Securities for which payment or redemption money in the necessary amount has
been theretofore deposited with the Property Trustee or any Paying Agent in
trust for the Holders of such Trust Securities; provided, that if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and


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


provided, that in
determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Preferred Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Preferred Securities owned by
the Depositor, any Trustee or any Affiliate of the Depositor or of any Trustee
shall be disregarded and deemed not to be Outstanding, except that (i) in
determining whether any Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Preferred Securities that such Trustee knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of the
Outstanding Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned that have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee’s
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor, any Trustee or any Affiliate of the Depositor or of any
Trustee.


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



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


“Paying Agent”
means any Person (other than the Company or any Affiliate of the Company)
authorized by the Administrative Trustee to pay Distributions or other amounts
in respect of any Trust Securities on behalf of the Trust.


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


“Person” means a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,
trust, unincorporated association or government, or any agency or political
subdivision thereof, or any other entity of whatever nature.


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


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


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


“Purchase Agreement”
means the Purchase Agreement or Purchase Agreements (whether one or more)
executed and delivered contemporaneously with this Agreement by the Trust, the
Depositor and the purchaser(s) named therein, as the same may be amended from
time to time.


“QIB” means a “Qualified
Institutional Buyer” as defined in Rule 144A under the Securities Act of 1933,
as amended.


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


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


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



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


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


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


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


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


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


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


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


“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 “Bresler & Reiner Statutory Trust II,”
which was created on May 25, 2006 under the Delaware Statutory Trust Act
pursuant to the Original Trust Agreement and the filing of the Certificate of
Trust, and continued pursuant to this Trust Agreement.


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



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


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


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


ARTICLE
II.


THE
TRUST


SECTION
2.1.                                                                       Name.


The trust continued hereby shall be known as “Bresler
& Reiner Statutory Trust II”, as such name may be modified from time to
time by the Administrative Trustees following written notice to the Holders of
Trust Securities and the other Trustees, in which name the Trustees may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.


SECTION
2.2.                                                                       Office
of the Delaware Trustee; Principal Place of Business.


The address of the Delaware Trustee in the State of
Delaware is Chase Bank USA, National Association, 500 Stanton Christiana Road,
Building 4 (3rd Floor), Newark, DE 19713, Attention: Worldwide Securities
Services, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders, the Depositor, the
Property Trustee and the Administrative Trustees. The principal executive
office of the Trust is 11200 Rockville Pike, Suite 502, Rockville, MD 20852,
Attention: Darryl M. Edelstein, as such address may be changed from time to
time by the Administrative Trustees following written notice to the Holders and
the other Trustees.


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


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


SECTION
2.4.                                                                       Purposes
of Trust.


(a)           The exclusive purposes and functions
of the Trust are to (i) issue and sell Trust Securities and use the proceeds
from such sale to acquire the Notes and (ii) engage in only those activities
necessary or incidental thereto. The Delaware Trustee, the Property Trustee and
the



 11
 






 



Administrative Trustees are trustees of the Trust, and
have all the rights, powers and duties to the extent set forth herein. The
Trustees hereby acknowledge that they are trustees of the Trust.


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


SECTION
2.5.                                                                       Authorization
to Enter into Certain Transactions.


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


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


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


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


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


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



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


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


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


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


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


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


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


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


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


(B)           the establishment of the Payment
Account;


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


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


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


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


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



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(H)          to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Trust,
provided that the Administrative Trustees shall have the power, duty and
authority to act on behalf of the Trust with respect to the preparation,
execution and filing of the certificate of cancellation of the Trust with the
Secretary of State of the State of Delaware; and


(I)            the taking of any action incidental
to the foregoing as the Property Trustee may from time to time determine is
necessary or advisable to give effect to the terms of this Trust Agreement and
protect and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder).


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


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


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


(c)           Notwithstanding anything herein to
the contrary, the Administrative Trustees are authorized and directed to
conduct the affairs of the Trust and authorized to operate the Trust so that
the Trust will not be taxable as a corporation or classified as other than a
grantor trust for United States federal income tax purposes, so that the Notes
will be treated as indebtedness of the Depositor for United States federal
income tax purposes and so that the Trust will not be deemed to be an “investment
company” required to be registered under the Investment Company Act. In respect
thereof, each Administrative Trustee is authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or this Trust
Agreement, that such Administrative Trustee determines in his or her discretion
to be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Outstanding Preferred Securities. In no event shall the Administrative Trustees
be liable to the Trust or the Holders for any failure to comply with this
Section 2.5 to the extent that such failure results solely from a change in law
or regulation or in the interpretation thereof.


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


SECTION
2.6.                                                                       Assets
of Trust.


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



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SECTION 2.7.                        Title to Trust Property.


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


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


ARTICLE
III.


PAYMENT
ACCOUNT; PAYING AGENTS


SECTION
3.1.                                                                       Payment
Account.


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


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


SECTION
3.2.                                                                       Appointment
of Paying Agents.


The Paying Agent shall initially be the Property
Trustee. The Paying Agent shall make Distributions to Holders from the Payment
Account and shall report the amounts of such Distributions to the Property
Trustee and the Administrative Trustees. Any Paying Agent shall have the
revocable power to withdraw funds from the Payment Account solely for the
purpose of making the Distributions referred to above. The Administrative
Trustees may revoke such power and remove the Paying Agent in their sole
discretion. Any Person acting as Paying Agent shall be permitted to resign as
Paying Agent upon thirty (30) days’ written notice to the Administrative
Trustees and the Property Trustee. If the Property Trustee shall no longer be
the Paying Agent or a successor Paying Agent shall resign or its authority to
act be revoked, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company) to act as Paying Agent. Such successor Paying
Agent appointed by the Administrative Trustees shall execute and deliver to the
Trustees an instrument in which such successor Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such Holders. The
Paying Agent shall return all unclaimed funds



 15
 






 



to the Property Trustee and upon removal of a Paying
Agent such Paying Agent shall also return all funds in its possession to the
Property Trustee. The provisions of Article VIII shall apply to the
Property Trustee also in its role as Paying Agent, for so long as the Property
Trustee shall act as Paying Agent and, to the extent applicable, to any other
Paying Agent appointed hereunder. Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise. For the avoidance of doubt, the Company shall not be permitted to
appoint itself or any Affiliate as a Paying Agent hereunder.


ARTICLE
IV.


DISTRIBUTIONS;
REDEMPTION


SECTION
4.1.                                                                       Distributions.


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


(i)            Distributions on the Trust
Securities shall be cumulative, and shall accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions
shall accumulate from May 31, 2006, and, except as provided in clause (ii)
below, shall be payable quarterly in arrears on January 30, April 30, July 30
and October 30 of each year, commencing on July 30, 2006. If any date on which
a Distribution is otherwise payable on the Trust Securities is not a Business
Day, then the payment of such Distribution shall be made on the next succeeding
Business Day (and no interest shall accrue in respect of the amounts whose
payment is so delayed for the period from and after each such date until the
next succeeding Business Day), except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date (each date on which Distributions are payable in accordance with
this Section 4.l(a)(i), a “Distribution
Date”);


(ii)           Distributions shall accumulate in
respect of the Trust Securities at a fixed rate equal to 9.02% per annum
through the interest payment date on July 30, 2011 (“Fixed Rate Period”) and thereafter at a variable rate equal
to LIBOR plus 3.50% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Notes. LIBOR
shall be determined by the Calculation Agent in accordance with Schedule A.
The amount of Distributions payable for any Distribution period shall be
computed shall be computed during the Fixed Rate Period on the basis of a
360-day year of twelve 30-day months, and thereafter on the basis of a 360-day
year and the actual number of days elapsed in the relevant interest period. The
amount of Distributions payable for any period shall include any Additional Interest
Amounts in respect of such period; and


(iii)          Distributions on the Trust Securities
shall be made by the Paying Agent from the Payment Account and shall be payable
on each Distribution Date only to the



 16
 






 



extent that the Trust has
funds then on hand and available in the Payment Account for the payment of such
Distributions.


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


(c)           As a condition to the payment of any
principal of or interest on the Trust Securities without the imposition of
withholding tax, the Administrative Trustees shall require the previous
delivery of properly completed and signed applicable U.S. federal income tax
certifications (generally, an Internal Revenue Service Form W-9 (or applicable successor
form) in the case of a person that is a “United States person” within the
meaning of Section 7701(a)(30) of the Code or an Internal Revenue Service Form
W-8 (or applicable successor form) in the case of a person that is not a “United
States person” within the meaning of Section 7701(a)(30) of the Code) and any
other certification acceptable to it to enable the Paying Agent to determine
its respective duties and liabilities with respect to any taxes or other
charges that it may be required to pay, deduct or withhold in respect of such
Trust Securities.


