ex10-1.htm


    
      
        
        

      

      
        
        

      

      
        
        

      

    
                                                                                

    


    Exhibit
      10.1


    AMENDED
      AND RESTATED DECLARATION

     

    OF
      TRUST

     

    BNC
      STATUTORY TRUST III

     

    Dated
      as
      of July 30, 2007

     

    


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

              

                  TABLE
            OF CONTENTS      
 

                                                                                    

        

      

    


    
      	 	 	  Page


    

     

    
      	
              ARTICLE
                I

            	
              INTERPRETATION
                AND DEFINITIONS

            	
               
                1

            


    

     

    
      	
               

            	
              Section
                1.1.

            	
              Definitions 

            	
               
                1

            


    

     

    
      	
              ARTICLE
                II 

            	 ORGANIZATION  	 	
               
                9

            


    

     

    
      	
               

            	
              Section
                2.1.

            	
              Name 

            	
               
                9

            


    

     

    
      	
               

            	
              Section
                2.2.

            	
              Office 

            	
               
                9

            


    

     

    
      	
               

            	
              Section
                2.3.

            	
              Purpose 

            	
               
                9

            


    

     

    
      	
               

            	
              Section
                2.4.

            	
              Authority 

            	
               
                9

            


    

     

    
      	
               

            	
              Section
                2.5.

            	
              Title
                to Property of the Trust 

            	
              10

            


    

     

    
      	
               

            	
              Section
                2.6.

            	
              Powers
                and Duties of the Trustees and the Administrators 

            	
              10

            


    

     

    
      	
               

            	
              Section
                2.7.

            	
              Prohibition
                of Actions by the Trust and the Trustees 

            	
              14

            


    

     

    
      	
               

            	
              Section
                2.8.

            	
              Powers
                and Duties of the Institutional Trustee 

            	
              15

            


    

     

    
      	
               

            	
              Section
                2.9.

            	
              Certain
                Duties and Responsibilities of the Trustees and the
                Administrators 

            	
              17

            


    

     

    
      	
                            
                

            	 Section
              2.10.	 Certain
              Rights of Institutional Trustee   	
              19

            


    

     

    
      	
            	 Section
              2.11.	 Delaware
              Trustee      	
              21

            


    

     

    
      	
               

            	 Section
              2.12.	 Execution
              of Documents	
              21

            


    

     

    
      	
               

            	 Section
              2.13.	 Not
              Responsible for Recitals or Issuance of Securities	
              21

            


    

     

    
      	
               

            	 Section
              2.14.	 Duration
              of Trust	
              22

            


    

     

    
      	
               

            	 Section
              2.15.	 Mergers	
              22

            


    

     

    
      	
              ARTICLE
                III

            	 SPONSOR	 	
              24

            


    

     

    
      	
               

            	
              Section
                3.1.

            	
              Sponsor’s
                Purchase of Common Securities 

            	
              24

            


    

     

    
      	
               

            	
              Section
                3.2.

            	
              Responsibilities
                of the Sponsor 

            	
              24

            


    

     

    
      	
              ARTICLE
                IV

            	 TRUSTEES
              AND ADMINISTRATORS	
              24

            


    

     

    
      	
               

            	
              Section
                4.1.

            	
              Number
                of Trustees 

            	
              24

            


    

     

    
      	
               

            	
              Section
                4.2.

            	
              Delaware
                Trustee 

            	
              25

            


    

     

    
      	
               

            	
              Section
                4.3.

            	
              Institutional
                Trustee; Eligibility 

            	
              25

            


    

     

    
      	
               

            	
              Section
                4.4.

            	
              Certain
                Qualifications of the Delaware Trustee Generally 

            	
              25

            


    

     

    
      	
               

            	
              Section
                4.5.

            	
              Administrators 

            	
              26

            


    

     

    
      	
               

            	
              Section
                4.6.

            	
              Initial
                Delaware Trustee 

            	
              26

            


    

     

    
      	
               

            	
              Section
                4.7.

            	
              Appointment,
                Removal and Resignation of the Trustees and the
                Administrators 

            	
              26

            


    

     

    
      
        -i-

      

      
        
        

        
          

        

      

      
        
        

      

    

     TABLE
      OF CONTENTS

    (continued)

                                                                                                                 

     

    
      	 	 	 	 Page


    

     

    
      	
               

            	
              Section
                4.8.

            	
              Vacancies
                Among Trustees 

            	
              28

            


    

     

    
      	
               

            	
              Section
                4.9.

            	
              Effect
                of Vacancies 

            	
              28

            


    

     

    
      	
               

            	 Section
              4.10. 	Meetings
              of the Trustees and the Administrators	
              28

            


    

     

    
      	
               

            	 Section
              4.11. 	Delegation
              of Power 	
              29

            


    

     

    
      	
               

            	 Section
              4.12.	 Merger,
              Conversion, Consolidation or Succession to Business 	
              29

            


    

     

    
      	
              ARTICLE
                V

            	DISTRIBUTIONS	 	
              29

            


    

     

    
      	
               

            	
              Section
                5.1.

            	
              Distributions 

            	
              29

            


    

     

    
      	
              ARTICLE
                VI 

            	ISSUANCE
              OF SECURITIES	
              29

            


    

     

    
      	
               

            	
              Section
                6.1.

            	
              General
                Provisions Regarding Securities 

            	
              29

            


    

     

    
      	
               

            	
              Section
                6.2.

            	
              Paying
                Agent, Transfer Agent, Calculation Agent and
                Registrar 

            	
              30

            


    

     

    
      	
               

            	
              Section
                6.3.

            	
              Form
                and Dating 

            	
              31

            


    

     

    
      	
               

            	 Section
              6.4.	
              Mutilated,
                Destroyed, Lost or Stolen Certificates

            	
              31

            


    

     

    
      	
               

            	
              Section
                6.5.

            	
              Temporary
                Certificates 

            	
              32

            


    

     

    
      	
               

            	
              Section
                6.6.

            	
              Cancellation 

            	
              32

            


    

     

    
      	
               

            	
              Section
                6.7.

            	
              Rights
                of Holders; Waivers of Past Defaults 

            	
              32

            


    

     

    
      	
              ARTICLE
                VII

            	DISSOLUTION
              AND TERMINATION OF TRUST	
              34

            


    

     

    
      	
               

            	
              Section
                7.1.

            	
              Dissolution
                and Termination of Trust 

            	
              34

            


    

     

    
      	
              ARTICLE
                VIII

            	 TRANSFER
              OF INTERESTS	
              35

            


    

     

    
      	
               

            	
              Section
                8.1.

            	
              General 

            	
              35

            


    

     

    
      	
               

            	
              Section
                8.2.

            	
              Transfer
                Procedures and Restrictions 

            	
              36

            


    

     

    
      	
               

            	
              Section
                8.3.

            	
              Deemed
                Security Holders 

            	
              39

            


    

     

    
      	
               

            	
              Section
                8.4.

            	
              Transfer
                of Initial Securities 

            	
              39

            


    

     

    
      	
              ARTICLE
                IX

            	 LIMITATION
              OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS	
              39

            


    

     

    
      	
               

            	
              Section
                9.1.

            	
              Liability 

            	
              39

            


    

     

    
      	
               

            	
              Section
                9.2.

            	
              Exculpation 

            	
              40

            


    

     

    
      	
               

            	
              Section
                9.3.

            	
              Fiduciary
                Duty 

            	
              40

            


    

     

    
      	
               

            	
              Section
                9.4.

            	
              Indemnification 

            	
              41

            


    

     

    
      	
               

            	
              Section
                9.5.

            	
              Outside
                Businesses 

            	
              44

            


    

     

    
      	
               

            	
              Section
                9.6.

            	
              Compensation;
                Fee 

            	
              44

            


    

     

    
      
        -ii-

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       TABLE
        OF CONTENTS

      (continued)

                                                                                                                   

    

    
      	 	 	 Page


    

     

    
      	
              ARTICLE
                X

            	ACCOUNTING	
              44

            


    

     

    
      	
               

            	Section
              10.1.	Fiscal
              Year	
              45

            


    

     

    
      	
               

            	Section
              10.2. 	Certain
              Accounting Matters	
              45

            


    

     

    
      	
               

            	Section
              10.3.	Banking	
              46

            


    

     

    
      	
               

            	Section
              10.4. 	Withholding	
              46

            


    

     

    
      	
              ARTICLE
                XI

            	AMENDMENTS
              AND MEETINGS 	
              46

            


    

     

    
      	
               

            	Section
              11.1.	Amendments
              	
              46

            


    

     

    
      	
               

            	
              Section
                11.2. 

            	Meetings
              of the Holders of the Securities; Action by Written Consent 	
              48

            


    

     

    
      	
              ARTICLE
                XII 

            	REPRESENTATIONS
              OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE 	
              50

            


    

     

    
      	
               

            	Section
              12.1. 	Representations
              and Warranties of Institutional Trustee 	
              50

            


    

     

    
      	
               

            	Section
              12.2. 	Representations
              and Warranties of Delaware Trustee	
              50

            


    

     

    
      	
              ARTICLE
                XIII 

            	MISCELLANEOUS	
              51

            


    

     

    
      	
               

            	Section
              13.1.	Notices
              	
              51

            


    

     

    
      	
               

            	Section
              13.2. 	Governing
              Law	
              52

            


    

     

    
      	
               

            	Section
              13.3.	Submission
              to Jurisdiction 	
              53

            


    

     

    
      	
               

            	Section
              13.4. 	Intention
              of the Parties 	
              53

            


    

     

    
      	
               

            	Section
              13.5. 	Headings
              	
              53

            


    

     

    
      	
               

            	Section
              13.6. 	Successors
              and Assigns 	 	
              53

            


    

     

    
      	
               

            	Section
              13.7. 	Partial
              Enforceability	 	
              53

            


    

     

    
      	
               

            	Section
              13.8. 	Counterparts	
              54

            


    

     

    ANNEXES
      AND EXHIBITS

     

    
      	
              ANNEX
                I

            	
              TERMS
                OF FLOATING RATE CAPITAL SECURITIES AND FLOATING RATE COMMON
                SECURITIES 

            	
              A-1

            


    

     

    
      	
              EXHIBIT
                A-1 

            	FORM
              OF CAPITAL SECURITY CERTIFICATE	
              A-1

            


    

     

    
      	
              EXHIBIT
                A-2 

            	FORM
              OF COMMON SECURITY CERTIFICATE	
              A-2

            


    

     

    
      	
              EXHIBIT
                B

            	FORM
              OF TRANSFEREE CERTIFICATE TO BE EXECUTED BY TRANSFEREES OTHER THAN
              QIBs
              	
              B-1

            


    

     

    
      	
              EXHIBIT
                C 

            	FORM
              OF TRANSFEROR CERTIFICATE TO BE EXECUTED FOR QIBs	
              C-1

            


    

     

    
      	EXHIBIT
              D	FORM
              OF ADMINISTRATOR’S CERTIFICATE OF THE TRUST	D-1


    

     

     

                                      


     


    
      
              
        

          
            	 	 -iii-                               	 


          
                      

        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    AMENDED
      AND RESTATED DECLARATION OF TRUST

     

    OF

     

    BNC
      STATUTORY TRUST III

     

    July
      30,
      2007

     

    AMENDED
      AND RESTATED DECLARATION OF TRUST (this “Declaration”), dated and effective as
      of July 30, 2007, by the Trustees (as defined herein), the Administrators (as
      defined herein), the Sponsor (as defined herein) and the holders from time
      to
      time of undivided beneficial interests in the assets of the Trust (as defined
      herein) to be issued pursuant to this Declaration.

     

    WHEREAS,
      certain of the Trustees and the Sponsor established BNC Statutory Trust III
      (the
“Trust”), a statutory trust under the Statutory Trust Act (as defined herein),
      pursuant to a Declaration of Trust, dated as of July 25, 2007 (the “Original
      Declaration”), and a Certificate of Trust filed with the Secretary of State of
      the State of Delaware on July 25, 2007, for the sole purpose of issuing and
      selling certain securities representing undivided beneficial interests in the
      assets of the Trust investing the proceeds thereof in certain debentures of
      the
      Debenture Issuer (as defined herein) and engaging in those activities necessary,
      advisable or incidental thereto;

     

    WHEREAS,
      as of the date hereof, no interests in the assets of the Trust have been issued;
      and

     

    WHEREAS,
      all of the Trustees, the Administrators and the Sponsor, by this Declaration,
      amend and restate each and every term and provision of the Original
      Declaration.

     

    NOW,
      THEREFORE, it being the intention of the parties hereto to continue the Trust
      as
      a statutory trust under the Statutory Trust Act and that this Declaration
      constitutes the governing instrument of such statutory trust and that all assets
      contributed to the Trust will be held in trust for the benefit of the holders,
      from time to time, of the securities representing undivided beneficial interests
      in the assets of the Trust issued hereunder, subject to the provisions of this
      Declaration, and, in consideration of the mutual covenants contained herein
      and
      other good and valuable consideration, the receipt of which is hereby
      acknowledged, the parties, intending to be legally bound hereby, amend and
      restate in its entirety the Original Declaration and agree as
      follows:

     

                       
      ARTICLE
      I                                

     

    


     

    INTERPRETATION
      AND DEFINITIONS

     

    Section
      1.1.  Definitions.  Unless
      the context otherwise requires:

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    (a)           capitalized
      terms used in this Declaration but not defined in the preamble above or
      elsewhere herein have the respective meanings assigned to them in this Section
      1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the
      Indenture;

     

    (b)           a
      term defined anywhere in this Declaration has the same meaning
      throughout;

     

    (c)           all
      references to “the Declaration” or “this Declaration” are to this Declaration as
      modified, supplemented or amended from time to time;

     

    (d)           all
      references in this Declaration to Articles and Sections and Annexes and Exhibits
      are to Articles and Sections of and Annexes and Exhibits to this Declaration
      unless otherwise specified;

     

    (e)           a
      term defined in the Trust Indenture Act (as defined herein) has the same meaning
      when used in this Declaration unless otherwise defined in this Declaration
      or
      unless the context otherwise requires; and

     

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

     

    “Additional
      Interest” has the meaning set forth in Section 3.06 of the
      Indenture.

     

    “Administrative
      Action” has the meaning set forth in paragraph 4(a) of Annex I.

     

    “Administrators”
      means each of Gregory K. Cleveland and Timothy J. Franz, solely in such Person’s
      capacity as Administrator of the Trust continued hereunder and not in such
      Person’s individual capacity, or such Administrator’s successor in interest in
      such capacity, or any successor appointed as herein provided.

     

    “Affiliate”
      has the same meaning as given to that term in Rule 405 of the Securities Act
      or
      any successor rule thereunder.

     

    “Authorized
      Officer” of a Person means any Person that is authorized to bind such
      Person.