SECTION
4.2.                                                                       Redemption.


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


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


(i)            the Redemption Date;


(ii)           the Redemption Price or, if the
Redemption Price cannot be calculated prior to the time the notice is required
to be sent, the estimate of the Redemption Price provided pursuant to the
Indenture, as calculated by the Depositor, together with a



 17
 






 



statement that it is an
estimate and that the actual Redemption Price will be calculated by the
Calculation Agent on the fifth (5th) Business Day prior to the Redemption Date
(and if an estimate is provided, a further notice shall be sent of the actual
Redemption Price on the date that such Redemption Price is calculated);


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


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


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


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


(c)           The Trust Securities (or portion
thereof) redeemed on each Redemption Date shall be redeemed at the Redemption
Price with the proceeds from the contemporaneous redemption or payment at
maturity of Notes. Redemptions of the Trust Securities (or portion thereof)
shall be made and the Redemption Price shall be payable on each Redemption Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Redemption Price. Under the Indenture,
the Notes may be redeemed by the Depositor on any Interest Payment Date, at the
Depositor’s option, on or after July 30, 2011, in whole or in part, from time
to time at the Optional Note Redemption Price. The Notes may also be redeemed
by the Depositor, at its option pursuant to the terms of the Indenture, in
whole but not in part, upon the occurrence and during the continuation of an
Investment Company Event or a Tax Event, at the Special Note Redemption Price.


(d)           If the Property Trustee gives a
notice of redemption in respect of any Preferred Securities, then by 10:00
A.M., New York City time, on the Redemption Date, the Depositor shall deposit
sufficient funds with the Property Trustee to pay the Redemption Price. If such
deposit has been made by such time, then by 12:00 noon, New York City time, on
the Redemption Date, the Property Trustee will, with respect to Book-Entry
Preferred Securities, irrevocably deposit with the Depositary for such
Book-Entry Preferred Securities, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give such Depositary
irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities. With respect to Preferred Securities that
are not Book-Entry Preferred Securities, the Property Trustee will irrevocably
deposit with the Paying Agent, to the extent available therefor, funds
sufficient to pay the applicable Redemption Price and will give the Paying
Agent irrevocable instructions and authority to pay the Redemption Price to the
Holders of the Preferred Securities upon surrender of their Preferred
Securities Certificates. Notwithstanding the foregoing, Distributions payable
on or prior to the Redemption Date for any Trust Securities (or portion
thereof) called for redemption shall be payable to the Holders of such Trust
Securities as they appear on the Securities Register on the relevant record
dates for the



 18
 






 



related Distribution Dates. If notice of redemption
shall have been given and funds deposited as required, then upon the date of
such deposit, all rights of Holders holding Trust Securities (or portion
thereof) so called for redemption will cease, except the right of such Holders
to receive the Redemption Price and any Distribution payable in respect of the
Trust Securities on or prior to the Redemption Date, but without interest, and,
in the case of a partial redemption, the right of such Holders to receive a new
Trust Security or Securities of authorized denominations, in aggregate
Liquidation Amount equal to the unredeemed portion of such Trust Security or
Securities, and such Securities (or portion thereof) called for redemption will
cease to be Outstanding. In the event that any date on which any Redemption Price
is payable is not a Business Day, then payment of the Redemption Price payable
on such date will be made on the next succeeding Business Day (and no interest
shall accrue in respect of the amounts whose payment is so delayed for the
period from and after each such date until the next succeeding Business Day),
except that, if such Business Day falls in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case, with the same force and effect as if made on such date. In the event that
payment of the Redemption Price in respect of any Trust Securities (or portion
thereof) called for redemption is improperly withheld or refused and not paid
either by the Trust, Distributions on such Trust Securities (or portion
thereof) will continue to accumulate, as set forth in Section 4.1,
from the Redemption Date originally established by the Trust for such Trust
Securities (or portion thereof) to the date such Redemption Price is actually
paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the Redemption Price.


(e)           Subject to Section 4.3(a), if
less than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust Securities to
be redeemed shall be allocated pro rata
to the Common Securities and the Preferred Securities based upon the relative
aggregate Liquidation Amounts of the Common Securities and the Preferred
Securities. Upon such a partial redemption, the Preferred Securities to be
redeemed from each Holder of Preferred Securities shall be selected on a pro rata basis based upon the respective
Liquidation Amounts of the Preferred Securities then held by each Holder of the
Preferred Securities not more than sixty (60) days prior to the Redemption Date
by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption; provided,
that with respect to Holders that would be required to hold less than one hundred
(100) but more than zero (0) Trust Securities as a result of such redemption,
the Trust shall redeem Trust Securities of each such Holder so that after such
redemption such Holder shall hold either one hundred (100) Trust Securities or
such Holder no longer holds any Trust Securities, and shall use such method
(including, without limitation, by lot) as the Trust shall deem fair and
appropriate; and provided, further, that so long as the Preferred
Securities are Book-Entry Preferred Securities, such selection shall be made in
accordance with the Applicable Depositary Procedures for the Preferred
Securities by such Depositary. The Property Trustee shall promptly notify the
Securities Registrar in writing of the Preferred Securities (or portion
thereof) selected for redemption and, in the case of any Preferred Securities
selected for partial redemption, the Liquidation Amount thereof to be redeemed.
For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Preferred Securities
shall relate, in the case of any Preferred Securities redeemed or to be
redeemed only in part, to the portion of the aggregate Liquidation Amount of
Preferred Securities that has been or is to be redeemed.



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


SECTION
4.3.                                                                       Subordination
of Common Securities.


(a)           Payment of Distributions (including
any Additional Interest Amounts) on, the Redemption Price of and the
Liquidation Distribution in respect of, the Trust Securities, as applicable,
shall be made, pro rata among the
Common Securities and the Preferred Securities based on the Liquidation Amount
of the respective Trust Securities; provided,
that if on any Distribution Date, Redemption Date or Liquidation Date an Event
of Default shall have occurred and be continuing, no payment of any
Distribution (including any Additional Interest Amounts) on, Redemption Price
of or Liquidation Distribution in respect of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including any Additional Interest
Amounts) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities then called for redemption, or in the case of payment of the
Liquidation Distribution the full amount of such Liquidation Distribution on
all Outstanding Preferred Securities, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including any Additional
Interest Amounts) on, or the Redemption Price of or the Liquidation
Distribution in respect of, the Preferred Securities then due and payable.


(b)           In the case of the occurrence of any
Event of Default, the Holders of the Common Securities shall have no right to
act with respect to any such Event of Default under this Trust Agreement until
all such Events of Default with respect to the Preferred Securities have been
cured, waived or otherwise eliminated. Until all such Events of Default under
this Trust Agreement with respect to the Preferred Securities have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the Holders of the Preferred Securities and not on behalf of the
Holders of the Common Securities, and only the Holders of all the Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.


SECTION
4.4.                                                                       Payment
Procedures.


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



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Depositary in immediately available funds. Payments in
respect of the Common Securities shall be made in such manner as shall be
mutually agreed between the Property Trustee and the Holder of all the Common
Securities.


SECTION
4.5.                                                                       Withholding
Tax.


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


SECTION
4.6.                                                                       Tax
Returns and Other Reports.


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


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


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



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


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


SECTION
4.9.                                                                       Exchanges.


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


(b)           In the case of an exchange described in
Section 4.9(a), the Property Trustee on behalf of the Trust will,
on the date of such exchange, exchange Notes having a principal amount equal to
a proportional amount of the aggregate Liquidation Amount of the Outstanding
Common Securities, based on the ratio of the aggregate Liquidation Amount of
the Preferred Securities exchanged pursuant to Section 4.9(a)
divided by the aggregate Liquidation Amount of the Preferred Securities
Outstanding immediately prior to such exchange, for such proportional amount of
Common Securities held by the Depositor (which contemporaneously shall be
canceled and no longer be deemed to be Outstanding); provided, that the
Depositor delivers or causes to be delivered to the Property Trustee or its
designee the required amount of Common Securities to be exchanged by 10:00 A.M.
New York time, on the Distribution Date on which such exchange is to occur.


SECTION
4.10.                                                                 Calculation
Agent.


(a)           The Calculation Agent may be removed
by 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 any of the Notes, be the Calculation Agent
for purposes of determining LIBOR for each Distribution Date. If the Calculation
Agent is unable or unwilling to act as such or is removed by the Administrative
Trustees, the Administrative Trustees will promptly appoint as a replacement
Calculation Agent the London office of a leading bank which is engaged in
transactions in U.S. dollar deposits in Europe and



 22
 






 



which does not control or is not controlled by or
under common control with the Administrative Trustee or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been
duly appointed.