     

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

     

    (a)           a
      court having jurisdiction in the premises enters a decree or order for relief
      in
      respect of such Person in an involuntary case under any applicable bankruptcy,
      insolvency or other similar law now or hereafter in effect, or appoints a
      receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
      official of such Person or for any substantial part of its property, or orders
      the winding-up or liquidation of its affairs, and such decree, appointment
      or
      order remains unstayed and in effect for a period of 90 consecutive days;
      or

     

    (b)           such
      Person commences a voluntary case under any applicable bankruptcy, insolvency
      or
      other similar law now or hereafter in effect, consents to the entry of an


    
      
        
        

      

      
        2

        
          

        

      

      
        
        
order
        for
        relief in an involuntary case under any such law, or consents to the appointment
        of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
        sequestrator or other similar official of such Person or of any substantial
        part
        of its property, or makes any general assignment for the benefit of creditors,
        or fails generally to pay its debts as they become due.

    

     

    “Business
      Day” means any day other than Saturday, Sunday or any other day on which banking
      institutions in Wilmington, Delaware, New York City or Bismarck, North Dakota
      are permitted or required by any applicable law or executive order to
      close.

     

    “Calculation
      Agent” has the meaning set forth in Section 1.01 of the Indenture.

     

    “Capital
      Securities” has the meaning set forth in Section 6.1(a).

     

    “Capital
      Securities Subscription Agreement” means the capital securities subscription
      agreement, of even date herewith, among the Trust, U.S. Capital Funding VI,
      Ltd.
      and the Sponsor.

     

    “Capital
      Security Certificate” means a definitive Certificate registered in the name of
      the Holder representing a Capital Security substantially in the form of Exhibit
      A-1.

     

    “Capital
      Treatment Event” has the meaning set forth in paragraph 4(a) of
      Annex I.

     

    “Certificate”
      means any certificate evidencing Securities.

     

    “Certificate
      of Trust” means the certificate of trust filed with the Secretary of State of
      the State of Delaware with respect to the Trust, as amended and restated from
      time to time.

     

    “Closing
      Date” has the meaning set forth in the Purchase Agreement.

     

    “Code”
      means the Internal Revenue Code of 1986, as amended from time to time, or any
      successor legislation.

     

    “Commission”
      means the Securities and Exchange Commission.

     

    “Common
      Securities” has the meaning set forth in Section 6.1(a).

     

    “Common
      Security Certificate” means a definitive Certificate registered in the name of
      the Holder representing a Common Security substantially in the form of Exhibit
      A-2.

     

    “Company
      Indemnified Person” means (a) any Administrator; (b) any Affiliate of any
      Administrator; (c) any officers, directors, shareholders, members, partners,
      employees, representatives or agents of any Administrator; or (d) any officer,
      employee or agent of the Trust or its Affiliates.

     

    “Corporate
      Trust Office” means the office of the Institutional Trustee at which the
      corporate trust business of the Institutional Trustee shall, at any particular
      time, be principally 

    
      
        
        

      

      
        3

        
          

        

      

      
        
        
administered,
        which office shall at all times be located in the United States and at the
        date
        of execution of this Declaration is located at Rodney Square North, 1100
        North
        Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate Capital
        Markets.

    

     

    “Coupon
      Rate” has the meaning set forth in paragraph 2(a) of Annex I.

     

    “Covered
      Person” means: (a) any Administrator, officer, director, shareholder,
      partner, member, representative, employee or agent of (i) the Trust or
      (ii) any of the Trust’s Affiliates; and (b) any Holder of
      Securities.

     

    “Debenture
      Issuer” means BNCCORP, Inc., a bank holding company incorporated in Delaware, in
      its capacity as issuer of the Debentures under the Indenture.

     

    “Debenture
      Trustee” means Wilmington Trust Company, a Delaware banking corporation, not in
      its individual capacity but solely as trustee under the Indenture until a
      successor is appointed thereunder, and thereafter means such successor
      trustee.

     

    “Debentures”
      means the Floating Rate Junior Subordinated Debt Securities due 2037 to be
      issued by the Debenture Issuer under the Indenture.

     

    “Default”
      means any event, act or condition that with notice or lapse of time, or both,
      would constitute an Event of Default.

     

    “Deferred
      Interest” means any interest on the Debentures that would have been overdue and
      unpaid for more than one Distribution Payment Date but for the imposition of
      an
      Extension Period, and the interest that shall accrue (to the extent that the
      payment of such interest is legally enforceable) on such interest at the Coupon
      Rate in effect for each such Extension Period, compounded quarterly from the
      date on which such Deferred Interest would otherwise have been due and payable
      until paid or made available for payment.

     

    “Definitive
      Capital Securities” means any Capital Securities in definitive form issued by
      the Trust.

     

    “Delaware
      Trustee” has the meaning set forth in Section 4.2.

     

    “Direct
      Action” has the meaning set forth in Section 2.8(e).

     

    “Distribution”
      means a distribution payable to Holders of Securities in accordance with Section
      5.1.

     

    “Distribution
      Payment Date” has the meaning set forth in paragraph 2(e) of Annex
      I.

     

    “Distribution
      Period” has the meaning set forth in paragraph 2(a) of Annex I.

     

    “Event
      of
      Default” means the occurrence of an Indenture Event of Default.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    “Exchange
      Act” means the Securities Exchange Act of 1934, as amended from time to time, or
      any successor legislation.

     

    “Extension
      Period” has the meaning set forth in paragraph 2(e) of Annex I.

     

    “Federal
      Reserve” has the meaning set forth in paragraph 3 of Annex I.

     

    “Fiduciary
      Indemnified Person” shall mean each of the Institutional Trustee (including in
      its individual capacity), the Delaware Trustee (including in its individual
      capacity), any Affiliate of the Institutional Trustee or the Delaware Trustee,
      and any officers, directors, shareholders, members, partners, employees,
      representatives, custodians, nominees or agents of the Institutional Trustee
      or
      the Delaware Trustee.

     

    “Fiscal
      Year” has the meaning set forth in Section 10.1.

     

    “Guarantee”
      means the Guarantee Agreement, dated as of the Closing Date,  of the
      Sponsor in respect of the Capital Securities.

     

    “Holder”
      means a Person in whose name a Certificate representing a Security is registered
      on the register maintained by or on behalf of the Registrar, such Person being
      a
      beneficial owner within the meaning of the Statutory Trust Act.

     

    “Indemnified
      Person” means a Company Indemnified Person or a Fiduciary Indemnified
      Person.

     

    “Indenture”
      means the Indenture, dated as of the Closing Date, between the Debenture Issuer
      and the Debenture Trustee, and any indenture supplemental thereto pursuant
      to
      which the Debentures are to be issued.

     

    “Indenture
      Event of Default” means an “Event of Default” as defined in the
      Indenture.

     

    “Initial
      Purchaser” mean each of Merrill Lynch International and U.S. Capital Funding VI,
      Ltd..

     

    “Institutional
      Trustee” means the Trustee meeting the eligibility requirements set forth in
      Section 4.3.

     

    “Interest”
      means any interest due on the Debentures, including any Deferred Interest and
      Defaulted Interest (as each such term is defined in the Indenture).

     

    “Investment
      Company” means an investment company as defined in the Investment Company
      Act.

     

    “Investment
      Company Act” means the Investment Company Act of 1940, as amended from time to
      time, or any successor legislation.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

    “Investment
      Company Event” has the meaning set forth in paragraph 4(a) of Annex
      I.

     

    “Legal
      Action” has the meaning set forth in Section 2.8(e).

     

    “LIBOR”
      means the London Interbank Offered Rate for three-month U.S. Dollar deposits
      in
      Europe as determined by the Calculation Agent according to paragraph 2(b) of
      Annex I.

     

    “LIBOR
      Banking Day” has the meaning set forth in paragraph 2(b)(1) of Annex
      I.

     

    “LIBOR
      Business Day” has the meaning set forth in paragraph 2(b)(1) of
      Annex I.

     

    “LIBOR
      Determination Date” has the meaning set forth in paragraph 2(b)(1) of Annex
      I.

     

    “Liquidation”
      has the meaning set forth in paragraph 3 of Annex I.

     

    “Liquidation
      Distribution” has the meaning set forth in paragraph 3 of Annex I.

     

    “Majority
      in liquidation amount of the Securities” means Holders of outstanding Securities
      voting together as a single class or, as the context may require, Holders of
      outstanding Capital Securities or Holders of outstanding Common Securities
      voting separately as a class, who are the record owners of more than 50% of
      the
      aggregate liquidation amount (including the stated amount that would be paid
      on
      redemption, liquidation or otherwise, plus accrued and unpaid Distributions
      to
      the date upon which the voting percentages are determined) of all outstanding
      Securities of the relevant class.

     

    “Officers’
      Certificate” means, with respect to any Person, a certificate signed by two
      Authorized Officers of such Person.  Any Officers’ Certificate
      delivered with respect to compliance with a condition or covenant provided
      for
      in this Declaration shall include:

     

    (a)           a
      statement that each officer signing the Officers’ Certificate 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 each officer in rendering the Officers’ Certificate;

     

    (c)           a
      statement that each 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 each such officer, such condition
      or
      covenant has been complied with.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    “Paying
      Agent” has the meaning set forth in Section 6.2.

     

    “Payment
      Amount” has the meaning set forth in Section 5.1.

     

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

     

    “Placement
      Agreement” means the Placement Agreement relating to the offering and sale of
      1,000 Capital Securities.

     

     “PORTAL”
      has the meaning set forth in Section 2.6(a)(i).

     

    “Property
      Account” has the meaning set forth in Section 2.8(c).

     

    “Pro
      Rata” has the meaning set forth in paragraph 8 of Annex I.

     

    “Purchase
      Agreement” means the Purchase Agreement relating to the offering and sale of
      14,000 Capital Securities.

     

     “QIB”
      means a “qualified institutional buyer” as defined under Rule 144A.

     

    “Quorum”
      means a majority of the Administrators or, if there are only two Administrators,
      both of them.

     

    “Redemption/Distribution
      Notice” has the meaning set forth in paragraph 4(e) of
      Annex I.

     

    “Redemption
      Price” has the meaning set forth in paragraph 4(a) of Annex I.

     

    “Registrar”
      has the meaning set forth in Section 6.2.

     

    “Relevant
      Trustee” has the meaning set forth in Section 4.7(a).

     

    “Responsible
      Officer” means, with respect to the Institutional Trustee, any officer within
      the Corporate Trust Office of the Institutional Trustee with direct
      responsibility for the administration of this Declaration, including any
      vice-president, any assistant vice-president, any secretary, any assistant
      secretary, the treasurer, any assistant treasurer, any trust officer or other
      officer of the Corporate Trust Office of the Institutional Trustee customarily
      performing functions similar to those performed by any of the above designated
      officers and also means, with respect to a particular corporate trust matter,
      any other officer to whom such matter is referred because of that officer’s
      knowledge of and familiarity with the particular subject.

     

    “Restricted
      Securities Legend” has the meaning set forth in
      Section 8.2(c).

     

    “Rule
      144A” means Rule 144A under the Securities Act.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

    “Rule
      3a-5” means Rule 3a-5 under the Investment Company Act.

     

    “Rule
      3a-7” means Rule 3a-7 under the Investment Company Act.

     

    “Securities”
      means the Common Securities and the Capital Securities.

     

    “Securities
      Act” means the Securities Act of 1933, as amended from time-to-time, or any
      successor legislation.

     

    “Sponsor”
      means BNCCORP, Inc., a bank holding company that is a U.S. Person incorporated
      in Delaware, or any successor entity in a merger, consolidation or amalgamation
      that is a U.S. Person, in its capacity as sponsor of the Trust.

     

    “Statutory
      Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code §
3801 et seq., as it may be amended from time to time, or any successor
      legislation.

     

    “Successor
      Delaware Trustee” has the meaning set forth in Section 4.7(e).

     

    “Successor
      Entity” has the meaning set forth in Section 2.15(b).

     

    “Successor
      Institutional Trustee” has the meaning set forth in Section 4.7(b).

     

    “Successor
      Securities” has the meaning set forth in Section 2.15(b).

     

    “Super
      Majority” has the meaning set forth in paragraph 5(b) of Annex I.

     

    “Tax
      Event” has the meaning set forth in paragraph 4(a) of Annex I.

     

    “10%
      in
      liquidation amount of the Securities” means Holders of outstanding Securities
      voting together as a single class or, as the context may require, Holders of
      outstanding Capital Securities or Holders of outstanding Common Securities
      voting separately as a class, who are the record owners of 10% or more of the
      aggregate liquidation amount (including the stated amount that would be paid
      on
      redemption, liquidation or otherwise, plus accrued and unpaid Distributions
      to
      the date upon which the voting percentages are determined) of all outstanding
      Securities of the relevant class.

     

    “Transfer
      Agent” has the meaning set forth in Section 6.2.

     

    “Treasury
      Regulations” means the income tax regulations, including temporary and proposed
      regulations, promulgated under the Code by the United States Treasury, as such
      regulations may be amended from time to time (including corresponding provisions
      of succeeding regulations).

     

    “Trust
      Indenture Act” means the Trust Indenture Act of 1939, as amended from
      time-to-time, or any successor legislation.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

    “Trust
      Property” means (a) the Debentures, (b) any cash on deposit in, or owing to, the
      Property 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 Institutional Trustee pursuant to the trusts of this
      Declaration.

     

    “Trustee”
      or “Trustees” means each Person who has signed this Declaration as a trustee, so
      long as such Person shall continue in office in accordance with the terms
      hereof, and all other Persons who may from time to time be duly appointed,
      qualified and serving as Trustees in accordance with the provisions hereof,
      and
      references herein to a Trustee or the Trustees shall refer to such Person or
      Persons solely in their capacity as trustees hereunder.

     

    “U.S.
      Person” means a United States Person as defined in Section 7701(a)(30) of the
      Code.

     

                                
      ARTICLE
      II                                

     

     

    ORGANIZATION

     

    Section
      2.1.  Name.  The
      Trust is named “BNC Statutory Trust III,” as such name may be modified from time
      to time by the Administrators following written notice to the Institutional
      Trustee and the Holders of the Securities.  The Trust’s activities may
      be conducted under the name of the Trust or any other name deemed advisable
      by
      the Administrators.

     

    Section
      2.2.  Office.  The
      address of the principal office of the Trust, which shall be in a State of
      the
      United States or the District of Columbia, is 322 East Main, Bismarck, North
      Dakota 58501.  On ten Business Days’ written notice to the
      Institutional Trustee and the Holders of the Securities, the Administrators
      may
      designate another principal office, which shall be in a State of the United
      States or the District of Columbia.  

     

    Section
      2.3.  Purpose.  The
      exclusive purposes and functions of the Trust are (a) to issue and sell the
      Securities representing undivided beneficial interests in the assets of the
      Trust, (b) to invest the gross proceeds from such sale in the Debentures and
      (c)
      except as otherwise limited herein, to engage in only those other activities
      incidental thereto that are deemed necessary or advisable by the Institutional
      Trustee, including, without limitation, those activities specified in this
      Declaration.  The Trust shall not borrow money, issue debt or reinvest
      proceeds derived from investments, pledge any of its assets, or otherwise
      undertake (or permit to be undertaken) any activity that would cause the Trust
      not to be classified for United States federal income tax purposes as a grantor
      trust.