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


SECTION
4.11.                                                                 Certain
Accounting Matters.


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


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


(c)           If the Depositor intends to file its
annual and quarterly information with the Commission in electronic form
pursuant to Regulation S-T of the Commission using the Commission’s Electronic
Data Gathering, Analysis and Retrieval (“EDGAR”)
system, the Administrative Trustees shall notify the Property Trustee in the manner
prescribed herein of each



 23
 






 



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


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


ARTICLE
V.


SECURITIES


SECTION
5.1.                                                                       Initial
Ownership.


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


SECTION
5.2.                                                                       Authorized
Trust Securities.


The Trust shall be authorized to issue one series of
Preferred Securities having an aggregate Liquidation Amount of $30,000,000 and
one series of Common Securities having an aggregate Liquidation Amount of
$930,000.


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


On the Closing Date, an Administrative Trustee, on
behalf of the Trust, shall execute and deliver to the Depositor Common
Securities Certificates, registered in the name of the Depositor, evidencing an
aggregate of 930 Common Securities having an aggregate Liquidation Amount of
Nine Hundred Thirty Thousand Dollars ($930,000), against receipt by the Trust
of the aggregate purchase price of such Common Securities of Nine Hundred
Thirty Thousand Dollars ($930,000). Contemporaneously therewith and with the
sale by the Trust to the Holders of an aggregate of 30,000 Preferred Securities
having an aggregate Liquidation Amount of Thirty Million Dollars ($30,000,000)
an Administrative Trustee, on behalf of the Trust, shall purchase



 24
 






 



from the Depositor Notes, to be registered in the name
of the Property Trustee on behalf of the Trust and having an aggregate
principal amount equal to Thirty Million Nine Hundred Thirty Thousand Dollars
($30,930,000), and, in satisfaction of the purchase price for such Notes, the
Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of Thirty Million Nine Hundred Thirty Thousand Dollars ($30,930,000) (being
the aggregate amount paid by the Holders for the Preferred Securities, and the
amount paid by the Depositor for the Common Securities).


SECTION
5.4.                                                                       The
Securities Certificates.


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


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


(c)           The Preferred Securities issued to
QIBs/QPs shall be, except as provided in Section 5.6, Book-Entry
Preferred Securities issued in the form of one or more Global Preferred
Securities registered in the name of the Depositary, or its nominee and
deposited with the Depositary or a custodian for the Depositary for credit by
the Depositary to the respective accounts of the Depositary Participants
thereof (or such other accounts as they may direct). The Preferred Securities
issued to a Person other than a QIB/QP shall be issued in the form of
Definitive Preferred Securities Certificates.


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



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SECTION
5.5.                                                                       Rights
of Holders.


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


SECTION
5.6.                                                                       Book-Entry
Preferred Securities.


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


(b)           If any Global Preferred Security is
to be exchanged for Definitive Preferred Securities Certificates or canceled in
part, or if any Definitive Preferred Securities Certificate is to be exchanged
in whole or in part for any Global Preferred Security, then either (i) such
Global Preferred Security shall be so surrendered for exchange or cancellation
as provided in this Article V or (ii) the aggregate Liquidation
Amount represented by such Global Preferred Security shall be reduced, subject
to Section 5.4, or increased by an amount equal to the Liquidation
Amount represented by that portion of the Global Preferred Security to be so
exchanged or canceled, or equal to the Liquidation Amount represented by such
Definitive Preferred Securities Certificates to be so exchanged for any Global
Preferred Security, as the case may be, by means of an appropriate adjustment
made on the records of the Securities Registrar, whereupon the Property
Trustee, in accordance with the Applicable Depositary Procedures, shall
instruct the Depositary or its authorized representative to make a
corresponding



 26
 






 



adjustment to its records. Upon any such surrender to
the Administrative Trustees or the Securities Registrar of any Global Preferred
Security or Securities by the Depositary, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Preferred Securities Certificates in accordance with the
instructions of the Depositary. None of the Securities Registrar or the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be fully protected in relying on, such
instructions.


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


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


(e)           The rights of the Owners of the
Book-Entry Preferred Securities shall be exercised only through the Depositary
and shall be limited to those established by law, the Applicable Depositary
Procedures and agreements between such Owners and the Depositary and/or the
Depositary Participants; provided, that solely for the purpose of determining
whether the Holders of the requisite amount of Preferred Securities have voted
on any matter provided for in this Trust Agreement, to the extent that
Preferred Securities are represented by a Global Preferred Security, the
Trustees may conclusively rely on, and shall be fully protected in relying on,
any written instrument (including a proxy) delivered to the Property Trustee by
the Depositary setting forth the Owners’ votes or assigning the right to vote
on any matter to any other Persons either in whole or in part. To the extent
that Preferred Securities are represented by a Global Preferred Security, the
initial Depositary will make book-entry transfers among the Depositary
Participants and receive and transmit payments on the Preferred Securities that
are represented by a Global Preferred Security to such Depositary Participants,
and none of the Depositor or the Trustees shall have any responsibility or
obligation with respect thereto.


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



 27
 






 



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


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


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


(c)           The Securities Registrar shall not be
required, (i) to issue, register the transfer of or exchange any Preferred
Security during a period beginning at the opening of business fifteen (15) days
before the day of selection for redemption of such Preferred Securities
pursuant to Article IV and ending at the close of business on the
day of mailing of the notice of redemption or (ii) to register the transfer of
or exchange any Preferred Security so selected for redemption in whole or in
part, except, in the case of any such Preferred Security to be redeemed in
part, any portion thereof not to be redeemed.


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



 28
 






 



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


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


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


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


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


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


(b)           If the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Securities Certificate and there shall be delivered to the Securities Registrar
such security or indemnity as may be required by it to save each of the
Trustees harmless, then in the absence of notice that such Securities
Certificate shall have been acquired by a protected purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust, shall
execute and make available for delivery, and, with respect to Preferred
Securities, the Property Trustee shall authenticate, in exchange for or in lieu
of any such destroyed, lost or stolen Securities Certificate, a new Securities
Certificate of like class, tenor and denomination.


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



 29














 


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


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


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


SECTION
5.9.                                                                       Persons
Deemed Holders.


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


SECTION
5.10.                                                                 Cancellation.


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


SECTION
5.11.                                                                 Ownership
of Common Securities by Depositor.


(a)           On the Closing Date, the Depositor
shall acquire, and thereafter shall retain, beneficial and record ownership of
the Common Securities. Neither the Depositor nor any successor Holder of the
Common Securities may transfer less than all the Common Securities, and the
Depositor or any such successor Holder may transfer the Common Securities only
(i) in connection with a consolidation or merger of the Depositor into another
Person, or any conveyance, transfer or lease by the Depositor of its properties
and assets substantially as an entirety to any Person (in which event such
Common Securities will be transferred to such surviving entity, transferee or
lessee, as the case may be), pursuant to Section 8.1 of the



 30
 






 



Indenture or (ii) to the Depositor or an Affiliate of
the Depositor, in each such case in compliance with applicable law (including
the Securities Act, and applicable state securities and blue sky laws). To the
fullest extent permitted by law, any attempted transfer of the Common
Securities other than as set forth in the immediately preceding sentence shall
be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating substantially “THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW AND
SECTION 5.11 OF THE TRUST AGREEMENT.”


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


SECTION
5.12.                                                                 Restricted
Legends.


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


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


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


THE PREFERRED SECURITIES REPRESENTED BY THIS
CERTIFICATE WERE ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND SUCH
PREFERRED SECURITIES OR ANY INTEREST THEREIN, MAY NOT BE OFFERED,



 31
 






 



SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF ANY
PREFERRED SECURITIES IS HEREBY NOTIFIED THAT THE SELLER OF THE PREFERRED
SECURITIES MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF
THE SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.


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


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


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



 32
 






 



THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE.”


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


SECTION
5.13.                                                                 Form
of Certificate of Authentication.


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


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


	
  Dated:

  	
  JPMorgan Chase Bank, National Association,

  
	
   

  	
  not in its individual

  
	
   

  	
  capacity, but solely as Property Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized
  signatory

  	
   

  




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ARTICLE VI.


MEETINGS;
VOTING; ACTS OF HOLDERS SECTION


SECTION
6.1.                                                                       Notice
of Meetings.


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


SECTION
6.2.                                                                       Meetings
of Holders of the Preferred Securities.


(a)           No annual meeting of Holders is
required to be held. The Property Trustee, however, shall call a meeting of the
Holders of the Preferred Securities to vote on any matter upon the written
request of the Holders of at least twenty five percent (25%) in aggregate
Liquidation Amount of the Outstanding Preferred Securities and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of the Holders of the Preferred Securities to vote
on any matters as to which such Holders are entitled to vote.