     

    Section
      2.4.  Authority.  Except
      as specifically provided in this Declaration, the Institutional Trustee shall
      have exclusive and complete authority to carry out the purposes of the
      Trust.  An action taken by a Trustee on behalf of the Trust and in
      accordance with such Trustee’s powers shall constitute the act of and serve to
      bind the Trust.  In dealing with the Trustees acting on behalf of the
      Trust, no Person shall be required to inquire into the authority of the Trustees
      to bind the Trust.  Persons dealing with the Trust are entitled to
      rely conclusively on the power and 

    
      
        
        

      

      
        9

        
          

        

      

      
        
        
authority
        of the Trustees as set forth in this Declaration.  The Administrators
        shall have only those ministerial duties set forth herein with respect to
        accomplishing the purposes of the Trust and are not intended to be trustees
        or
        fiduciaries with respect to the Trust or the Holders.  The
        Institutional Trustee shall have the right, but shall not be obligated except
        as
        provided in Section 2.6, to perform those duties assigned to the
        Administrators.

    

     

    Section
      2.5.  Title
      to Property of the Trust.  Except as provided in Section 2.8 with
      respect to the Debentures and the Property Account or as otherwise provided
      in
      this Declaration, legal title to all assets of the Trust shall be vested in
      the
      Trust.  The Holders shall not have legal title to any part of the
      assets of the Trust, but shall have an undivided beneficial interest in the
      assets of the Trust.

     

    Section
      2.6.  Powers
      and Duties of the Trustees and the Administrators.  

     

    (a)           The
      Trustees and the Administrators shall conduct the affairs of the Trust in
      accordance with the terms of this Declaration.  Subject to the
      limitations set forth in paragraph (b) of this Section, and in accordance
      with the following provisions (i) and (ii), the Administrators and, at the
      direction of the Administrators, the Trustees, shall have the authority to
      enter
      into all transactions and agreements determined by the Administrators to be
      appropriate in exercising the authority, express or implied, otherwise granted
      to the Trustees or the Administrators, as the case may be, under this
      Declaration, and to perform all acts in furtherance thereof, including without
      limitation, the following:

     

    (i)           Each
      Administrator shall have the power, duty and authority, and is hereby
      authorized, to act on behalf of the Trust with respect to the following
      matters:

     

    (A)           the
      issuance and sale of the 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 agreements with the Paying
      Agent, the Purchase Agreement, the Placement Agreement, the Capital Securities
      Subscription Agreement, a Debenture subscription agreement between the Trust
      and
      the Sponsor and a Common Securities subscription agreement between the Trust
      and
      the Sponsor;

     

    (C)           ensuring
      compliance with the Securities Act and applicable state securities or blue
      sky
      laws;

     

    (D)           if
      and at such time determined solely by the Sponsor at the request of the Holders,
      assisting in the designation of the Capital Securities for trading in the
      Private Offering, Resales and Trading through the Automatic Linkages (“PORTAL”)
      system if available;

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

    (E)           the
      sending of notices (other than notices of default) and other information
      regarding the Securities and the Debentures to the Holders in accordance with
      this Declaration, including notice of any notice received from the Debenture
      Issuer of its election to defer payments of interest on the Debentures by
      extending the interest payment period under the Indenture;

     

    (F)           the
      appointment of a Paying Agent, Transfer Agent and Registrar in accordance with
      this Declaration;

     

    (G)           execution
      and delivery of the Securities in accordance with this Declaration;

     

    (H)           execution
      and delivery of closing certificates pursuant to the Purchase Agreement and
      the
      Placement Agreement and the application for a taxpayer identification
      number;

     

    (I)           unless
      otherwise determined by the Holders of a Majority in liquidation amount of
      the
      Securities or as otherwise required by the Statutory Trust Act, to execute
      on
      behalf of the Trust (either acting alone or together with any or all of the
      Administrators) any documents that the Administrators have the power to execute
      pursuant to this Declaration;

     

    (J)           the
      taking of any action incidental to the foregoing as the Sponsor or an
      Administrator may from time to time determine is necessary or advisable to
      give
      effect to the terms of this Declaration for the benefit of the Holders (without
      consideration of the effect of any such action on any particular
      Holder);

     

    (K)           to
      establish a record date with respect to all actions to be taken hereunder that
      require a record date be established, including Distributions, voting rights,
      redemptions and exchanges, and to issue relevant notices to the Holders of
      Capital Securities and Holders of Common Securities as to such actions and
      applicable record dates;

     

    (L)           to
      duly prepare and file on behalf of the Trust all applicable tax returns and
      tax
      information reports that are required to be filed with respect to the
      Trust;

     

    (M)           to
      negotiate the terms of, and the execution and delivery of, the Purchase
      Agreement, the Placement Agreement and the Capital Securities Subscription
      Agreement providing for the sale of the Capital Securities;

     

    (N)           to
      employ or otherwise engage employees, agents (who may be designated as officers
      with titles), managers, contractors, advisors, attorneys and consultants and
      pay
      reasonable compensation for such services;

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    (O)           to
      incur expenses that are necessary or incidental to carry out any of the purposes
      of the Trust;

     

    (P)           to
      give the certificate, substantially in the form of Exhibit D attached hereto,
      required by § 314(a)(4) of the Trust Indenture Act to the Institutional Trustee,
      which certificate may be executed by an Administrator;

     

    (Q)           to
      acquire the Debentures with the proceeds of the sale of the Securities;
      provided, however, that the Administrators shall cause legal title to the
      Debentures to be held of record in the name of the Institutional Trustee for
      the
      benefit of the Holders; and

     

    (R)           to
      take all action that may be necessary or appropriate for the preservation and
      the continuation of the Trust’s valid existence, rights, franchises and
      privileges as a statutory trust under the laws of each jurisdiction (other
      than
      the State of Delaware) in which such existence is necessary to protect the
      limited liability of the Holders of the Capital Securities or to enable the
      Trust to effect the purposes for which the Trust was created.

     

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

     

    (A)           the
      establishment of the Property Account;

     

    (B)           the
      receipt of the Debentures;

     

    (C)           the
      collection of interest, principal and any other payments made in respect of
      the
      Debentures in the Property Account;

     

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

     

    (E)           the
      exercise of all of the rights, powers and privileges of a holder of the
      Debentures;

     

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

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

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

     

    (H)           to
      the extent provided in this Declaration, the winding up of the affairs of and
      liquidation of the Trust and the preparation, execution and filing of the
      certificate of cancellation with the Secretary of State of the State of
      Delaware;

     

    (I)           after
      any Event of Default (of which the Institutional Trustee has knowledge (as
      provided in Section 2.10(m) hereof)) (provided, that such Event of
      Default is not by or with respect to the Institutional Trustee), the taking
      of
      any action incidental to the foregoing as the Institutional Trustee may from
      time to time determine is necessary or advisable to give effect to the terms
      of
      this Declaration 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);

     

    (J)           to
      take all action that may be necessary or appropriate for the preservation and
      the continuation of the Trust’s valid existence, rights, franchises and
      privileges as a statutory trust under the laws of the State of Delaware to
      protect the limited liability of the Holders of the Capital Securities or to
      enable the Trust to effect the purposes for which the Trust was created;
      and

     

    (K)           to
      undertake any actions set forth in § 317(a) of the Trust Indenture
      Act.

     

    (iii)           The
      Institutional Trustee shall have the power and authority, and is hereby
      authorized, to act on behalf of the Trust with respect to any of the duties,
      liabilities, powers or the authority of the Administrators set forth in Section
      2.6(a)(i)(E) and (F) herein but shall not have a duty to do any such act unless
      specifically requested to do so in writing by the Sponsor, and shall then be
      fully protected in acting pursuant to such written request; and in the event
      of
      a conflict between the action of the Administrators and the action of the
      Institutional Trustee, the action of the Institutional Trustee shall
      prevail.

     

    (b)           So
      long as this Declaration remains in effect, the Trust (or the Trustees or
      Administrators acting on behalf of the Trust) shall not undertake any business,
      activities or transaction except as expressly provided herein or contemplated
      hereby.  In particular, neither the Trustees nor the Administrators
      may cause the Trust to (i) acquire any investments or engage in any
      activities not authorized by this Declaration, (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) take any action that would cause (or in the case of
      the Institutional Trustee, to the actual knowledge of a Responsible Officer
      would cause) the Trust to fail or cease to qualify as a “grantor trust” for
      United States federal income tax purposes,
      (iv) incur any indebtedness for borrowed money or issue any other debt or
      (v) take or consent to any action that would result in the placement of a
      lien on any of the Trust Property.  The Institutional Trustee shall,
      at the sole cost and expense of the Trust subject to reimbursement under Section
      9.6(a), defend all claims and demands of all Persons at any time claiming any
      lien on any of the Trust Property adverse to the interest of the Trust or the
      Holders in their capacity as Holders.

     

    (c)           In
      connection with the issuance and sale of the Capital Securities, the Sponsor
      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
      Sponsor in furtherance of the following prior to the date of this Declaration
      are hereby ratified and confirmed in all respects):

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

    (i)           the
      taking of any action necessary to obtain an exemption from the Securities
      Act;

     

    (ii)           the
      determination of the States in which to take appropriate action to qualify
      or
      register for sale all or part of the Capital Securities and the determination
      of
      any and all such acts, other than actions which must be taken by or on behalf
      of
      the Trust, and the advisement of and direction to the Trustees and the
      Administrators of actions they must take on behalf of the Trust, and the
      preparation for execution and filing of any documents to be executed and filed
      by the Trust or on behalf of the Trust, as the Sponsor deems necessary or
      advisable in order to comply with the applicable laws of any such States in
      connection with the sale of the Capital Securities;

     

    (iii)           the
      taking of any other actions necessary or desirable to carry out any of the
      foregoing activities; and

     

    (iv)           the
      negotiation of the terms of, and the execution and delivery of, the Placement
      Agreement and Purchase Agreement providing for the sale and placement of the
      Capital Securities.

     

    (d)           Notwithstanding
      anything herein to the contrary, the Administrators, the Institutional Trustee
      and the Holders of a Majority in liquidation amount of the Common Securities
      are
      authorized and directed to conduct the affairs of the Trust and to operate
      the
      Trust so that (i) the Trust will not be deemed to be an “investment
      company” required to be registered under the Investment Company Act (in the case
      of the Institutional Trustee, to the actual knowledge of a Responsible Officer);
      (ii) the Trust will not fail to be classified as a grantor trust for United
      States federal income tax purposes (in the case of the Institutional Trustee,
      to
      the actual knowledge of a Responsible Officer); and (iii) the Trust will
      not take any action inconsistent with the treatment of the Debentures as
      indebtedness of the Debenture Issuer for United States federal income tax
      purposes (in the case of the Institutional Trustee, to the actual knowledge
      of a
      Responsible Officer).  In this connection, the Institutional Trustee,
      the Administrators and the Holders of a Majority in liquidation amount of the
      Common Securities are authorized to take any action, not inconsistent with
      applicable laws or this Declaration, as amended
      from time to time, that each of the Institutional Trustee, the Administrators
      and such Holders determine in their discretion to be necessary or desirable
      for
      such purposes, even if such action adversely affects the interests of the
      Holders of the Capital Securities.

     

    (e)           All
      expenses incurred by the Administrators or the Trustees pursuant to this Section
      2.6 shall be reimbursed by the Sponsor, and the Trustees shall have no
      obligations with respect to such expenses.

     

    (f)           The
      assets of the Trust shall consist of the Trust Property.

     

    (g)           Legal
      title to all Trust Property shall be vested at all times in the Institutional
      Trustee (in its capacity as such) and shall be held and administered by the
      Institutional Trustee for the benefit of the Trust in accordance with this
      Declaration.

     

    (h)           If
      the Institutional Trustee or any Holder has instituted any proceeding to enforce
      any right or remedy under this Declaration and such proceeding has been
      discontinued or abandoned for any reason, or has been determined adversely
      to
      the Institutional Trustee or to such Holder, then and in every such case the
      Sponsor, the Institutional Trustee and the Holders shall, subject to any
      determination in such proceeding, be restored severally and respectively to
      their former positions hereunder, and thereafter all rights and remedies of
      the
      Institutional Trustee and the Holders shall continue as though no such
      proceeding had been instituted.

     

    Section
      2.7.  Prohibition
      of Actions by the Trust and the Trustees. 

     

    The
      Trust
      shall not, and the Institutional Trustee and the Administrators shall not,
      and
      the Administrators shall cause the Trust not to, engage in any activity other
      than as required or authorized by this Declaration. In particular, the Trust
      shall not, and the Institutional Trustee and the Administrators shall not cause
      the Trust to:

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

    (a)           invest
      any proceeds received by the Trust from holding the Debentures, but shall
      distribute all such proceeds to Holders of the Securities pursuant to the terms
      of this Declaration and of the Securities;

     

    (b)           acquire
      any assets other than as expressly provided herein;

     

    (c)           possess
      Trust Property for other than a Trust purpose;

     

    (d)           make
      any loans or incur any indebtedness other than loans represented by the
      Debentures;

     

    (e)           possess
      any power or otherwise act in such a way as to vary the Trust Property or the
      terms of the Securities except as expressly provided herein;

     

    (f)           issue
      any securities or other evidences of beneficial ownership of, or beneficial
      interest in, the Trust other than the Securities; or

     

    (g)           other
      than as provided in this Declaration (including Annex I), (i) direct the time,
      method and place of exercising any trust or power conferred upon the Debenture
      Trustee with respect to the Debentures, (ii) waive any past default that is
      waivable under the Indenture, (iii) exercise any right to rescind or annul
      any
      declaration that the principal of all the Debentures shall be due and payable,
      or (iv) consent to any amendment, modification or termination of the Indenture
      or the Debentures where such consent shall be required unless the Trust shall
      have received a written opinion of counsel experienced in such matters to the
      effect that such amendment, modification or termination will not cause the
      Trust
      to cease to be classified as a grantor trust for United States federal income
      tax purposes.

     

    Section
      2.8.  Powers
      and Duties of the Institutional Trustee.

     

    (a)           The
      legal title to the Debentures shall be owned by and held of record in the name
      of the Institutional Trustee in trust for the benefit of the
      Trust.  The right, title and interest of the Institutional Trustee to
      the Debentures shall vest automatically in each Person who may hereafter be
      appointed as Institutional Trustee in accordance with Section
      4.7.  Such vesting and cessation of title shall be effective whether
      or not conveyancing documents with regard to the Debentures have been executed
      and delivered.

     

    (b)           The
      Institutional Trustee shall not transfer its right, title and interest in the
      Debentures to the Administrators or to the Delaware Trustee.

     

    (c)           The
      Institutional Trustee shall:

     

    (i)           establish
      and maintain a segregated non-interest bearing trust account (the “Property
      Account”) in the United States (as defined in Treasury Regulations section
      301.7701-7), in the name of and under the exclusive control of the Institutional
      Trustee, and maintained in the Institutional Trustee’s trust department, on
      behalf of the Holders of the Securities and, upon the receipt of payments of
      funds made in respect of the Debentures held by the Institutional Trustee,
      deposit such funds into the Property Account and make payments to the Holders
      of
      the Capital Securities and Holders of the Common Securities from the Property
      Account in accordance with Section 5.1.  Funds in the Property Account
      shall be held uninvested until disbursed in accordance with this
      Declaration;

     

    (ii)           engage
      in such ministerial activities as shall be necessary or appropriate to effect
      the redemption of the Capital Securities and the Common Securities to the extent
      the Debentures are redeemed or mature; and

     

    (iii)           upon
      written notice of distribution issued by the Administrators in accordance with
      the terms of the Securities, engage in such ministerial activities as shall
      be
      necessary or appropriate to effect the distribution of the Debentures to Holders
      of Securities upon the occurrence of certain circumstances pursuant to the
      terms
      of the Securities.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

    (d)           The
      Institutional Trustee shall take all actions and perform such duties as may
      be
      specifically required of the Institutional Trustee pursuant to the terms of
      the
      Securities.

     

    (e)           The
      Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
      resort to legal action with respect to, or otherwise adjust claims or demands
      of
      or against, the Trust (a “Legal Action”) which arise out of or in connection
      with an Event of Default of which a Responsible Officer of the Institutional
      Trustee has actual knowledge or the Institutional Trustee’s duties and
      obligations under this Declaration or the Trust Indenture Act; provided,
however, that if an Event of Default has occurred and is continuing
      and
      such event is attributable to the failure of the Debenture Issuer to pay
      interest or premium, if any, or principal on the Debentures on the date such
      interest or premium, if any, or principal is otherwise payable (or in the case
      of redemption, on the redemption date), then a Holder of the Capital Securities
      may directly institute a proceeding for enforcement of payment to such Holder
      of
      the principal of or premium, if any, or interest on the Debentures having a
      principal amount equal to the aggregate liquidation amount of the Capital
      Securities of such Holder (a “Direct Action”) on or after the respective due
      date specified in the Debentures.  In connection with such Direct
      Action, the rights of the Holders of the Common Securities will be subrogated
      to
      the rights of such Holder of the Capital Securities to the extent of any payment
      made by the Debenture Issuer to such Holder of the Capital Securities in such
      Direct Action; provided, however, that a Holder of the Common
      Securities may exercise such right of subrogation only if no Event of Default
      with respect to the Capital Securities has occurred and is
      continuing.

     

    (f)           The
      Institutional Trustee shall continue to serve as a Trustee until
      either:

     

    (i)           the
      Trust has been completely liquidated and the proceeds of the liquidation
      distributed to the Holders of the Securities pursuant to the terms of the
      Securities and this Declaration (including Annex I); or

     

    (ii)           a
      Successor Institutional Trustee has been appointed and has accepted that
      appointment in accordance with Section 4.7.

     

    (g)           The
      Institutional Trustee shall have the legal power to exercise all of the rights,
      powers and privileges of a holder of the Debentures under the Indenture and,
      if
      an Event of Default occurs and is continuing, the Institutional Trustee may,
      for
      the benefit of Holders of the Securities, enforce its rights as holder of the
      Debentures subject to the rights of the Holders pursuant to this Declaration
      (including Annex I) and the terms of the Securities.

     

    (h)           The
      Institutional Trustee must exercise the powers set forth in this Section 2.8
      in
      a manner that is consistent with the purposes and functions of the Trust set
      out
      in Section 2.3, and the Institutional Trustee shall not take any action that
      is
      inconsistent with the purposes and functions of the Trust set out in Section
      2.3.

     

    
      
        
        

      

      
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    Section
      2.9.  Certain
      Duties and Responsibilities of the Trustees and the
      Administrators.

     

    (a)           The
      Institutional Trustee, before the occurrence of any Event of Default (of which
      the Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
      and after the curing of all Events of Default that may have occurred, shall
      undertake to perform only such duties as are specifically set forth in this
      Declaration and no implied covenants shall be read into this Declaration against
      the Institutional Trustee.  In case an Event of Default (of which the
      Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)),
      has occurred (that has not been cured or waived pursuant to Section 6.7), the
      Institutional Trustee shall exercise such of the rights and powers vested in
      it
      by this Declaration, and use the same degree of care and skill in their
      exercise, as a prudent person would exercise or use under the circumstances
      in
      the conduct of his or her own affairs.

     

    (b)           The
      duties and responsibilities of the Trustees and the Administrators shall be
      as
      provided by this Declaration and, in the case of the Institutional Trustee,
      by
      the Trust Indenture Act.  Notwithstanding the foregoing, no provision
      of this Declaration shall require any Trustee or Administrator 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 rights or powers,
      if it shall have reasonable grounds for believing that repayment of such funds
      or adequate indemnity satisfactory to it against such risk or liability is
      not
      reasonably assured to it.  Whether or not therein expressly so
      provided, every provision of this Declaration relating to the conduct or
      affecting the liability of or affording protection to the Trustees or the
      Administrators shall be subject to the provisions of this
      Article.  Nothing in this Declaration shall be construed to release a
      Trustee from liability for its own negligent action, its own negligent failure
      to act, or its own willful misconduct.  Nothing in this Declaration
      shall be construed to release an Administrator from liability for its own gross
      negligent action, its own gross negligent failure to act, or its own willful
      misconduct.  To the extent that, at law or in equity, a Trustee or an
      Administrator has duties (including fiduciary duties) to the Trust or to the
      Holders, such Trustee’s or Administrator’s duties may be restricted or
      eliminated by provisions in this Declaration, except that this Declaration
      may
      not eliminate the implied contractual covenant of good faith and fair
      dealing.  A Trustee or Administrator shall not be liable to the Trust
      or a Holder or another Person that is party to or is otherwise bound by the
      Declaration for breach of fiduciary duty for such Trustee’s or Administrator’s
      good faith reliance on the provisions of the Declaration.  The
      provisions of this Declaration, to the extent that they restrict or eliminate
      the liabilities of the Trustees or the Administrators otherwise existing at
      law
      or in equity, are agreed by the Sponsor and the Holders to replace such other
      liabilities of the Trustees or the Administrators, as the case may be, except
      that no provision of this Declaration may limit or eliminate liability for
      any
      act or omission that constitutes a bad faith violation of the implied
      contractual covenant of good faith and fair dealing.

     

    (c)           All
      payments made by the Institutional Trustee or a Paying Agent in respect of
      the
      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 Institutional Trustee or a Paying
      Agent to make payments in accordance with the terms hereof.  Each
      Holder, by its acceptance of a Security, agrees that it will look solely to
      the
      revenue and proceeds from the Trust Property to the extent legally available
      for
      distribution to it as herein provided and that the Trustees and the
      Administrators are not 

    
      
        
        

      

      
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personally
        liable to it for any amount distributable in respect of any Security or for
        any
        other liability in respect of any Security.  This Section 2.9(c) does
        not limit the liability of the Trustees expressly set forth elsewhere in
        this
        Declaration or, in the case of the Institutional Trustee, in the Trust Indenture
        Act.

    

     

    (d)           No
      provision of this Declaration shall be construed to relieve the Institutional
      Trustee from liability for its own negligent action, its own negligent failure
      to act, or its own willful misconduct with respect to matters that are within
      the authority of the Institutional Trustee under this Declaration, except
      that:

     

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

     

    (ii)           the
      Institutional 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 not less than a Majority in liquidation amount of the Capital
      Securities or the Common Securities, as applicable, relating to the time, method
      and place of conducting any proceeding for any remedy available to the
      Institutional Trustee, or exercising any trust or power conferred upon the
      Institutional Trustee under this Declaration;

     

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

     

    (iv)           the
      Institutional Trustee shall not be liable for any interest on any money received
      by it except as it may otherwise agree in writing with the Sponsor; and money
      held by the Institutional Trustee need not be segregated from other funds held
      by it except in relation to the Property Account maintained by the Institutional
      Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
      required by law; and

     

    (v)           the
      Institutional Trustee shall not be responsible for monitoring the compliance
      by
      the Administrators or the Sponsor with their respective duties under this
      Declaration, nor shall the Institutional Trustee be liable for any default
      or
      misconduct of the Administrators or the Sponsor.

     

    
      
        
        

      

      
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    Section
      2.10.  Certain
      Rights of Institutional Trustee.  Subject to the provisions of
      Section 2.9:

     

    (a)           the
      Institutional Trustee may conclusively rely and shall fully be protected in
      acting or refraining from acting in good faith upon any resolution, written
      opinion of counsel, certificate, written representation of a Holder or
      transferee, certificate of auditors or any other 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, sent or
      presented by the proper party or parties;

     

    (b)           if
      (i) in performing its duties under this Declaration, the Institutional
      Trustee is required to decide between alternative courses of action,
      (ii) in construing any of the provisions of this Declaration, the
      Institutional Trustee finds the same ambiguous or inconsistent with any other
      provisions contained herein, or (iii) the Institutional Trustee is unsure
      of the application of any provision of this Declaration, then, except as to
      any
      matter as to which the Holders of Capital Securities are entitled to vote under
      the terms of this Declaration, the Institutional Trustee may deliver a notice
      to
      the Sponsor requesting the Sponsor’s opinion as to the course of action to be
      taken and the Institutional Trustee shall take such action, or refrain from
      taking such action, as the Institutional Trustee in its sole discretion shall
      deem advisable and in the best interests of the Holders, in which event the
      Institutional Trustee shall have no liability except for its own negligence
      or
      willful misconduct;

     

    (c)           any
      direction or act of the Sponsor or the Administrators contemplated by this
      Declaration shall be sufficiently evidenced by an Officers’
Certificate;

     

    (d)           whenever
      in the administration of this Declaration, the Institutional Trustee shall
      deem
      it desirable that a matter be proved or established before undertaking,
      suffering or omitting any action hereunder, the Institutional Trustee (unless
      other evidence is herein specifically prescribed) may, in the absence of bad
      faith on its part, request and conclusively rely upon an Officers’ Certificate
      which, upon receipt of such request, shall be promptly delivered by the Sponsor
      or the Administrators;

     

    (e)           the
      Institutional 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 rerecording,
      refiling or reregistration thereof;

     

    (f)           the
      Institutional Trustee may consult with counsel of its selection (which counsel
      may be counsel to the Sponsor or any of its Affiliates) 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 Institutional Trustee
      shall have the right at any time to seek instructions concerning the
      administration of this Declaration from any court of competent
      jurisdiction;

     

    (g)           the
      Institutional Trustee shall be under no obligation to exercise any of the rights
      or powers vested in it by this Declaration at the request or direction of any
      of
      the Holders pursuant to this Declaration, unless such Holders shall have offered
      to the Institutional Trustee security or indemnity reasonably satisfactory
      to it
      against the costs, expenses and liabilities 

    
      
        
        

      

      
        19

        
          

        

      

      
        
        
which
        might be incurred by it in compliance with such request or direction;
provided, that nothing contained in this Section 2.10(g) shall be
        taken to relieve the Institutional Trustee, upon the occurrence of an Event
        of
        Default (of which the Institutional Trustee has knowledge (as provided in
        Section 2.10(m) hereof)) that has not been cured or waived, of its obligation
        to
        exercise the rights and powers vested in it by this
        Declaration;

    

     

    (h)           the
      Institutional 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, 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 Institutional
      Trustee may make such further inquiry or investigation into such facts or
      matters as it may see fit;

     

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

     

    (j)           whenever
      in the administration of this Declaration the Institutional Trustee shall deem
      it desirable to receive instructions with respect to enforcing any remedy or
      right or taking any other action hereunder, the Institutional Trustee
      (i) may request instructions from the Holders of the Common Securities and
      the Capital Securities, which instructions may be given only by the Holders
      of
      the same proportion in liquidation amount of the Common Securities and the
      Capital Securities as would be entitled to direct the Institutional Trustee
      under the terms of the Common Securities and the Capital Securities 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 fully protected in acting in accordance with such
      instructions;

     

    (k)           except
      as otherwise expressly provided in this Declaration, the Institutional Trustee
      shall not be under any obligation to take any action that is discretionary
      under
      the provisions of this Declaration;

     

    (l)           when
      the Institutional Trustee incurs expenses or renders services in connection
      with
      a Bankruptcy Event, such expenses (including the fees and expenses of its
      counsel) and the compensation for such services are intended to constitute
      expenses of administration under any bankruptcy law or law relating to creditors
      rights generally;

     

    (m)           the
      Institutional Trustee shall not be charged with knowledge of an Event of Default
      unless a Responsible Officer of the Institutional Trustee has actual knowledge
      of such event or the Institutional Trustee receives written notice of such
      event
      from any Holder, except with respect to an Event of Default pursuant to Sections
      5.01(a), 5.01(b) or 5.01(c) of the Indenture (other than an Event of Default
      resulting from the default in the payment of Additional Interest or premium,
      if
      any, if the Institutional Trustee does not have actual knowledge or written
      notice that such payment is due and payable), of which the Institutional Trustee
      shall be deemed to have knowledge;

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

    
       

    

    (n)           any
      action taken by the Institutional Trustee or its agents hereunder shall bind
      the
      Trust and the Holders of the Securities, and the signature of the Institutional
      Trustee or its agents alone shall be sufficient and effective to perform any
      such action and no third party shall be required to inquire as to the authority
      of the Institutional Trustee to so act or as to its compliance with any of
      the
      terms and provisions of this Declaration, both of which shall be conclusively
      evidenced by the Institutional Trustee’s or its agent’s taking such action;
      and

     

    (o)           no
      provision of this Declaration shall be deemed to impose any duty or obligation
      on the Institutional 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 the Institutional Trustee 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.  No permissive power or authority available to the
      Institutional Trustee shall be construed to be a duty.

     

    Section
      2.11.  Delaware
      Trustee.  Notwithstanding any other provision of this Declaration
      other than Section 4.2, the Delaware Trustee shall not be entitled to exercise
      any powers, nor shall the Delaware Trustee have any of the duties and
      responsibilities of any of the Trustees or the Administrators described in
      this
      Declaration (except as may be required under the Statutory Trust
      Act).  Except as set forth in Section 4.2, the Delaware Trustee shall
      be a Trustee for the sole and limited purpose of fulfilling the requirements
      of
§ 3807 of the Statutory Trust Act.

     

    Section
      2.12.  Execution
      of Documents.  Unless otherwise determined in writing by the
      Institutional Trustee, and except as otherwise required by the Statutory Trust
      Act, the Institutional Trustee, or any one or more of the Administrators, as
      the
      case may be, is authorized to execute and deliver on behalf of the Trust any
      documents, agreements, instruments or certificates that the Trustees or the
      Administrators, as the case may be, have the power and authority to execute
      pursuant to Section 2.6.

     

    Section
      2.13.  Not
      Responsible for Recitals or Issuance of Securities.  The recitals
      contained in this Declaration and the Securities shall be taken as the
      statements of the Sponsor, and the Trustees do not assume any responsibility
      for
      their correctness.  The Trustees make no representations as to the
      value or condition of the property of the Trust or any part
      thereof.  The Trustees make no representations as to the validity or
      sufficiency of this Declaration, the Debentures or the Securities.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    Section
      2.14.  Duration
      of Trust.  The Trust, unless dissolved pursuant to the provisions
      of Article VII hereof, shall have existence for five (5) years from the Maturity
      Date.