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


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


SECTION
6.3.                                                                       Voting
Rights.


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


SECTION
6.4.                                                                       Proxies,
Etc.


At any meeting of Holders, any Holder entitled to vote
thereat may vote by proxy, provided,
that no proxy shall be voted at any meeting unless it shall have been placed on
file with the Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Holders of record shall
be entitled to vote. When Trust Securities are held jointly by several Persons,
any one of



 34
 






 



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


SECTION
6.5.                                                                       Holder
Action by Written Consent.


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


SECTION
6.6.                                                                       Record
Date for Voting and Other Purposes.


Except as provided in Section 6.10(a), for the
purposes of determining the Holders who are entitled to notice of and to vote
at any meeting or to act by written consent, or to participate in any
distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Administrative Trustees may from time to time fix a date, not more
than ninety (90) days prior to the date of any meeting of Holders or the
payment of a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Holders of record for such
purposes.


SECTION
6.7.                                                                       Acts
of Holders.


(a)           Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by
this Trust Agreement to be given, made or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by an agent thereof duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to an
Administrative Trustee. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and conclusive in favor of the Trustees, if made in the manner
provided in this Section 6.7.


(b)           The fact and date of the execution by
any Person of any such instrument or writing may be proved by the affidavit of
a witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution



 35
 






 



thereof. Where such execution is by a signer acting in
a capacity other than such signer’s individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer’s authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner that any Trustee receiving the same deems sufficient.


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


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


(e)           Without limiting the foregoing, a
Holder entitled hereunder to take any action hereunder with regard to any
particular Trust Security may do so with regard to all or any part of the
Liquidation Amount of such Trust Security or by one or more duly appointed
agents each of which may do so pursuant to such appointment with regard to all
or any part of such Liquidation Amount.


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


SECTION
6.8.                                                                       Inspection
of Records.


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


SECTION
6.9.                                                                       Limitations
on Voting Rights.


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


(b)           So long as any Notes are held by the
Property Trustee on behalf of the Trust, the Property Trustee shall not (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the Note Trustee, or exercise any trust or power conferred on the
Property Trustee with respect to the Notes, (ii) waive any past default that
may be waived under Section 5.13 of the Indenture or waive compliance with any
covenant or condition under Section 10.7 of the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of



 36
 






 



all the Notes shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture or the Notes,
where such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of at least a Majority in Liquidation Amount of
the Preferred Securities; provided,
that where a consent under the Indenture would require the consent of each
holder of Notes (or each Holder of Preferred Securities) affected thereby, no
such consent shall be given by the Property Trustee without the prior written
consent of each Holder of Preferred Securities. The Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of
the Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. In addition to obtaining the foregoing approvals of the
Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Property Trustee shall, at the expense of the Depositor, obtain an
Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes.


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


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


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


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


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



 37
 






 



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


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


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


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


Upon receipt by the Property Trustee of written notice
requesting such an acceleration, or rescission and annulment thereof, by
Holders of any part of the Preferred Securities, a record date shall be
established for determining Holders of Outstanding Preferred Securities
entitled to join in such notice, which record date shall be at the close of
business on the day the Property Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided,
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day that is ninety (90)
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such ninety (90)-day period, a new written notice of declaration
of acceleration, or rescission and annulment thereof, as the case may be, that
is identical to a written notice that has been canceled pursuant to the proviso
to the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 6.10(a).


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


(c)           Notwithstanding paragraphs (a) and
(b) of this Section 6.10, the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities may, on behalf of the Holders of
all the Preferred Securities, waive any Note Event of Default, except any Note
Event of Default arising from the failure to pay any principal of or any
premium, if any, or interest on (including any Additional Interest) the Notes
(unless such Note Event of Default has been cured and a sum sufficient to pay
all matured installments of interest and all principal and premium, if



 38
 






 



any, on all Notes due otherwise than by acceleration
has been deposited with the Note Trustee) or a Note Event of Default in respect
of a covenant or provision that under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding Note. Upon any
such waiver, such Note Event of Default shall cease to exist and any Note Event
of Default arising therefrom shall be deemed to have been cured for every purpose
of the Indenture; but no such waiver shall affect any subsequent Note Event of
Default or impair any right consequent thereon.


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


(e)           The Holders of a Majority in
Liquidation Amount of the Preferred Securities shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee in respect of this Trust Agreement or the
Notes or exercising any trust or power conferred upon the Property Trustee
under this Trust Agreement; provided,
that, subject to Sections 8.5 and 8.77, the Property Trustee
shall have the right to decline to follow any such direction if the Property
Trustee being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Property Trustee in good faith shall, by an
officer or officers of the Property Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Holders not party to such direction, and provided,
further, that nothing in this Trust Agreement shall impair the right of the
Property Trustee to take any action deemed proper by the Property Trustee and
which is not inconsistent with such direction.


ARTICLE
VII.


REPRESENTATIONS
AND WARRANTIES


SECTION
7.1.                                                                       Representations
and Warranties of the Properly Trustee and the Delaware Trustee.


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


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


(b)           the Property Trustee has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Agreement;


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



 39














 


(d)           the Delaware Trustee has full
corporate power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Agreement;


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


(f)            the execution, delivery and
performance of this Trust Agreement have been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and the Delaware
Trustee and do not require any approval of stockholders of the Property Trustee
and the Delaware Trustee and such execution, delivery and performance will not
(i) violate the Restated Organization Certificate or Articles of Association,
as applicable, or By-laws of the Property Trustee or the Delaware Trustee, (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the imposition of any lien on any
properties included in the Trust Property pursuant to the provisions of any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Property Trustee or the Delaware Trustee is a party or by which it
is bound, or (iii) violate any applicable law, governmental rule or regulation
of the United States or the State of Delaware, as the case may be, governing
the banking, trust or general powers of the Property Trustee or the Delaware
Trustee or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;


(g)           neither the authorization, execution
or delivery by the Property Trustee or the Delaware Trustee of this Trust
Agreement nor the consummation of any of the transactions by the Property
Trustee or the Delaware Trustee contemplated herein requires the consent or
approval of, the giving of notice to, the registration with or the taking of
any other action with respect to any governmental authority or agency under any
existing law of the United States or the State of Delaware governing the
banking, trust or general powers of the Property Trustee or the Delaware
Trustee, as the case may be; and


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


SECTION
7.2.                                                                       Representations
and Warranties of Depositor.


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



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


(b)           the Depositor has full corporate
power, authority and legal right to execute, deliver and perform its
obligations under this Trust Agreement and has taken all necessary action to
authorize the execution, delivery and performance by it of this Trust
Agreement;


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


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


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


(f)            neither the authorization, execution
or delivery by the Depositor of this Trust Agreement nor the consummation of
any of the transactions by the Depositor contemplated herein requires the
consent or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to any governmental authority or agency
under any existing law governing the Depositor or any material portion of its
property; and


(g)           there are no proceedings pending or,
to the best of the Depositor’s knowledge, threatened against or affecting the
Depositor or any material portion of its property in any court or before any
governmental authority, agency or arbitration board or tribunal that,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Depositor, as the
case may be, to enter into or perform its obligations under this Trust
Agreement.


ARTICLE
VIII.


THE
TRUSTEES


SECTION
8.1.                                                                       Number
of Trustees.


The number of Trustees shall be four (4); provided, that the Property Trustee and
the Delaware Trustee may be the same Person, in which case the number of
Trustees shall be three (3). The number of Trustees may be increased or
decreased by Act of the Holder of the Common



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Securities subject to Sections 8.2, 8.3,
and 8.4.  The death, resignation,
retirement, removal, bankruptcy, incompetence or incapacity to perform the
duties of a Trustee shall not operate to annul, dissolve or terminate the
Trust.


SECTION
8.2.                                                                       Property
Trustee Required.


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


SECTION
8.3.                                                                       Delaware
Trustee Required.


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


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



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SECTION
8.4.                                                                       Appointment
of Administrative Trustees.


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


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


SECTION
8.5.                                                                       Duties
and Responsibilities of the Trustees.