     

    Section
      2.15.  Mergers  (a)  The
      Trust may not 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 corporation or other Person, except as described in this Section
      2.15 and except with respect to the distribution of Debentures to Holders of
      Securities pursuant to Section 7.1(a)(iv) of the Declaration or Section 4 of
      Annex I. 

     

    (b)           The
      Trust may, with the consent of the Administrators (which consent will not be
      unreasonably withheld) and without the consent of the Institutional Trustee,
      the
      Delaware Trustee or the Holders of the Capital Securities, consolidate,
      amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
      its properties and assets as an entirety or substantially as an entirety to
      a
      trust organized as such under the laws of any State; provided,
      that:

     

    (i)           if
      the Trust is not the survivor, such successor entity (the “Successor Entity”)
      either:

     

    (A)           expressly
      assumes all of the obligations of the Trust under the Securities;
      or

     

    (B)           substitutes
      for the Securities other securities having substantially the same terms as
      the
      Securities (the “Successor Securities”) so that the Successor Securities rank
      the same as the Securities rank with respect to Distributions and payments
      upon
      Liquidation, redemption and otherwise;

     

    (ii)           the
      Sponsor expressly appoints, as the holder of the Debentures, a trustee of the
      Successor Entity that possesses the same powers and duties as the Institutional
      Trustee;

     

    (iii)           the
      Capital Securities or any Successor Securities (excluding any securities
      substituted for the Common Securities) are listed or quoted, or any Successor
      Securities will be listed or quoted upon notification of issuance, on any
      national securities exchange or with another organization on which the Capital
      Securities are then listed or quoted, if any;

     

    (iv)           such
      merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
      does not cause the rating on the Capital Securities (including any Successor
      Securities) to be downgraded or withdrawn by any nationally recognized
      statistical rating organization, if the Capital Securities are then
      rated;

     

    (v)           such
      merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
      does not adversely affect the rights, preferences and privileges of the Holders
      of the Securities (including any Successor Securities) in any material respect
      (other than with respect to any dilution of such Holders’ interests in the
      Successor Entity as a result of such merger, consolidation, amalgamation or
      replacement);

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

    (vi)           such
      Successor Entity has a purpose substantially identical to that of the
      Trust;

     

    (vii)           prior
      to such merger, consolidation, amalgamation, replacement, conveyance, transfer
      or lease, the Trust has received a written opinion of a nationally recognized
      independent counsel to the Trust experienced in such matters to the effect
      that:

     

    (A)           such
      merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
      does not adversely affect the rights, preferences and privileges of the Holders
      of the Securities (including any Successor Securities) in any material respect
      (other than with respect to any dilution of the Holders’ interests in the
      Successor Entity);

     

    (B)           following
      such merger, consolidation, amalgamation, replacement, conveyance, transfer
      or
      lease, neither the Trust nor the Successor Entity will be required to register
      as an Investment Company; and

     

    (C)           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 United States federal income tax purposes;

     

    (viii)                      the
      Sponsor guarantees the obligations of such Successor Entity under the Successor
      Securities to the same extent provided by the Indenture, the Guarantee, the
      Debentures and this Declaration; and

     

    (ix)           prior
      to such merger, consolidation, amalgamation, replacement, conveyance, transfer
      or lease, the Institutional Trustee shall have received an Officers’ Certificate
      of the Administrators and an opinion of counsel, each to the effect that all
      conditions precedent of this paragraph (b) to such transaction have been
      satisfied.

     

    (c)           Notwithstanding
      Section 2.15(b), the Trust shall not, except with the consent of Holders of
      100%
      in liquidation amount of the Securities, consolidate, amalgamate, merge with
      or
      into, or be replaced by, or convey, transfer or lease its properties and assets
      as an entirety or substantially as an entirety to, any other Person or permit
      any other Person to consolidate, amalgamate, merge with or into, or replace
      it
      if such consolidation, amalgamation, merger, replacement, conveyance, transfer
      or lease would cause the Trust or Successor Entity to be classified as other
      than a grantor trust for United States federal income tax purposes.

     

    
      
        
        

      

      
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           ARTICLE
      III                                

     

     SPONSOR

     

    Section
      3.1.  Sponsor’s
      Purchase of Common Securities.  On the Closing Date, the Sponsor
      will purchase all of the Common Securities issued by the Trust, in an amount
      at
      least equal to 3% of the capital of the Trust, at the same time as the Capital
      Securities are sold.

     

    Section
      3.2.  Responsibilities
      of the Sponsor.  In connection with the issue and sale of the
      Capital Securities, the Sponsor shall have the exclusive right and
      responsibility to engage in, or direct the Administrators to engage in, the
      following activities:

     

    (a)           to
      determine the States in which to take appropriate action to qualify or register
      for sale all or part of the Capital Securities and to do any and all such acts,
      other than actions which must be taken by the Trust, and advise the Trust of
      actions it must take, and prepare for execution and filing any documents to
      be
      executed and filed by the Trust, as the Sponsor deems necessary or advisable
      in
      order to comply with the applicable laws of any such States;

     

    (b)           to
      prepare for filing and request the Administrators to cause the filing by the
      Trust, as may be appropriate, of an application to the PORTAL system, for
      listing or quotation upon notice of issuance of any Capital Securities, as
      requested by the Holders of not less than a Majority in liquidation amount
      of
      the Capital Securities; and

     

    (c)           to
      negotiate the terms of and/or execute and deliver on behalf of the Trust, the
      Purchase Agreement, the Placement Agreement, the Capital Securities Subscription
      Agreement and other related agreements providing for the sale of the Capital
      Securities.

     

                             
      ARTICLE
      IV                                

     

      TRUSTEES
      AND
      ADMINISTRATORS

     

    Section
      4.1.  Number
      of Trustees.  The number of Trustees initially shall be two, and:


     

    (a)           at
      any time before the issuance of any Securities, the Sponsor may, by written
      instrument, increase or decrease the number of Trustees; and

     

    (b)           after
      the issuance of any Securities, the number of Trustees may be increased or
      decreased by vote of the Holder of a Majority in liquidation amount of the
      Common Securities voting as a class at a meeting of the Holder of the Common
      Securities; provided, however, that there shall be a Delaware
      Trustee if required by Section 4.2; and there shall always be one Trustee who
      shall be the Institutional Trustee, and such Trustee may also serve as Delaware
      Trustee if it meets the applicable requirements, in which case Section 2.11
      shall have no application to such entity in its capacity as Institutional
      Trustee.

     

    Section
      4.2.  Delaware
      Trustee.  If required by the Statutory Trust Act, one Trustee (the
“Delaware Trustee”) shall be:

     

    (a)           a
      natural person who is a resident of the State of Delaware; or

     

    
      
        
        

      

      
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    (b)           if
      not a natural person, an entity which is organized under the laws of the United
      States or any State thereof or the District of Columbia, has its principal
      place
      of business in the State of Delaware, and otherwise meets the requirements
      of
      applicable law, including §3807 of the Statutory Trust Act.

     

    Section
      4.3.  Institutional
      Trustee;
      Eligibility.     (a)           There
      shall at all times be one Trustee which shall act as Institutional Trustee
      which
      shall:

     

    (i)           not
      be an Affiliate of the Sponsor;

     

    (ii)           not
      offer or provide credit or credit enhancement to the Trust; and

     

    (iii)           be
      a banking corporation or national association organized and doing business
      under
      the laws of the United States of America or any State thereof or of the District
      of Columbia and authorized under such laws to exercise corporate trust powers,
      having a combined capital and surplus of at least fifty million U.S. dollars
      ($50,000,000), and subject to supervision or examination by federal, State
      or
      District of Columbia authority.  If such corporation or national
      association publishes reports of condition at least annually, pursuant to law
      or
      to the requirements of the supervising or examining authority referred to above,
      then for the purposes of this Section 4.3(a)(iii), the combined capital and
      surplus of such corporation or national association shall be deemed to be its
      combined capital and surplus as set forth in its most recent report of condition
      so published.

     

    (b)           If
      at any time the Institutional Trustee shall cease to be eligible to so act
      under
      Section 4.3(a), the Institutional Trustee shall immediately resign in the manner
      and with the effect set forth in Section 4.7.

     

    (c)           If
      the Institutional Trustee has or shall acquire any “conflicting interest” within
      the meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee
      shall either eliminate such interest or resign, to the extent and in the manner
      provided by, and subject to this Declaration.

     

    (d)           The
      initial Institutional Trustee shall be Wilmington Trust Company.

     

    Section
      4.4.  Certain
      Qualifications of the Delaware Trustee Generally.  The Delaware
      Trustee shall be a U.S. Person and either a natural person who is at least
      21
      years of age or a legal entity that shall act through one or more Authorized
      Officers.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

    Section
      4.5.  Administrators.  Each
      Administrator shall be a U.S. Person.   There shall at all times
      be at least one Administrator.  Except where a requirement for action
      by a specific number of Administrators is expressly set forth in this
      Declaration and except with respect to any action the taking of which is the
      subject of a meeting of the Administrators, any action required or permitted
      to
      be taken by the Administrators may be taken by, and any power of the
      Administrators may be exercised by, or with the consent of, any one such
      Administrator acting alone.

     

    Section
      4.6.  Initial
      Delaware Trustee.  The initial Delaware Trustee shall be
      Wilmington Trust Company.

     

    Section
      4.7.  Appointment,
      Removal and Resignation of the Trustees and the
      Administrators.  

     

    (a)           No
      resignation or removal of any Trustee (the “Relevant Trustee”) and no
      appointment of a successor Trustee pursuant to this Article shall become
      effective until the acceptance of appointment by the successor Trustee in
      accordance with the applicable requirements of this
      Section 4.7.

     

    (b)           Subject
      to Section 4.7(a), a Relevant Trustee may resign at any time by giving written
      notice thereof to the Holders of the Securities and by appointing a successor
      Relevant Trustee.  Upon the resignation of the Institutional Trustee,
      the Institutional Trustee shall appoint a successor by requesting from at least
      three Persons meeting the eligibility requirements their expenses and charges
      to
      serve as the successor Institutional Trustee on a form provided by the
      Administrators, and selecting the Person who agrees to the lowest expense and
      charges (the “Successor Institutional Trustee”).  If the instrument of
      acceptance by the successor Relevant Trustee required by this Section 4.7 shall
      not have been delivered to the Relevant Trustee within 60 days after the giving
      of such notice of resignation or delivery of the instrument of removal, the
      Relevant Trustee may petition, at the expense of the Trust, any federal, State
      or District of Columbia court of competent jurisdiction for the appointment
      of a
      successor Relevant Trustee.  Such court may thereupon, after
      prescribing such notice, if any, as it may deem proper, appoint a Relevant
      Trustee.  The Institutional Trustee shall have no liability for the
      selection of such successor pursuant to this Section 4.7.

     

    (c)           Unless
      an Event of Default shall have occurred and be continuing, any Trustee may
      be
      removed at any time by an act of the Holders of a Majority in liquidation amount
      of the Common Securities.  If any Trustee shall be so removed, the
      Holders of the Common Securities, by act of the Holders of a Majority in
      liquidation amount of the Common Securities delivered to the Relevant Trustee,
      shall promptly appoint a successor Relevant Trustee, and such successor Trustee
      shall comply with the applicable requirements of this Section 4.7.  If
      an Event of Default shall have occurred and be continuing, the Institutional
      Trustee or the Delaware Trustee, or both of them, may be removed by the act
      of
      the Holders of a Majority in liquidation amount of the Capital Securities,
      delivered to the Relevant Trustee (in its individual capacity and on behalf
      of
      the Trust).  If any Trustee shall be so removed, the Holders of
      Capital Securities, by act of the Holders of a Majority in liquidation amount
      of
      the Capital Securities then outstanding delivered to the Relevant Trustee,
      shall
      promptly appoint a successor Relevant Trustee or Trustees, and such successor
      Trustee shall comply with the applicable requirements of this Section
      4.7.  If no successor Relevant Trustee shall have been so appointed by
      the Holders of a Majority in liquidation amount of the Capital Securities and
      accepted appointment in the manner required by this Section 4.7 within 30 days
      after delivery of an instrument of removal, the Relevant Trustee or any Holder
      who has been a Holder of the Securities for at least six months may, on behalf
      of himself and all others similarly situated, petition any federal, State or
      District of Columbia court of competent jurisdiction for the appointment of
      a
      successor Relevant Trustee.  Such court may thereupon, after
      prescribing such notice, if any, as it may deem proper, appoint a successor
      Relevant Trustee or Trustees.

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

    (d)           The
      Institutional Trustee shall give notice of each resignation and each removal
      of
      a Trustee and each appointment of a successor Trustee to all Holders and to
      the
      Sponsor.  Each notice shall include the name of the successor Relevant
      Trustee and the address of its Corporate Trust Office if it is the Institutional
      Trustee.

     

    (e)           Notwithstanding
      the foregoing or any other provision of this Declaration, in the event a
      Delaware Trustee who is a natural person dies or is adjudged by a court to
      have
      become incompetent or incapacitated, the vacancy created by such death,
      incompetence or incapacity may be filled by the Institutional Trustee following
      the procedures in this Section 4.7 (with the successor being a Person who
      satisfies the eligibility requirement for a Delaware Trustee set forth in this
      Declaration) (the “Successor Delaware Trustee”).

     

    (f)           In
      case of the appointment hereunder of a successor Relevant Trustee, the retiring
      Relevant Trustee and each successor Relevant Trustee with respect to the
      Securities shall execute and deliver an amendment hereto wherein each successor
      Relevant Trustee shall accept such appointment and which (i) shall contain
      such
      provisions as shall be necessary or desirable to transfer and confirm to, and
      to
      vest in, each successor Relevant Trustee all the rights, powers, trusts and
      duties of the retiring Relevant Trustee with respect to the Securities and
      the
      Trust and (ii) shall add to or change any of the provisions of this Declaration
      as shall be necessary to provide for or facilitate the administration of the
      Trust by more than one Relevant Trustee, it being understood that nothing herein
      or in such amendment shall constitute such Relevant Trustees co-trustees and
      upon the execution and delivery of such amendment the resignation or removal
      of
      the retiring Relevant Trustee shall become effective to the extent provided
      therein and each such successor Relevant Trustee, without any further act,
      deed
      or conveyance, shall become vested with all the rights, powers, trusts and
      duties of the retiring Relevant Trustee; but, on request of the Trust or any
      successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
      transfer and deliver to such successor Relevant Trustee all Trust Property,
      all
      proceeds thereof and money held by such retiring Relevant Trustee hereunder
      with
      respect to the Securities and the Trust subject to the payment of all unpaid
      fees, expenses and indemnities of such retiring Relevant Trustee.

     

    (g)           No
      Institutional Trustee or Delaware Trustee shall be liable for the acts or
      omissions to act of any Successor Institutional Trustee or Successor Delaware
      Trustee, as the case may be.

     

    (h)           The
      Holders of the Capital Securities will have no right to vote to appoint, remove
      or replace the Administrators, which voting rights are vested exclusively in
      the
      Holders of the Common Securities.

     

    (i)           Any
      successor Delaware Trustee shall file an amendment to the Certificate of Trust
      with the Secretary of State of the State of Delaware identifying the name and
      principal place of business of such Delaware Trustee in the State of
      Delaware.

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

    Section
      4.8.  Vacancies
      Among Trustees.  If a Trustee ceases to hold office for any reason
      and the number of Trustees is not reduced pursuant to Section 4.1, or if the
      number of Trustees is increased pursuant to Section 4.1, a vacancy shall
      occur.  A resolution certifying the existence of such vacancy by the
      Trustees or, if there are more than two, a majority of the Trustees shall be
      conclusive evidence of the existence of such vacancy.  The vacancy
      shall be filled with a Trustee appointed in accordance with Section
      4.7.

     

    Section
      4.9.  Effect
      of Vacancies.  The death, resignation, retirement, removal,
      bankruptcy, dissolution, liquidation, incompetence or incapacity to perform
      the
      duties of a Trustee shall not operate to dissolve, terminate or annul the Trust
      or terminate this Declaration.  Whenever a vacancy in the number of
      Trustees shall occur, until such vacancy is filled by the appointment of a
      Trustee in accordance with Section 4.7, the Institutional Trustee shall have
      all
      the powers granted to the Trustees and shall discharge all the duties imposed
      upon the Trustees by this Declaration. 

     

    Section
      4.10.  Meetings
      of the Trustees and the Administrators.  Meetings of the Trustees
      or the Administrators shall be held from time to time upon the call of any
      Trustee or Administrator, as applicable.  Regular meetings of the
      Trustees and the Administrators, respectively, may be in person in the United
      States or by telephone, at a place (if applicable) and time fixed by resolution
      of the Trustees or the Administrators, as applicable.  Notice of any
      in-person meetings of the Trustees or the Administrators shall be hand delivered
      or otherwise delivered in writing (including by facsimile, with a hard copy
      by
      overnight courier) not less than 48 hours before such meeting.  Notice
      of any telephonic meetings of the Trustees or the Administrators or any
      committee thereof shall be hand delivered or otherwise delivered in writing
      (including by facsimile, with a hard copy by overnight courier) not less than
      24
      hours before a meeting.  Notices shall contain a brief statement of
      the time, place and anticipated purposes of the meeting.  The presence
      (whether in person or by telephone) of a Trustee or an Administrator, as the
      case may be, at a meeting shall constitute a waiver of notice of such meeting
      except where a Trustee or an Administrator, as the case may be, attends a
      meeting for the express purpose of objecting to the transaction of any activity
      on the ground that the meeting has not been lawfully called or
      convened.  Unless provided otherwise in this Declaration, any action
      of the Trustees or the Administrators, as the case may be, may be taken at
      a
      meeting by vote of a majority of the Trustees or the Administrators present
      (whether in person or by telephone) and eligible to vote with respect to such
      matter; provided, that, in the case of the Administrators, a Quorum is
      present, or without a meeting by the unanimous written consent of the Trustees
      or the Administrators, as the case may be.  Meetings of the Trustees
      and the Administrators together shall be held from time to time upon the call
      of
      any Trustee or Administrator.

     

    
      
        
        

      

      
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    Section
      4.11.  Delegation
      of Power.    
 (a)       Any Trustee or any Administrator,
      as the case may be, may, by power of attorney consistent with applicable law,
      delegate to any other natural person over the age of 21 that is a U.S. Person
      his or her power for the purpose of executing any documents, instruments or
      other writings contemplated in Section 2.6.

     

    (b)           The
      Trustees shall have power to delegate from time to time to such of their number
      or to any officer of the Trust that is a U.S. Person, the doing of such things
      and the execution of such instruments or other writings 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 the Trust, as set forth herein.

     

    Section
      4.12.  Merger,
      Conversion, Consolidation or Succession to Business.  Any Person
      into which the Institutional Trustee or the Delaware Trustee, as the case may
      be, may be merged or converted or with which either may be consolidated, or
      any
      Person resulting from any merger, conversion or consolidation to which the
      Institutional Trustee or the Delaware Trustee, as the case may be, shall be
      a
      party, or any Person succeeding to all or substantially all the corporate trust
      business of the Institutional Trustee or the Delaware Trustee, as the case
      may
      be, shall be the successor of the Institutional Trustee or the Delaware Trustee,
      as the case may be, hereunder, without the execution or filing of any paper
      or
      any further act on the part of any of the parties hereto, provided such Person
      shall be otherwise qualified and eligible under this Article and,
provided, further, that such Person shall file an amendment to the
      Certificate of Trust with the Secretary of State of the State of Delaware as
      contemplated in Section 4.7(i).

     

                              
      ARTICLE
      V                                

     

     

    DISTRIBUTIONS

     

    Section
      5.1.  Distributions.  Holders
      shall receive Distributions in accordance with the applicable terms of the
      relevant Holder’s Securities.  Distributions shall be made on the
      Capital Securities and the Common Securities in accordance with the preferences
      set forth in their respective terms.  If and to the extent that the
      Debenture Issuer makes a payment of interest (including any Additional Interest
      or Deferred Interest) or premium, if any, on and/or principal on the Debentures
      held by the Institutional Trustee (the amount of any such payment being a
“Payment Amount”), the Institutional Trustee shall and is directed, to the
      extent funds are available in the Property Account for that purpose, to make
      a
      distribution (a “Distribution”) of the Payment Amount to Holders.  For
      the avoidance of doubt, funds in the Property Account shall not be distributed
      to Holders to the extent of any taxes payable by the Trust, in the case of
      withholding taxes, as determined by the Institutional Trustee or any Paying
      Agent and, in the case of taxes other than withholding taxes, as determined
      by
      the Administrators in a written notice to the Institutional
      Trustee.

     

                        
      ARTICLE
      VI                                

    
 

    ISSUANCE
      OF SECURITIES

     

    Section
      6.1.  General
      Provisions Regarding Securities.  

     

    (a)           The
      Administrators shall on behalf of the Trust issue one series of capital
      securities, evidenced by a certificate substantially in the form of
      Exhibit A-1, representing undivided beneficial interests in the assets of
      the Trust and having such terms as are set forth in 

    
      
        
        

      

      
        29

        
          

        

      

      
        
        
Annex I
        (the “Capital Securities”), and one series of common securities, evidenced by a
        certificate substantially in the form of Exhibit A-2, representing undivided
        beneficial interests in the assets of the Trust and having such terms as
        are set
        forth in Annex I (the “Common Securities”).  The Trust shall
        issue no securities or other interests in the assets of the Trust other than
        the
        Capital Securities and the Common Securities.  The Capital Securities
        rank pari passu and payment thereon shall be made Pro Rata with the
        Common Securities except that, where an Event of Default has occurred and
        is
        continuing, the rights of Holders of the Common Securities to payment in
        respect
        of Distributions and payments upon liquidation, redemption and otherwise
        are
        subordinated to the rights to payment of the Holders of the Capital
        Securities.

    

     

    (b)           The
      Certificates shall be signed on behalf of the Trust by one or more
      Administrators.  Such signature shall be the facsimile or manual
      signature of any Administrator.  In case any Administrator of the
      Trust who shall have signed any of the Securities shall cease to be such
      Administrator before the Certificates so signed shall be delivered by the Trust,
      such Certificates nevertheless may be delivered as though the person who signed
      such Certificates had not ceased to be such Administrator.  Any
      Certificate may be signed on behalf of the Trust by such person who, at the
      actual date of execution of such Certificate, shall be an Administrator of
      the
      Trust, although at the date of the execution and delivery of the Declaration
      any
      such person was not such an Administrator.  A Capital Security shall
      not be valid until the Certificate evidencing it is authenticated by the manual
      or facsimile signature of an Authorized Officer of the Institutional
      Trustee.  Such signature shall be conclusive evidence that the
      Certificate evidencing such Capital Security has been authenticated under this
      Declaration.  Upon written order of the Trust signed by one
      Administrator, the Institutional Trustee shall authenticate one or more
      Certificates evidencing the Capital Securities for original
      issue.  The Institutional Trustee may appoint an authenticating agent
      that is a U.S. Person acceptable to the Trust to authenticate Certificates
      evidencing the Capital Securities.  A Common Security need not be so
      authenticated and shall be valid upon execution by one or more
      Administrators.

     

    (c)           The
      consideration received by the Trust for the issuance of the Securities shall
      constitute a contribution to the capital of the Trust and shall not constitute
      a
      loan to the Trust.

     

    (d)           Upon
      issuance of the Securities as provided in this Declaration, the Securities
      so
      issued shall be deemed to be validly issued, fully paid and non-assessable,
      and
      each Holder thereof shall be entitled to the benefits provided by this
      Declaration.

     

    (e)           Every
      Person, by virtue of having become a Holder in accordance with the terms of
      this
      Declaration, shall be deemed to have expressly assented and agreed to the terms
      of, and shall be bound by, this Declaration and the Guarantee.

     

    Section
      6.2.  Paying
      Agent, Transfer Agent, Calculation Agent and
      Registrar.  

     

    (a)           The
      Trust shall maintain in Wilmington, Delaware, an office or agency where the
      Securities may be presented for payment (the “Paying Agent”), and an office or
      agency where Securities may be presented for registration of transfer or
      exchange (the “Transfer 

    
      
        
        

      

      
        30

        
          

        

      

      
        
        
Agent”).  The
        Trust shall keep or cause to be kept at such office or agency a register
        (the
“Securities Register”) for the purpose of registering Securities and transfers
        and exchanges of Securities, such Securities Register to be held by a registrar
        (the “Registrar”).  The Administrators may appoint the Paying Agent,
        the Registrar and the Transfer Agent, and may appoint one or more additional
        Paying Agents, one or more co-Registrars, or one or more co-Transfer Agents
        in
        such other locations as it shall determine.  The term “Paying Agent”
includes any additional Paying Agent, the term “Registrar” includes any
        additional Registrar or co-Registrar and the term “Transfer Agent” includes any
        additional Transfer Agent or co-Transfer Agent.  The Administrators
        may change any Paying Agent, Transfer Agent or Registrar at any time without
        prior notice to any Holder.  The Administrators shall notify the
        Institutional Trustee of the name and address of any Paying Agent, Transfer
        Agent and Registrar not a party to this Declaration.  The
        Administrators hereby initially appoint the Institutional Trustee to act
        as
        Paying Agent, Transfer Agent and Registrar for the Capital Securities and
        the
        Common Securities at its Corporate Trust Office.  The Institutional
        Trustee or any of its Affiliates in the United States may act as Paying Agent,
        Transfer Agent or Registrar.

    

     

    (b)           The
      Trust shall also appoint a Calculation Agent, which shall determine the Coupon
      Rate in accordance with the terms of the Securities.  The Trust
      initially appoints the Institutional Trustee as Calculation Agent.

     

    Section
      6.3.  Form
      and Dating.  

     

    (a)           The
      Capital Securities shall be evidenced by one or more Certificates and the
      Institutional Trustee’s certificate of authentication thereon shall be
      substantially in the form of Exhibit A-1, and the Common Securities shall be
      evidenced by one or more Certificates substantially in the form of
      Exhibit A-2, each of which is hereby incorporated in and expressly made a
      part of this Declaration.  Certificates may be typed, printed,
      lithographed or engraved or may be produced in any other manner as is reasonably
      acceptable to the Administrators, as conclusively evidenced by their execution
      thereof.  Certificates evidencing Securities may have letters,
      numbers, notations or other marks of identification or designation and such
      legends or endorsements required by law, stock exchange rule, agreements to
      which the Trust is subject, if any, or usage (provided, that any such
      notation, legend or endorsement is in a form acceptable to the
      Sponsor).  The Trust at the direction of the Sponsor shall furnish any
      such legend not contained in Exhibit A-1 to the Institutional Trustee in
      writing.  Each Capital Security Certificate shall be dated the date of
      its authentication.  The terms and provisions of the Securities set
      forth in Annex I and the forms of Certificates set forth in Exhibits A-1
      and A-2 are part of the terms of this Declaration and to the extent applicable,
      the Institutional Trustee, the Delaware Trustee, the Administrators and the
      Sponsor, by their execution and delivery of this Declaration, expressly agree
      to
      such terms and provisions and to be bound thereby.  Capital Securities
      will be issued only in blocks having an aggregate liquidation amount of not
      less
      than $100,000.

     

    (b)           The
      Capital Securities are being offered and sold by the Trust pursuant to the
      Purchase Agreement, the Placement Agreement and the Capital Securities
      Subscription Agreement, as applicable, in definitive form, registered in the
      name of the Holder thereof, without coupons and with the Restricted Securities
      Legend.

     

    
      Section
        6.4.  Mutilated,
        Destroyed, Lost or Stolen
        Certificates.  If:  

    

     

    (a)           any
      mutilated Certificate should be surrendered to the Registrar, or if the
      Registrar shall receive evidence to its satisfaction of the destruction, loss
      or
      theft of any Certificate; and

     

    (b)           the
      related Holder shall deliver to the Registrar, the Administrators and the
      Institutional Trustee such security or indemnity as may be required by them
      to
      keep each of them harmless; then, in the absence of notice that such Certificate
      shall have been acquired by a bona fide purchaser, an Administrator on behalf
      of
      the Trust shall execute (and in the case of a Capital Security Certificate,
      the
      Institutional Trustee shall authenticate) and deliver to such Holder, in
      exchange for or in lieu of any such mutilated, destroyed, lost or stolen
      Certificate, a new Certificate of like denomination.  In connection
      with the issuance of any new Certificate under this Section 6.4, the Registrar
      or the Administrators may require such Holder to pay a sum sufficient to cover
      any tax or other governmental charge that may be imposed in connection
      therewith.  Any Certificate executed and delivered pursuant to this
      Section shall constitute conclusive evidence of an ownership interest in the
      relevant Securities, as if originally issued, whether or not the lost, stolen
      or
      destroyed Certificate shall be found at any time.

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

    Section
      6.5.  Temporary
      Certificates.  Until definitive Certificates are ready for
      delivery, the Administrators may prepare and execute on behalf of the Trust
      and,
      in the case of Capital Security Certificates, the Institutional Trustee shall
      authenticate, temporary Certificates.  Temporary Certificates shall be
      substantially in the form of definitive Certificates but may have variations
      that the Administrators consider appropriate for temporary
      Certificates.  Without unreasonable delay, the Administrators shall
      prepare and execute on behalf of the Trust and, in the case of the Capital
      Security Certificates, the Institutional Trustee shall authenticate definitive
      Certificates in exchange for temporary Certificates.