(a)           The rights, immunities, duties and
responsibilities of the Trustees shall be as provided by this Trust Agreement
and there shall be no other duties (including fiduciary duties) or obligations,
express or implied, at law or in equity, of the Trustees; provided, however,
that if an Event of Default known to the Property Trustee has occurred and is
continuing, the Property Trustee shall, prior to the receipt of directions, if
any, from the Holders of at least a Majority in Liquidation Amount of the Preferred
Securities, exercise such of the rights and powers vested in it by this Trust
Agreement, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person’s own affairs. Notwithstanding the foregoing, no provision of this
Trust Agreement shall require any of the Trustees to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it. Whether or not herein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting
the liability of or affording protection to the Trustees shall be subject to
the provisions of this Section 8.5. Nothing in this Trust Agreement
shall be construed to release any Administrative Trustee from liability for his
or her own negligent action, negligent failure to act; or his or her own
willful misconduct. To the extent that, at law or in equity, a Trustee has
duties and liabilities relating to the Trust or to the Holders, such Trustee
shall not be liable to the Trust or to any Holder for such Trustee’s good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities of
the Trustees otherwise existing at law or in equity, are agreed by the
Depositor and the Holders to replace such other duties and liabilities of the
Trustees.


(b)           All payments made by the Property
Trustee or a Paying Agent in respect of the Trust Securities shall be made only
from the revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in accordance
with the terms hereof. Each Holder, by its acceptance of a Trust Security,
agrees that it will look solely to the



 43
 






 



revenue and proceeds from the Trust Property to the
extent legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security. This Section 8.5(b) does not limit the liability of
the Trustees expressly set forth elsewhere in this Trust Agreement.


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


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


(ii)           the Property Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of at least a Majority in
Liquidation Amount of the Preferred Securities;


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


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


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


SECTION
8.6.                                                                       Notices
of Defaults.


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


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



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


SECTION
8.7.                                                                       Certain
Rights of Property Trustee


Subject to the provisions of Section 8.5:


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


(b)           if (i) in performing its duties under
this Trust Agreement the Property Trustee is required to decide between
alternative courses of action, (ii) in construing any of the provisions of this
Trust Agreement the Property Trustee finds a provision ambiguous or
inconsistent with any other provisions contained herein or (iii) the Property Trustee
is unsure of the application of any provision of this Trust Agreement, then,
except as to any matter as to which the Holders of the Preferred Securities are
entitled to vote under the terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Depositor requesting the Depositor’s written
instruction as to the course of action to be taken and the Property Trustee
shall take such action, or refrain from taking such action, as the Property
Trustee shall be instructed in writing to take, or to refrain from taking, by
the Depositor; provided, that if the Property Trustee does not receive such
instructions of the Depositor within ten (10) Business Days after it has
delivered such notice or such reasonably shorter period of time set forth in
such notice, the Property Trustee may, but shall be under no duty to, take such
action, or refrain from taking such action, as the Property Trustee shall deem
advisable and in the best interests of the Holders, in which event the Property
Trustee shall have no liability except for its own negligence, bad faith or
willful misconduct;


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


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


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


(f)            the Property Trustee may consult
with counsel (which counsel may be counsel to the Property Trustee, the
Depositor or any of its Affiliates, and may include any of its employees) and
the advice of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon and in accordance with such advice; the
Property Trustee shall have the right at



 45
 






 



any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;


(g)           the Property Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the Holders pursuant to
this Trust Agreement, unless such Holders shall have offered to the Property
Trustee reasonable security or indemnity against the costs, expenses (including
reasonable attorneys’ fees and expenses) and liabilities that might be incurred
by it in compliance with such request or direction, including reasonable
advances as may be requested by the Property Trustee; provided, however,
that nothing contained in this Section 8.7(g) shall be construed to
relieve the Property Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this Trust
Agreement; provided, further, that nothing contained in this Section 8.7(g)
shall prevent the Property Trustee from exercising its rights under Section 8.11
hereof;


(h)           the Property Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture, note or other evidence
of indebtedness or other paper or document, unless requested in writing to do
so by one or more Holders, but the Property Trustee may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Property Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Depositor,
personally or by agent or attorney;


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


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


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


(l)            without prejudice to any other
rights available to the Property Trustee under applicable law, when the
Property Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including legal fees and expenses of its
agents and counsel)



 46
 






 



and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally; and


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


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


SECTION
8.8.                                                                       Delegation
of Power.


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


SECTION
8.9.                                                                       May
Hold Securities.


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


SECTION
8.10.                                                                 Compensation;
Reimbursement; Indemnity.


The Depositor agrees:


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


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



 47














 


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


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


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


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


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


SECTION
8.11.                                                                 Resignation
and Removal; Appointment of Successor.


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


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


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



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(d)           If any Trustee shall resign, be
removed or become incapable of acting as Trustee, or if a vacancy shall occur in
the office of any Trustee for any reason, at a time when no Event of Default
shall have occurred and be continuing, the Holder of the Common Securities, by
Act of the Holder of the Common Securities, shall promptly appoint a successor
Trustee or Trustees, and such successor Trustee and the retiring Trustee shall
comply with the applicable requirements of Section 8.12. If the
Property Trustee or the Delaware Trustee shall resign, be removed or become
incapable of continuing to act as the Property Trustee or the Delaware Trustee,
as the case may be, at a time when an Event of Default shall have occurred and
be continuing, the Holders of the Preferred Securities, by Act of the Holders
of a Majority in Liquidation Amount of the Preferred Securities, shall promptly
appoint a successor Property Trustee or Delaware Trustee, and such successor
Property Trustee or Delaware Trustee and the retiring Property Trustee or
Delaware Trustee shall comply with the applicable requirements of Section
8.12. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when an Event of
Default shall have occurred and be continuing, the Holder of the Common
Securities by Act of the Holder of Common Securities shall promptly appoint a
successor Administrative Trustee and such successor Administrative Trustee and
the retiring Administrative Trustee shall comply with the applicable
requirements of Section 8.12. If no successor Trustee shall have been so
appointed by the Holder of the Common Securities or Holders of the Preferred
Securities, as the case may be, and accepted appointment in the manner required
by Section 8.12 within thirty (30) days after the giving of a notice of
resignation by a Trustee, the removal of a Trustee, or a Trustee becoming
incapable of acting as such Trustee, any Holder who has been a Holder of
Preferred Securities for at least six (6) months may, on behalf of himself and
all others similarly situated, and any resigning Trustee may, in each case, at
the expense of the Depositor, petition any court of competent jurisdiction for
the appointment of a successor Trustee.


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


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


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



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SECTION
8.12.                                                                 Acceptance
of Appointment by Successor.


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


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


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


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


Any Person into which the Property Trustee or the
Delaware Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Trustee shall be a party, or any Person succeeding
to all or substantially all the corporate trust business of such Trustee, shall
be the successor of such Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided, that such Person shall be
otherwise qualified and eligible under this Article VIII.


SECTION
8.14.                                                                 Not
Responsible for Recitals, Issuance of Securities, or Representations.


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



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made or undertaken by the Trust under this Trust Agreement
or any other document, agreement or certificate.


SECTION
8.15.                                                                 Property
Trustee May File Proofs of Claim.


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


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


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


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such proceeding is
hereby authorized by each Holder to make such payments to the Property Trustee
and, in the event the Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee first any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and counsel, and any other amounts
due the Property Trustee.


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


SECTION
8.16.                                                                 Reports
to the Property Trustee.


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



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(b)           The Depositor shall furnish (i) to
the Property Trustee; (ii) Taberna Capital Management, LLC (at 450 Park Avenue,
New York, New York 10022, Attention: Thomas Bogal or such other address as
designated by Taberna Capital Management, LLC); and (iii) any Owner of the
Preferred Securities reasonably identified to the Depositor and the Trust
(which identification may be made either by such Owner or by Taberna Capital
Management, LLC) a duly completed and executed certificate substantively and
substantially in the form attached hereto as Exhibit F, including
the financial statements referenced in such Exhibit, which certificate and
financial statements shall be so furnished by the Depositor not later than forty
five (45) days after the end of each of the first three fiscal quarters of each
fiscal year of the Depositor and not later than ninety (90) days after the end
of each fiscal year of the Depositor.


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


ARTICLE
IX.


TERMINATION,
LIQUIDATION AND MERGER


SECTION
9.1.                                                                       Dissolution
Upon Expiration Date.


Unless earlier dissolved, the Trust shall
automatically dissolve on July 30, 2041 (the “Expiration
Date”), and the Trust Property shall be liquidated in accordance
with Section 9.4.


SECTION
9.2.                                                                       Early
Termination.


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


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


(b)           the written direction to the Property
Trustee from the Holder of the Common Securities at any time to dissolve the
Trust and, after satisfaction of any liabilities of the Trust as required by
applicable law, to distribute the Notes to Holders in exchange for the
Preferred Securities (which direction is optional and wholly within the
discretion of the Holder of the Common Securities);


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


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



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SECTION
9.3.                                                                       Termination.


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


(b)           As soon as practicable thereafter,
and after satisfaction of liabilities to creditors of the Trust as required by
applicable law, including Section 3808 of the Delaware Statutory Trust Act, the
Delaware Trustee, when notified in writing of the completion of the winding up
of the Trust in accordance with the Delaware Statutory Trust Act, shall
terminate the Trust by filing, at the expense of the Depositor, a certificate
of cancellation with the Secretary of State of the State of Delaware.


SECTION
9.4.                                                                       Liquidation.


(a)           If an Early Termination Event
specified in Section 9.2(a),  (b) or (d) occurs or
upon the Expiration Date, the Trust shall be liquidated by the Property Trustee
as expeditiously as the Property Trustee shall determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Holder a Like Amount of Notes, subject to Section 9.4(d).
Notice of liquidation shall be given by the Property Trustee not less than
thirty (30) nor more than sixty (60) days prior to the Liquidation Date to each
Holder of Trust Securities at such Holder’s address appearing in the Securities
Register. All such notices of liquidation shall:


(i)            state the Liquidation Date;


(ii)           state that from and after the
Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and (subject to Section 9.4(d)) any Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Notes; and


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


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



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(c)           Except where Section 9.2(c)
or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates representing a
Like Amount of Notes will be issued to Holders of Securities Certificates, upon
surrender of such Certificates to the exchange agent for exchange, (iii) the
Depositor shall use its best efforts to have the Notes listed on the New York
Stock Exchange or on such other exchange, interdealer quotation system or
self-regulatory organization on which the Preferred Securities are then listed,
if any, (iv) Securities Certificates not so surrendered for exchange will be
deemed to represent a Like Amount of Notes bearing accrued and unpaid interest
in an amount equal to the accumulated and unpaid Distributions on such
Securities Certificates until such certificates are so surrendered (and until
such certificates are so surrendered, no payments of interest or principal will
be made to Holders of Securities Certificates with respect to such Notes) and
(v) all rights of Holders holding Trust Securities will cease, except the right
of such Holders to receive Notes upon surrender of Securities Certificates.


(d)           Notwithstanding the other provisions
of this Section 9.4, if distribution of the Notes in the manner
provided herein is determined by the Property Trustee not to be permitted or
practical, the Trust Property shall be liquidated, and the Trust shall be wound
up by the Property Trustee in such manner as the Property Trustee determines.
In such event, Holders will be entitled to receive out of the assets of the
Trust available for distribution to Holders, after satisfaction of liabilities
to creditors of the Trust as provided by applicable law, an amount equal to the
Liquidation Amount per Trust Security plus accumulated and unpaid Distributions
thereon to the date of payment (such amount being the “Liquidation Distribution”). If, upon any
such winding up the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation
Amounts). The Holder of the Common Securities will be entitled to receive
Liquidation Distributions upon any such winding up pro rata (based upon Liquidation Amounts) with Holders of
all Trust Securities, except that, if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities as provided in Section 4.3.


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


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


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



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have the same priority as the Preferred Securities
with respect to distributions and payments upon liquidation, redemption and
otherwise;


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


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


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


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


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


(g)           prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Depositor has
received an Opinion of Counsel from a nationally recognized, independent counsel
to the Depositor experienced in such matters to the effect that (i) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any
material respect; (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an “investment company” under
the Investment Company Act and (iii) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Trust (or the
successor entity) will continue to be classified as a grantor trust for U.S.
federal income tax purposes; and


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


Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of all of the Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to any other Person or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace, the Trust if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be taxable as a corporation or classified as other than a grantor trust for
United States federal income tax purposes or cause the Notes to be treated as
other than indebtedness of the Depositor for United States federal income tax
purposes.



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ARTICLE
X.



MISCELLANEOUS PROVISIONS


SECTION
10.1.                                                                 Limitation
of Rights of Holders.


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


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


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


SECTION
10.3.                                                                 Amendment.


(a)           This Trust Agreement may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Holder of all the Common Securities, without the consent of any Holder of the
Preferred Securities, (i) to cure any ambiguity, correct or supplement any
provision herein that may be defective or inconsistent with any other provision
herein, or to make or amend any other provisions with respect to matters or
questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement, (ii) to modify, eliminate or
add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will neither be taxable as a corporation nor
be classified as other than a grantor trust for United States federal income
tax purposes at all times that any Trust Securities are Outstanding or to
ensure that the Notes are treated as indebtedness of the Depositor for United
States federal income tax purposes, or to ensure that the Trust will not be
required to register as an “investment company” under the Investment Company
Act or (iii) to add to the covenants, restrictions or obligations of the
Depositor; provided, that in the
case of clauses (i), (ii) or (iii), such action shall not adversely affect in
any material respect the interests of any Holder.


(b)           Except as provided in Section
10.3(c), any provision of this Trust Agreement may be amended by the Property
Trustee, the Administrative Trustees and the Holder of all of the Common
Securities and with (i) the consent of Holders of at least a Majority in
Liquidation



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Amount of the Preferred Securities and (ii) receipt by
the Trustees of an Opinion of Counsel to the effect that such amendment or the
exercise of any power granted to the Trustees in accordance with such amendment
will not cause the Trust to be taxable as a corporation or classified as other
than a grantor trust for United States federal income tax purposes or affect
the treatment of the Notes as indebtedness of the Depositor for United States
federal income tax purposes or affect the Trust’s exemption from status (or
from any requirement to register) as an “investment company” under the
Investment Company Act. In addition to and subject to the foregoing, the
Distribution Dates, Redemption Date and Stated Maturity (as defined in the
Indenture) with respect to the Preferred Securities or a portion of the
Preferred Securities shall be conformed in connection with any modification of
the Interest Payment Date, Redemption Date or Stated Maturity of the Junior
Subordinated Notes made by the Company and the Trust at the direction of any
holder of the Preferred Securities or a portion of the Preferred Securities as
set forth in Section 6 of the Purchase Agreement.


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


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


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


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



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


SECTION
10.4.                                                                 Separability.


If any provision in this Trust Agreement or in the
Securities Certificates shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and there shall be deemed substituted
for the provision at issue a valid, legal and enforceable provision as similar
as possible to the provision at issue.


SECTION
10.5.                                                                 Governing
Law.


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


SECTION
10.6.                                                                 Successors.


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


SECTION
10.7.                                                                 Headings.


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


SECTION
10.8.                                                                 Reports,
Notices and Demands.


(a)           Any report, notice, demand or other
communication that by any provision of this Trust Agreement is required or
permitted to be given or served to or upon any Holder or the Depositor may be
given or served in writing delivered in person, or by reputable, overnight
courier, by telecopy or by deposit thereof, first-class postage prepaid, in the
United States mail, addressed, (a) in the case of a Holder of Preferred
Securities, to such Holder as such Holder’s name and address may appear on the
Securities Register; and (b) in the case of the Holder of all the Common
Securities or the Depositor, to Bresler & Reiner, Inc. 11200 Rockville
Pike, Suite 502, Rockville, MD 20852, Attention: Mr. Edelstein, or to such
other address as may be specified in a written notice by the Holder of all the
Common Securities or the Depositor, as the case may be, to the Property
Trustee. Such report, notice, demand or other communication to or upon a Holder
or the Depositor shall be deemed to have been given when received in person,
within one (1) Business Day following delivery by overnight courier, when
telecopied with



 58
 






 



receipt confirmed, or within three (3) Business Days
following delivery by mail, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.


(b)           Any notice, demand or other
communication that by any provision of this Trust Agreement is required or
permitted to be given or served to or upon the Property Trustee, the Delaware
Trustee, the Administrative Trustees or the Trust shall be given in writing by
deposit thereof, first-class postage prepaid, in the U.S. mail, personal
delivery or facsimile transmission, addressed to such Person as follows: (i)
with respect to the Property Trustee to JPMorgan Chase Bank, National
Association, 600 Travis, 50th Floor, Houston, Texas 77002, Attention: Worldwide
Securities Services—Bresler & Reiner Statutory Trust II, facsimile no.
(713) 216-2101, (ii) with respect to the Delaware Trustee, to Chase Bank USA,
National Association, 500 Stanton Christiana Road, Building 4 (3rd Floor),
Newark, Delaware 19713, Attention: Institutional Trust Services—Bresler &
Reiner Statutory Trust II, facsimile no. (302) 552-6280; (iii) with respect to
the Administrative Trustees, to them at the address above for notices to the
Depositor, marked “Attention: Administrative Trustees of Bresler & Reiner
Statutory Trust II,” and (iv) with respect to the Trust, to its principal
executive office specified in Section 2.2, with a copy to the
Property Trustee. Such notice, demand or other communication to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust, the Property Trustee or the Administrative Trustees.


SECTION
10.9.                                                                 Agreement
Not to Petition.


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


SECTION
10.10.                                                           Counterparts.