     

    Section
      6.6.  Cancellation.  The
      Administrators at any time may deliver Certificates evidencing Securities to
      the
      Institutional Trustee for cancellation.  The Registrar shall forward
      to the Institutional Trustee any Certificates evidencing Securities surrendered
      to it for registration of transfer, redemption or payment.  The
      Institutional Trustee shall promptly cancel all Certificates surrendered for
      registration of transfer, payment, replacement or cancellation and shall dispose
      of such canceled Certificates as the Administrators direct.  The
      Administrators may not issue new Certificates to replace Certificates evidencing
      Securities that have been paid or, except for Certificates surrendered for
      purposes of the transfer or exchange of the Securities evidenced thereby, that
      have been delivered to the Institutional Trustee for cancellation.

     

    Section
      6.7.  Rights
      of Holders; Waivers of Past Defaults.

     

    (a)           The
      legal title to the Trust Property is vested exclusively in the Institutional
      Trustee (in its capacity as such) in accordance with Section 2.5, and the
      Holders shall not have any right or title therein other than the undivided
      beneficial interest in the assets of the Trust conferred by their 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
      Securities shall be personal property giving only the rights specifically set
      forth therein and in this Declaration.  The Securities shall have no,
      and the issuance of the Securities shall not be subject to, preemptive or other
      similar rights and when issued and delivered to Holders against payment of
      the
      purchase price therefor, the Securities will be fully paid and nonassessable
      by
      the Trust.

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    (b)           For
      so long as any Capital Securities remain outstanding, if, upon an Indenture
      Event of Default pursuant to Section 5.01(b), 5.01(e) or 5.01(f) of the
      Indenture the Debenture Trustee fails or the holders of not less than 25% in
      principal amount of the outstanding Debentures fail to declare the principal
      of
      all of the Debentures to be immediately due and payable, the Holders of not
      less
      than a Majority in liquidation amount of the Capital Securities then outstanding
      shall have the right to make such declaration by a notice in writing to the
      Institutional Trustee, the Sponsor and the Debenture Trustee.

     

    (c)           At
      any time after the acceleration of maturity of the Debentures has been made
      and
      before a judgment or decree for payment of the money due has been obtained
      by
      the Debenture Trustee as provided in the Indenture, if the Institutional
      Trustee, subject to the provisions hereof, fails to annul any such acceleration
      and waive such default, the Holders of not less than a Majority in liquidation
      amount of the Capital Securities, by written notice to the Institutional
      Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such
      acceleration and its consequences if:

     

    (i)           the
      Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to
      pay

     

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

     

    (B)           any
      accrued Deferred Interest on all of the Debentures;

     

    (C)           all
      payments on any Debentures that have become due otherwise than by such
      acceleration and interest and Deferred Interest thereon at the rate borne by
      the
      Debentures; and

     

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

     

    (ii)           all
      Events of Default with respect to the Debentures, other than the non-payment
      of
      the principal of or premium, if any on the Debentures that has become due solely
      by such acceleration, have been cured or waived as provided in Section 5.07
      of
      the Indenture.

     

    (d)           The
      Holders of not less than a Majority in liquidation amount of the Capital
      Securities may, on behalf of the Holders of all the Capital Securities, waive
      any past Default or Event of Default, except a Default or Event of Default
      in
      the payment of principal, 

    
      
        
        

      

      
        33

        
          

        

      

      
        
        
premium,
        if any, or interest (unless such Default or Event of Default has been cured
        and
        a sum sufficient to pay all matured installments of interest and principal
        due
        otherwise than by acceleration has been deposited with the Debenture Trustee)
        or
        a default or 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 Debenture.  No such rescission shall affect any
        subsequent default or impair any right consequent thereon.

    

     

    (e)           Upon
      receipt by the Institutional Trustee of written notice declaring such an
      acceleration, or rescission and annulment thereof, by Holders of any part of
      the
      Capital Securities, a record date shall be established for determining Holders
      of outstanding Capital Securities entitled to join in such notice, which record
      date shall be at the close of business on the day the Institutional 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
      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 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
      6.7.

     

    (f)           Except
      as otherwise provided in this Section 6.7, the Holders of not less than a
      Majority in liquidation amount of the Capital Securities may, on behalf of
      the
      Holders of all the Capital Securities, waive any past Default or Event of
      Default and its consequences.  Upon such waiver, any such Default or
      Event of Default shall cease to exist, and any Default or Event of Default
      arising therefrom shall be deemed to have been cured, for every purpose of
      this
      Declaration, but no such waiver shall extend to any subsequent or other Default
      or Event of Default or impair any right consequent thereon.

     

                         
             ARTICLE
      VII                                

     

     

    DISSOLUTION
      AND TERMINATION OF TRUST

     

    Section
      7.1.  Dissolution
      and Termination of Trust.  (a)   The Trust shall
      dissolve on the first to occur of : 

     

    (i)           unless
      earlier dissolved, on October 1, 2042, the expiration of the term of the
      Trust;

     

    (ii)           a
      Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
      Issuer;

     

    (iii)           (other
      than in connection with a merger, consolidation or similar transaction not
      prohibited by the Indenture, this Declaration or the Guarantee, as the case
      may
      be) the filing of a certificate of dissolution or its equivalent with respect
      to
      the Sponsor or upon the revocation of the charter of the Sponsor and the
      expiration of 90 days after the date of revocation without a reinstatement
      thereof;

     

    (iv)           the
      distribution of the Debentures to the Holders of the Securities, upon exercise
      of the right of the Holders of all of the outstanding Common Securities to
      dissolve the Trust as provided in Annex I hereto;

     

    (v)           the
      entry of a decree of judicial dissolution of any Holder of the Common
      Securities, the Sponsor, the Trust or the Debenture Issuer;

     

    (vi)           when
      all of the Securities shall have been called for redemption and the amounts
      necessary for redemption thereof shall have been paid to the Holders in
      accordance with the terms of the Securities; or

     

    (vii)           before
      the issuance of any Securities, with the consent of all of the Trustees and
      the
      Sponsor.

     

    (b)           As
      soon as is practicable after the occurrence of an event referred to in Section
      7.1(a), and after satisfaction of liabilities to creditors of the Trust as
      required by applicable law, including Section 3808 of the Statutory Trust Act,
      and subject to the terms set forth in Annex I, the Institutional Trustee shall
      terminate the Trust by filing a certificate of cancellation with the Secretary
      of State of the State of Delaware.

     

    (c)           The
      provisions of Section 2.9 and Article IX shall survive the termination of the
      Trust.

     

    
      
        
        

      

      
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      ARTICLE
      VIII                                


     

    TRANSFER
      OF INTERESTS

     

    Section
      8.1.  General.  (a)          
      Where a Holder of Capital Securities delivers to the Registrar in accordance
      with this Declaration a request to register a transfer of such Holder's Capital
      Securities or to exchange them for an equal aggregate liquidation amount of
      Capital Securities represented by different Certificates, the Registrar shall
      register the transfer or make the exchange when the requirements specified
      in
      this Article VIII for such transfer or exchange are met. To facilitate
      registrations of transfers and exchanges, the Trust shall execute and the
      Institutional Trustee shall authenticate Capital Security Certificates at the
      Registrar's request.

     

    (b)           Upon
      issuance of the Common Securities, the Sponsor shall acquire and retain
      beneficial and record ownership of the Common Securities and, for so long as
      the
      Securities remain outstanding, the Sponsor shall maintain 100% ownership of
      the
      Common Securities; provided, however, that any permitted successor
      of the Sponsor under the Indenture that is a U.S. Person may succeed to the
      Sponsor’s ownership of the Common Securities.

     

    (c)           Capital
      Securities may only be transferred, in whole or in part, in accordance with
      the
      terms and conditions set forth in this Declaration and in the terms of the
      Capital Securities.  To the fullest extent permitted by applicable
      law, any transfer or purported transfer of any Security not made in accordance
      with this Declaration shall be null and void and will be deemed to be of no
      legal effect whatsoever and any such purported transferee shall be deemed not
      to
      be the Holder of such Capital Securities for any purpose, including, but not
      limited to, the receipt of Distributions on such Capital Securities, and such
      transferee shall be deemed to have no interest whatsoever in such Capital
      Securities.

     

    (d)           The
      Registrar shall provide in the Securities Register for the registration of
      Securities and of transfers of Securities, which will be effected without charge
      but only upon payment (with such indemnity as the Registrar may reasonably
      require) in respect of any tax or other governmental charges that may be imposed
      in relation to it. Upon its receipt of the documents required under this Section
      8.1(d) for registration of transfer of any Securities, the Registrar shall
      register in the Securities Register, in the name of the designated transferee
      or
      transferees, the Securities being transferred and thereupon, for all purposes
      of
      this Declaration, such transfer shall be effective and such transferee or
      transferees shall be, and such transferor shall no longer be, the Holder of
      the
      transferred Securities. Upon the registration of transfer of a Security pursuant
      to the terms of this Declaration in the name of the new Holder thereof, such
      Security shall constitute the same Security as the Security so transferred
      and
      shall be entitled to the same benefits under this Declaration as the Security
      so
      transferred. The Registrar shall, and is authorized to, record and register
      in
      the Securities Register the transfer of a Security upon the Registrar's receipt
      of originals or copies (which may be by facsimile or other form of electronic
      transmission) of (i) a written instrument of transfer in form reasonably
      satisfactory to the Registrar duly executed by the Holder or such Holder's
      attorney duly authorized in writing, and (ii) if such Security is being
      transferred other than in accordance with Section 8.4, a certificate
      substantially in the form set forth as Exhibit B or C, as applicable, hereto,
      executed by the transferor or transferee, as applicable; thereupon, the
      Registrar is authorized to confirm in writing to the transferee and, if
      requested, to the transferor of such Security that such transfer has been
      registered in the Securities Register and that such transferee is the Holder
      of
      such Security. The Certificate evidencing the Security so transferred, duly
      endorsed by the transferor, shall be surrendered to the Registrar at the time
      the transfer conditions specified in the immediately preceding sentence are
      satisfied or within five (5) Business Days after the Registrar has registered
      the transfer of such Security on the Securities Register, and promptly after
      such surrender, an Administrator on behalf of the Trust shall execute and,
      in
      the case of a Capital Security Certificate, the Institutional Trustee shall,
      and
      is authorized to, authenticate a Certificate in the name of the transferee
      as
      the new Holder of the Security evidenced thereby. Until the Certificate
      evidencing the Security so transferred is surrendered to the Registrar, such
      Security may not be transferred by such new Holder. Each Certificate surrendered
      in connection with a registration of transfer shall be canceled by the
      Institutional Trustee pursuant to Section 6.6. A transferee of a Security shall
      be entitled to the rights and subject to the obligations of a Holder hereunder
      upon the registration of such transfer in the Securities Register. Each such
      transferee shall be deemed to have agreed to be bound by this
      Declaration.

     

    
      
        
        

      

      
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    (e)           Neither
      the Trust nor the Registrar shall be required (i) to issue Certificates
      representing Securities or register the transfer of or exchange any Securities,
      during a period beginning at the opening of business 15 days before the day
      of
      any selection of Securities for redemption and ending at the close of business
      on the earliest date on which the relevant notice of redemption is deemed to
      have been given to all Holders of the Securities to be redeemed, or (ii) to
      register the transfer or exchange of any Security so selected for redemption
      in
      whole or in part, except the unredeemed portion of any Security being redeemed
      in part.

     

    Section
      8.2.  Transfer
      Procedures and Restrictions.  

     

    (a)           The
      Certificates evidencing Capital Securities shall bear the Restricted Securities
      Legend (as defined below), which shall not be removed unless there is delivered
      to the Trust such satisfactory evidence, which may include an opinion of counsel
      reasonably acceptable to the Trustee, as may be reasonably required by the
      Trust, that neither the Restricted Securities Legend nor the restrictions on
      transfer set forth therein are required to ensure that transfers thereof comply
      with the provisions of the Securities Act or to ensure that such Securities
      are
      not “restricted” within the meaning of Rule 144 under the Securities
      Act.  Upon provision of such satisfactory evidence, the Institutional
      Trustee, at the written direction of the Trust, shall authenticate and deliver
      Capital Securities Certificates that do not bear the Restricted Securities
      Legend in exchange for the Capital Securities Certificates bearing the
      Restricted Securities Legend.

     

    (b)           Without
      the written consent of the Sponsor, Capital Securities may only be transferred:
      (i) to a QIB if the instrument of transfer is accompanied by a certificate
      of
      the transferor substantially in the form set forth as Exhibit C hereto; or
      (ii)
      otherwise than to a QIB if the instrument of transfer is accompanied by a
      certificate of the transferee substantially in the form set forth as Exhibit
      B
      hereto.  Each certificate furnished pursuant to this Section 8.2(b)
      may be an original or a copy (which may be furnished by facsimile or other
      form
      of electronic transmission).

     

    (c)           Except
      as permitted by Section 8.2(a), each Certificate evidencing a Capital Security
      shall bear a legend (the “Restricted Securities Legend”) in substantially the
      following form:

     

    THIS
      SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
      (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
      SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR
      PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
      ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
      UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
      REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY
      ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
      ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER
      THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER 

    
      
        
        

      

      
        36

        
          

        

      

      
        
        
REASONABLY
        BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT
        PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
        BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
        ON
        RULE 144A, (C) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
        OF
        THE SECURITIES ACT TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF
        SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
        THAT
        IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
        AN
“ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
        OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
        SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
        REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE DEBENTURE
        ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
        PURSUANT TO CLAUSES (C) OR (D) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION
        OF
        COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
        IN
        ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF
        WHICH
        MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST.  THE HOLDER OF
        THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
        FOREGOING RESTRICTIONS.

    

     

    THE
      HOLDER OF THIS SECURITY BY ITS
      ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN
      HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
      COMPLIANCE WITH THE SECURITIES ACT.

     

    THE
      HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF 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 SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
      IS
      ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
      PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1, 84-14, THE
      NON-FIDUCIARY SERVICE PROVIDER EXEMPTION UNDER SECTION 408(B)(17) OF ERISA
      OR
      ANOTHER APPLICABLE EXEMPTION.

     

    
      
        
        

      

      
        37

        
          

        

      

      
        
        

      

    

    IN
      CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
      REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
      BE
      REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
      TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

    
       

    

    THIS
      SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
      LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
      THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A
      LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF
      NO
      LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT
      TO BE
      THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO,
      THE
      RECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL
      BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.

     

    (d)           Capital
      Securities may only be transferred in minimum blocks of $100,000 aggregate
      liquidation amount (100 Capital Securities) and multiples of $1,000 in excess
      thereof.  Any attempted transfer of Capital Securities in a block
      having an aggregate liquidation amount of less than $100,000 shall be deemed
      to
      be void and of no legal effect whatsoever.  Any such purported
      transferee shall be deemed not to be a Holder of such Capital Securities for
      any
      purpose, including, but not limited to, the receipt of Distributions on such
      Capital Securities, and such purported transferee shall be deemed to have no
      interest whatsoever in such Capital Securities.