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


[REMAINDER OF THIS
PAGE INTENTIONALLY LEFT BLANK]



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


 


	
  

  	
   

  	
  BRESLER & REINER, INC.,

  
	
   

  	
   

  	
  as Depositor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
    /s/ SIDNEY M. BRESLER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  SIDNEY M.
  BRESLER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title:

  	
  CEO

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  JPMORGAN CHASE BANK, NATIONAL

  	
  CHASE BANK USA, NATIONAL ASSOCIATION,

  
	
  ASSOCIATION, not in its individual capacity but

  solely as Property Trustee

  	
  not in its individual capacity but solely as

  Delaware Trustee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ SHELLY A. STERLING

  	
   

  	
  By:

  	
  /s/ DIANE P. LEDGER

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Shelly A.
  Sterling

  	
   

  	
   

  	
  Name:

  	
   Diane P.
  Ledger

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   Vice
  President

  	
   

  	
   

  	
  Title:

  	
   Assistant
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ SIDNEY M. BRESLER

  	
   

  	
  /s/ DARRYL M. EDELSTEIN

  	
   

  
	
  Administrative
  Trustee

  	
  Administrative
  Trustee

  
	
   

  	
   

  
	
  Name:

  	
   Sidney M.
  Bresler

  	
   

  	
  Name:

  	
   Darryl M.
  Edelstein

  	
   

  
																	



 



 60














 


Exhibit A


CERTIFICATE OF TRUST


OF


Bresler & Reiner
Statutory Trust II


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


1.             Name.  The name of the statutory trust formed by
this Certificate of Trust is:  Bresler
& Reiner Statutory Trust II.


2.             Delaware Trustee.  The name and business address of the trustee
of the Trust with its principal place of business in the State of Delaware are:


Chase Bank USA, National
Association


c/o JPMorgan Chase Bank,
National Association


500 Stanton Christiana
Road, OPS4/3rd Floor


Newark, Delaware  19713


Attention:  Worldwide Securities
Services.


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


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


	
  

  	
  CHASE BANK USA, NATIONAL ASSOCIATION, not in

  its individual capacity, but solely as Delaware

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 



 A-1














 


Exhibit B


[FORM OF COMMON
SECURITIES CERTIFICATE]


THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE


SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS OR


ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE
OFFERED,


SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN


EXEMPTION FROM REGISTRATION. THIS CERTIFICATE IS NOT


TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW
AND


SECTION 5.11 OF THE TRUST
AGREEMENT


	
  Certificate Number

  	
  Number of Common Securities:         

  



 


C-    


Certificate Evidencing
Common Securities


of


BRESLER & REINER
STATUTORY TRUST II


Common Securities


(liquidation amount
$1,000 per Common Security)


Bresler &
Reiner Statutory Trust II, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby
certifies that Bresler & Reiner, Inc., a Delaware corporation (the “Holder”) is the registered owner of           
common securities of the Trust representing undivided common beneficial
interests in the assets of the Trust and designated the Bresler & Reiner
Statutory Trust II Common Securities (liquidation amount $1,000 per Common
Security) (the “Common Securities”).
Except in accordance with Section 5.11 of the Trust Agreement (as
defined below), the Common Securities are not transferable and, to the fullest
extent permitted by law, any attempted transfer hereof other than in accordance
therewith shall be void. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust, dated as of May 31, 2006 as
the same may be amended from time to time (the “Trust
Agreement”), among Bresler & Reiner, Inc., as Depositor,
JPMorgan Chase Bank, National Association, as Property Trustee, Chase Bank USA,
National Association, as Delaware Trustee, the Administrative Trustees named
therein and the Holders, from time to time, of Trust Securities. The Trust will
furnish a copy of the Trust Agreement to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.



 B-1
 






 



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


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


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


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


 


	
  

  	
  BRESLER & REINER STATUTORY TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Administrative Trustee

  
						



 



 B-2














 


Exhibit C


[FORM OF PREFERRED
SECURITIES CERTIFICATE]


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


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


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


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



 C-1
 






 



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


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



 C-2
 






 



 


	
  Certificate Number: P-   

  	
  $30,000,000
  Aggregate Liquidation

  Amount

  
	
   

  	
  Preferred
  Securities

  



 


CUSIP NO.






Certificate Evidencing
Preferred Securities


of


BRESLER & REINER
STATUTORY TRUST II


Preferred Securities


(liquidation amount
$1,000 per Preferred Security)


Bresler & Reiner Statutory Trust II, a statutory
trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that Cede &
Co. (the “Holder”) is the
registered owner of Thirty Thousand (30,000) Preferred Securities of the Trust
representing an undivided preferred beneficial interest in the assets of the
Trust and designated the Bresler & Reiner Statutory Trust II Preferred
Securities, (liquidation amount $1,000 per Preferred Security) (the “Preferred Securities”). Subject to the
terms of the Trust Agreement (as defined below), the Preferred Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.7 of the Trust
Agreement (as defined below). The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities are set
forth in, and this certificate and the Preferred Securities represented hereby
are issued and shall in all respects be subject to the terms and provisions of,
the Amended and Restated Trust Agreement of the Trust, dated as of May 31, 2006
as the same may be amended from time to time (the “Trust Agreement”), among Bresler & Reiner, Inc., as
Depositor, JPMorgan Chase Bank, National Association, as Property Trustee,
Chase Bank USA, National Association, as Delaware Trustee, the Administrative
Trustees named therein and the Holders, from time to time, of Trust Securities.
The Trust will furnish a copy of the Trust Agreement to the Holder without
charge upon written request to the Property Trustee at its Corporate Trust
Office.


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


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



 C-3
 






 



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


IN WITNESS WHEREOF, one of the Administrative Trustees
of the Trust has executed on behalf of the Trust this certificate this      
day of                
2006.


	
  

  	
  BRESLER & REINER STATUTORY TRUST II

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  	
   

  
	
   

  	
   

  	
  Administrative Trustee

  
						



 


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


	
  Dated:

  	
   

  	
  JPMORGAN CHASE BANK, NATIONAL

  ASSOCIATION, not in its individual capacity,

  but solely as Property Trustee 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Authorized
  signatory

  	
   

  



 



 C-4
 






 



 


[FORM OF REVERSE OF
SECURITY]


The Trust promises to pay Distributions from May 31,
2006, or from the most recent Distribution Date to which Distributions have
been paid or duly provided for, quarterly in arrears on January 30, April 30,
July 30 and October 30 of each year, commencing on July 30, 2006, at a fixed
rate equal to 9.02% per annum through the interest payment date on July 30,
2011 (“Fixed Rate Period”) and
thereafter at a variable rate equal to LIBOR plus 3.50% per annum of the
Liquidation Amount of the Preferred Securities represented by this Preferred
Securities Certificate, together with any Additional Interest Amounts, in
respect to such period.


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


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


During an Event of Default, the Depositor shall not
(i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Depositor’s
Equity Interests (as defined in the Indenture); (ii) vote in favor of or permit
or otherwise allow any of its Subsidiaries (as defined in the Indenture) to
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to or otherwise retire, any shares
of any such Subsidiary’s preferred stock or other Equity Interests entitling
the holders thereof to a stated rate of return (for the avoidance of doubt,
whether such preferred stock or other Equity Interests are perpetual or
otherwise); or (iii) make any payment of principal of or any interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Depositor that rank pari passu in all respects with or junior in interest to
the Notes (other than (a) repurchases, redemptions or other acquisitions of
Equity Interests of the Depositor in connection with (1) any employment
contract, benefit plan or other similar arrangement with or for the benefit of
any one or more employees, officers, directors or consultants, (2) a dividend
reinvestment or stockholder stock purchase plan and (3) the issuance of Equity
Interests of the Depositor (or securities convertible into or exercisable for
such Equity Interests) as consideration in an acquisition transaction entered
into prior to such Event of Default, (b) as a result of an exchange or
conversion of any class or series of the Depositor’s Equity Interests (or any
Equity Interests of a Subsidiary of the Depositor) for any class or series of
the Depositor’s Equity Interests or of any class or series of the Depositor’s
indebtedness for any class or series of the Depositor’s Equity Interests, (c)
the purchase of fractional interests in shares of the Depositor’s Equity
Interests pursuant to the conversion or exchange provisions of such Equity
Interests or the security being converted or exchanged, (d) any declaration of
a dividend in connection with any Rights Plan (as defined in the Indenture),
the issuance of rights, stock or other property under any Rights Plan, or the redemption
or repurchase of rights pursuant thereto or (e) any dividend in the form of
stock, warrants, options or other rights where the dividend stock or the stock
issuable upon exercise of such warrants, options or other rights is the



 C-5
 






 



same stock as that on which the dividend is being paid
or ranks pari passu with or junior to such stock).


On each Note Redemption Date, on the stated maturity
(or any date of principal repayment upon early maturity) of the Notes and on
each other date on (or in respect of) which any principal on the Notes is
repaid, the Trust will be required to redeem a Like Amount of Trust Securities
at the Redemption Price. Under the Indenture, the Notes may be redeemed by the
Depositor on any Interest Payment Date, at the Depositor’s option, on or after
July 30, 2011, in whole or in part from time to time at the Optional Note
Redemption Price of the principal amount thereof or the redeemed portion
thereof, as applicable, together, in the case of any such redemption, with
accrued interest, including any Additional Interest, to but excluding the date
fixed for redemption. The Notes may also be redeemed by the Depositor, at its
option, at any time, in whole but not in part, upon the occurrence of an
Investment Company Event or a Tax Event at the Special Note Redemption Price; provided, that such Investment Company
Event or a Tax Event is continuing on the Redemption Date.


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


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


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



 C-6
 






 



 


ASSIGNMENT


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


 


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


(Insert address and zip
code of assignee)


and irrevocably appoints


agent to transfer this Preferred Securities
Certificate on the books of the Trust. The agent may substitute another to act
for him or her.


	
  Date: 

  	
   

  	
   

  
	
   

  
	
   

  
	
  Signature: 

  	
   

  	
   

  
	
   

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

  	
   

  
					



 


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



 C-7














 


Exhibit D


Reserved



 D-1














 


Exhibit E


Form of Transferor
Certificate


                 ,
[   ]


JPMorgan Chase
Bank, National Association


600 Travis, 50th
Floor


Houston, Texas
77002


Attention: Worldwide Securities Services


Bresler &
Reiner, Inc.


Bresler &
Reiner Statutory Trust II


11200 Rockville
Pike, Suite 502


Rockville, MD 20852


Re:                       Purchase
of $                   
stated liquidation amount of Preferred 

Securities (the “Preferred Securities’) of Bresler & Reiner
Statutory Trust II


Ladies and Gentlemen:


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


1.             We understand that the Preferred
Securities (the “Preferred Securities”) of Bresler & Reiner Statutory Trust
II (the “Trust”) of Bresler & Reiner, Inc. (the “Company”) (executed in
connection therewith) and the Junior Subordinated Notes due 2036 of the Company
(the “Subordinated Notes”) (the entire amount of the Trust’s outstanding
Preferred Securities and the Subordinated Notes together being referred to
herein as the “Offered Securities”), have not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), and may not be
offered or sold except as permitted in the following sentence. We agree on our
own behalf and on behalf of any investor account for which we are purchasing
the Offered Securities that, if we decide to offer, sell or otherwise transfer
any such Offered Securities, (i) such offer, sale or transfer will be made only
(a) to the Trust, (b) to a person we reasonably believe is a “Qualified
Purchaser” (a “QP”) (as defined in Section 2(a)(51) of the Investment Company
Act of 1940, as amended) and in compliance with the Securities Act. We
understand that the certificates for any Offered Security that we receive will
bear a legend substantially to the effect of the foregoing.


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



 E-1
 






 



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


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


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


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


	
  

  	
  (Name of Purchaser)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  



 


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


Name: 


Address: 


Taxpayer ID Number: 


 



 E-2















Exhibit F
Officer’s


Financial Certificate


The undersigned, the [Chairman/Vice Chairman/Chief
Executive Officer/President/Vice President/Chief Financial
Officer/Treasurer/Assistant Treasurer], hereby certifies pursuant to Section
8.16(b) of the Amended and Restated Trust Agreement, dated as of May [   ],
2006 (the “Trust Agreement”), among Bresler & Reiner, Inc. (the “Company”),
JPMorgan Chase Bank, National Association, as property trustee, Chase Bank USA,
National Association, as Delaware trustee, and the administrative trustees
named therein, that, as of [date], [20   ], the Company had the
following ratios and balances:


As of [Quarterly/Annual Financial Date], 20    


 


 


	
  Senior secured indebtedness
  for borrowed money (“Debt”)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Senior unsecured Debt

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Subordinated Debt

  	
   

  	
  $

  
	
   

  	
   

  	
   

  
	
  Total Debt

  	
   

  	
  $

  
	
   

  	
   

  	
   

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

  	
   

  	
  %

  



 


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


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


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


There has been no monetary default with respect to any
indebtedness owed by the Company and/or its subsidiaries (other than those
defaults cured within 30 days of the occurrence of the same)[except as set
forth below:].



 F-1
 








Insert any exceptions by listing, in detail, the
nature of the condition or event causing such noncompliance, the period during
which such condition or event has existed and the action(s) the Company has
taken, is taking, or proposes to take with respect to each such condition or
event.


I, the undersigned, the Chairman/Vice Chairman/Chief
Executive Officer/President/Vice President/Chief Financial
Officer/Treasurer/Assistant Treasurer], hereby certify that I have reviewed the
terms of the Indenture and I have made, or have caused to be made under my
supervision, a detailed review of (i) the covenants of the Company set forth
therein, in particular, Section [   ] (the “Financial Covenants”)
and (ii) the transactions and conditions of the Company and its subsidiaries
during the accounting period ended as of [                  ]
(the “Accounting Period”), which Accounting Period is covered by the financial
statements attached hereto. The examinations described in the preceding
sentence did not disclose, and I have no knowledge of, the existence of arty
condition or event which constitutes a Default or an Event of Default (each as
defined in the Indenture) during or at the end of the Accounting Period or as
of the date of this certificate, except as set forth below:


Insert any exceptions by listing, in detail, the
nature of the condition or event causing such noncompliance, the period during
which such condition or event has existed and the action(s) the Company has
taken, is taking, or proposes to take with respect to each such condition or
event.


Page       attached
hereto sets forth the financial data and computations evidencing the Company’s
compliance with the Financial Covenants, all of which data and computations are
true, complete and correct.


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


	
  

  	
  Bresler & Reiner, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Bresler & Reiner, Inc.

  
	
   

  	
  11200 Rockville Pike, Suite 502

  
	
   

  	
  Rockville, MD 20852

  
	
   

  	
  (301) 945-4300

  
					



 



 F-2














 


DETERMINATION OF
LIBOR


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


(1)           On
the second LIBOR Business Day (as defined below) prior to a Distribution Date
after the expiration of the Fixed Rate Period (each such day, a “LIBOR Determination Date”), LIBOR for any
given security shall for the following interest payment period equal the rate (expressed
as a percentage per annum) for U.S. dollar deposits in Europe, for a three (3)
month period, that appears on Dow Jones Telerate (as defined in the
International Swaps and Derivatives Association, Inc. 2000 Interest Rate and
Currency Exchange Definitions) Page 3750, or such other page as may replace
such Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination
Date, as reported by Bloomberg Financial Market Commodities News or any
successor service. If such rate is superseded on Telerate Page 3750 by a
corrected rate before 12:00 noon (London time) on such LIBOR Determination
Date, the corrected rate as so substituted will be LIBOR for such LIBOR
Determination Date.


(2)           If
on any LIBOR Determination Date such rate does not appear on Dow Jones Telerate
Page 3750 or such other page as may replace such Page 3750, the Calculation
Agent shall determine the arithmetic mean of the offered quotations (expressed
as a percentage per annum) of the Reference Banks (as defined below) to leading
banks in the London interbank market for U.S. dollar deposits in Europe, for a
three (3) month period, for an amount determined by the Calculation Agent (but
not less than U.S. $1,000,000) by reference to requests for quotations as of
approximately 11:00 A.M. (London time) on the LIBOR Determination Date made by
the Calculation Agent to the Reference Banks. 
If on any LIBOR Determination Date at least two of the Reference Banks
provide such quotations, LIBOR shall equal such arithmetic mean of such
quotations.  If on any LIBOR
Determination Date only one or none of the Reference Banks provide such
quotations, LIBOR shall be deemed to be the arithmetic mean of the offered
quotations (expressed as a percentage per annum) that two (2) leading banks in
the City of New York selected by the Calculation Agent are quoting on the
relevant LIBOR Determination Date for U.S. dollar deposits in Europe, for a
three (3) month period, for an amount determined by the Calculation Agent (but
not less than U.S. $1,000,000); provided,
that if the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR shall be
LIBOR as determined on the previous LIBOR Determination Date.


(3)           As used herein: “Reference Banks”
means four major banks in the London interbank market selected by the
Calculation Agent; and “LIBOR Business Day” means a day (a) on which commercial
banks are open for business (including dealings in foreign exchange and foreign
currency deposits) in London and (b) is not a Saturday, Sunday or other day on
which commercial banking institutions in New York, New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be closed.


 



 F-1