     

    
      
        
        

      

      
        38

        
          

        

      

      
        
        

      

    

    Section
      8.3.  Deemed
      Security Holders.  The Trust, the Administrators, the Trustees,
      the Paying Agent, the Transfer Agent or the Registrar may treat the Person
      in
      whose name any Security shall be registered on the Securities Register of the
      Trust as the sole Holder and owner of such Security for purposes of receiving
      Distributions and for all other purposes whatsoever and, accordingly, shall
      not
      be bound to recognize any equitable or other claim to or interest in such
      Security on the part of any other Person, whether or not the Trust, the
      Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
      Registrar shall have actual or other notice thereof.

     

    Section
      8.4.  Transfer
      of Initial Securities. Notwithstanding the foregoing provisions of this
      Article VIII or any other provision of this Declaration (including all Annexes
      and Exhibits hereto) to the contrary, any or all of the Capital Securities
      initially issued to the Initial Purchasers (the "Initial Securities") may be
      transferred by each Initial Purchaser to any transferee selected by it that
      meets the parameters specified below and, upon delivery to the Registrar, of
      originals or copies (which may be by facsimile or other form of electronic
      transmission) of a written instrument of transfer in form reasonably
      satisfactory to the Registrar duly executed by such Initial Purchaser or its
      attorney duly authorized in writing (it being understood that no signature
      guarantee shall be required), then the Registrar shall, and is authorized to,
      record and register on the Securities Register the transfer of such Initial
      Securities to such transferee; thereupon, the Registrar is authorized to confirm
      in writing to the transferee and, if requested, to the transferor of such
      Initial Securities that such transfer has been registered in the Securities
      Register and that such transferee is the Holder of such Initial Securities;
      provided,however, that each
      Initial Purchaser, by its acceptance thereof, agrees that it may not transfer
      any Initial Securities to any transferee that is not a permitted transferee
      as
      provided herein and in the legend attached to the Certificate representing
      any
      Capital Security.  The Certificate evidencing the Initial Securities
      to be transferred, duly endorsed by the applicable Initial Purchaser, shall
      be
      surrendered to the Registrar at the time the transfer conditions specified
      in
      the immediately preceding sentence are satisfied or within five (5) Business
      Days after the Registrar has registered the transfer of such Initial Securities
      in the Securities Register, and promptly after such surrender, an Administrator
      on behalf of the Trust shall execute and, in the case of a Capital Security
      Certificate, the Institutional Trustee shall, and is authorized to, authenticate
      a Certificate in the name of the transferee as the new Holder of the Initial
      Securities evidenced thereby. Until the Certificate evidencing the Initial
      Securities so transferred is surrendered to the Registrar, such Initial
      Securities may not be transferred by such new Holder. No other conditions,
      restrictions or other provisions of this Declaration or any other document
      shall
      apply to a transfer of Initial Securities by any Initial Purchaser.

     

                            
      ARTICLE
      IX                                


     

    LIMITATION
      OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS

     

    Section
      9.1.  Liability.  (a)          Except
      as expressly set forth in this Declaration, the Guarantee and the terms of
      the
      Securities, the Sponsor shall not be:

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

    (i)           personally
      liable for the return of any portion of the capital contributions (or any return
      thereon) of the Holders of the Securities which shall be made solely from assets
      of the Trust; and

     

    (ii)           required
      to pay to the Trust or to any Holder of the Securities any deficit upon
      dissolution of the Trust or otherwise.

     

    (b)           The
      Holder of the Common Securities shall be liable for all of the debts and
      obligations of the Trust (other than with respect to the Securities) to the
      extent not satisfied out of the Trust’s assets.

     

    (c)           Pursuant
      to § 3803(a) of the Statutory Trust Act, the Holders of the Securities 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, except as otherwise specifically set forth
      herein.

     

    Section
      9.2.  Exculpation.  (a)          No
      Indemnified Person shall be liable, responsible or accountable in damages or
      otherwise to the Trust or any Covered Person for any loss, damage or claim
      incurred by reason of any act or omission performed or omitted by such
      Indemnified Person in good faith on behalf of the Trust and in a manner such
      Indemnified Person reasonably believed to be within the scope of the authority
      conferred on such Indemnified Person by this Declaration or by law, except
      that
      an Indemnified Person (other than an Administrator) shall be liable for any
      such
      loss, damage or claim incurred by reason of such Indemnified Person’s
      negligence or willful misconduct with respect to such acts or omissions and
      except that an Administrator shall be liable for any such loss, damage or claim
      incurred by reason of such Administrator’s gross negligence or willful
      misconduct with respect to such acts or omissions.

     

    (b)           An
      Indemnified Person shall be fully protected in relying in good faith upon the
      records of the Trust and upon such information, opinions, reports or statements
      presented to the Trust by any Person as to matters the Indemnified Person
      reasonably believes are within such other Person’s professional or expert
      competence and, if selected by such Indemnified Person, has been selected by
      such Indemnified Person with reasonable care by or on behalf of the Trust,
      including information, opinions, reports or statements as to the value and
      amount of the assets, liabilities, profits, losses or any other facts pertinent
      to the existence and amount of assets from which Distributions to Holders of
      Securities might properly be paid.

     

    Section
      9.3.  Fiduciary
      Duty.  (a)         To
      the extent that, at law or in equity, an Indemnified Person has duties
      (including fiduciary duties) and liabilities relating thereto to the Trust
      or to
      any other Covered Person, an Indemnified Person acting under this Declaration
      shall not be liable to the Trust or to any other Covered Person for its good
      faith reliance on the provisions of this Declaration.  The provisions
      of this Declaration, to the extent that they restrict the duties and liabilities
      of an Indemnified Person otherwise existing at law or in equity (other than
      the
      duties imposed on the Institutional Trustee under the Trust Indenture Act),
      are
      agreed by the parties hereto to replace such other duties and liabilities of
      the
      Indemnified Person.

     

    (b)           Whenever
      in this Declaration an Indemnified Person is permitted or required to make
      a
      decision:

     

    (i)           in
      its “discretion” or under a grant of similar authority, the Indemnified Person
      shall be entitled to consider such interests and factors as it desires,
      including its own interests, and shall have no duty or obligation to give any
      consideration to any interest of or factors affecting the Trust or any other
      Person; or

     

    (ii)           in
      its “good faith” or under another express standard, the Indemnified Person shall
      act under such express standard and shall not be subject to any other or
      different standard imposed by this Declaration or by applicable
      law.

     

    
      
        
        

      

      
        40

        
          

        

      

      
        
        

      

    

    Section
      9.4.  Indemnification.  (a)
      (i)  The Sponsor shall indemnify, to the fullest extent permitted by
      law, any Indemnified Person who was or is a party or is threatened to be made
      a
      party to any threatened, pending or completed action, suit or proceeding,
      whether civil, criminal, administrative or investigative (other than an action
      by or in the right of the Trust) arising out of or in connection with the
      acceptance or administration of this Declaration, the Trust or the transactions
      contemplated hereby by reason of the fact that such Person is or was an
      Indemnified Person against expenses (including reasonable attorneys’ fees and
      expenses), judgments, fines and amounts paid in settlement actually and
      reasonably incurred by such Person in connection with such action, suit or
      proceeding if such Person acted in good faith and in a manner
      such Person reasonably believed to be in or not opposed to the best interests
      of
      the Trust, and, with respect to any criminal action or proceeding, had no
      reasonable cause to believe such conduct was unlawful.  The
      termination of any action, suit or proceeding by judgment, order, settlement,
      conviction, or upon a plea of nolo contendere or its equivalent, shall not,
      of
      itself, create a presumption that the Indemnified Person did not act in good
      faith and in a manner which such Person reasonably believed to be in or not
      opposed to the best interests of the Trust, and, with respect to any criminal
      action or proceeding, had reasonable cause to believe that such conduct was
      unlawful.

     

    (ii)           The
      Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified
      Person who was or is a party or is threatened to be made a party to any
      threatened, pending or completed action or suit by or in the right of the Trust
      to procure a judgment in its favor arising out of or in connection with the
      acceptance or administration of this Declaration, the Trust, or the transactions
      contemplated hereby by reason of the fact that such Person is or was an
      Indemnified Person against expenses (including attorneys’ fees and expenses)
      actually and reasonably incurred by such Person in connection with the defense
      or settlement of such action or suit if such Person acted in good faith and
      in a
      manner such Person reasonably believed to be in or not opposed to the best
      interests of the Trust and except that no such indemnification shall be made
      in
      respect of any claim, issue or matter as to which such Indemnified Person shall
      have been adjudged to be liable to the Trust unless and only to the extent
      that
      the Court of Chancery of Delaware or the court in which such action or suit
      was
      brought shall determine upon application that, despite the adjudication of
      liability but in view of all the circumstances of the case, such Person is
      fairly and reasonably entitled to indemnity for such expenses which such Court
      of Chancery or such other court shall deem proper.

     

    (iii)           To
      the extent that an Indemnified Person shall be successful on the merits or
      otherwise (including dismissal of an action without prejudice or the settlement
      of an action without admission of liability) in defense of any action, suit
      or
      proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a), or
      in
      defense of any claim, issue or matter therein, such Person shall be indemnified,
      to the fullest extent permitted by law, against expenses (including attorneys’
fees and expenses) actually and reasonably incurred by such Person in connection
      therewith.

     

    (iv)           Any
      indemnification of an Administrator under paragraphs (i) and (ii) of this
      Section 9.4(a) (unless ordered by a court) shall be made by the Sponsor only
      as
      authorized in the specific case upon a determination that indemnification of
      the
      Indemnified Person is proper in the circumstances because such Person has met
      the applicable standard of conduct set forth in paragraphs (i) and
      (ii).  Such determination shall be made (A) by the Administrators by a
      majority vote of a Quorum consisting of such Administrators who were not parties
      to such action, suit or proceeding, (B) if such a Quorum is not obtainable,
      or,
      even if obtainable, if
      a Quorum
      of disinterested Administrators so directs, by independent legal counsel in
      a
      written opinion, or (C) by the Common Security Holder of the Trust.

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

    (v)           To
      the fullest extent permitted by law, expenses (including reasonable attorneys’
fees and expenses) incurred by an Indemnified Person in defending a civil,
      criminal, administrative or investigative action, suit or proceeding referred
      to
      in paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Sponsor
      in advance of the final disposition of such action, suit or proceeding upon
      receipt of an undertaking by or on behalf of such Indemnified Person to repay
      such amount if it shall ultimately be determined that such Person is not
      entitled to be indemnified by the Sponsor as authorized in this Section
      9.4(a).  Notwithstanding the foregoing, no advance shall be made by
      the Sponsor if a determination is reasonably and promptly made (1) in the case
      of a Company Indemnified Person (A) by the Administrators by a majority vote
      of
      a Quorum of disinterested Administrators, (B) if such a Quorum is not
      obtainable, or, even if obtainable, if a Quorum of disinterested Administrators
      so directs, by independent legal counsel in a written opinion or (C) by the
      Common Security Holder of the Trust, that, based upon the facts known to the
      Administrators, counsel or the Common Security Holder at the time such
      determination is made, such Indemnified Person acted in bad faith or in a manner
      that such Person either believed to be opposed to or did not believe to be
      in
      the best interests of the Trust, or, with respect to any criminal proceeding,
      that such Indemnified Person believed or had reasonable cause to believe such
      conduct was unlawful, or (2) in the case of a Fiduciary Indemnified Person,
      by
      independent legal counsel in a written opinion that, based upon the facts known
      to the counsel at the time such determination is made, such Indemnified Person
      acted in bad faith or in a manner that such Indemnified Person either believed
      to be opposed to or did not believe to be in the best interests of the Trust,
      or, with respect to any criminal proceeding, that such Indemnified Person
      believed or had reasonable cause to believe such conduct was
      unlawful.  In no event shall any advance be made (i) to a Company
      Indemnified Person in instances where the Administrators, independent legal
      counsel or the Common Security Holder reasonably determine that such Person
      deliberately breached such Person’s duty to the Trust or its Common or Capital
      Security Holders or (ii) to a Fiduciary Indemnified Person in instances where
      independent legal counsel promptly and reasonably determines in a written
      opinion that such Person deliberately breached such Person’s duty to the Trust
      or its Common or Capital Security Holders.

     

    (b)           The
      Sponsor shall indemnify, to the fullest extent permitted by applicable law,
      each
      Indemnified Person from and against any and all loss, damage, liability, tax
      (other than taxes based on the income of such Indemnified Person), penalty,
      expense or claim of any kind or nature whatsoever incurred by such Indemnified
      Person arising out of or in connection with or by reason of the creation,
      administration or termination of the Trust, or any act or omission of such
      Indemnified Person in good faith on behalf of the Trust and in a manner such
      Indemnified Person reasonably believed to be within the scope of authority
      conferred on such Indemnified Person by this Declaration, except that no
      Indemnified Person shall be entitled to be indemnified in respect of any loss,
      damage, liability, tax, penalty, expense or claim incurred by such Indemnified
      Person by reason of negligence or willful misconduct with respect to such acts
      or omissions.

    
      
        
        

      

      
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    (c)           The
      indemnification and advancement of expenses provided by, or granted pursuant
      to,
      the other paragraphs of this Section 9.4 shall not be deemed exclusive of any
      other rights to which those seeking indemnification and advancement of expenses
      may be entitled under any agreement, vote of stockholders or disinterested
      directors of the Sponsor or Capital Security Holders of the Trust or otherwise,
      both as to action in such Person’s official capacity and as to action in another
      capacity while holding such office.  All rights to indemnification
      under this Section 9.4 shall be deemed to be provided by a contract between
      the
      Sponsor and each Indemnified Person who serves in such capacity at any time
      while this Section 9.4 is in effect.  Any repeal or modification of
      this Section 9.4 shall not affect any rights or obligations then
      existing.

     

    (d)           The
      Sponsor or the Trust may purchase and maintain insurance on behalf of any Person
      who is or was an Indemnified Person against any liability asserted against
      such
      Person and incurred by such Person in any such capacity, or arising out of
      such
      Person’s status as such, whether or not the Sponsor would have the power to
      indemnify such Person against such liability under the provisions of this
      Section 9.4.

     

    (e)           For
      purposes of this Section 9.4, references to “the Trust” shall include, in
      addition to the resulting or surviving entity, any constituent entity (including
      any constituent of a constituent) absorbed in a consolidation or merger, so
      that
      any Person who is or was a director, trustee, officer or employee of such
      constituent entity, or is or was serving at the request of such constituent
      entity as a director, trustee, officer, employee or agent of another entity,
      shall stand in the same position under the provisions of this Section 9.4 with
      respect to the resulting or surviving entity as such Person would have with
      respect to such constituent entity if its separate existence had
      continued.

     

    (f)           The
      indemnification and advancement of expenses provided by, or granted pursuant
      to,
      this Section 9.4 shall, unless otherwise provided when authorized or ratified,
      continue as to a Person who has ceased to be an Indemnified Person and shall
      inure to the benefit of the heirs, executors and administrators of such a
      Person.

     

    (g)           The
      provisions of this Section 9.4 shall survive the termination of this Declaration
      or the earlier resignation or removal of the Institutional
      Trustee.  The obligations of the Sponsor under this Section 9.4 to
      compensate and indemnify the Trustees and to pay or reimburse the Trustees
      for
      expenses, disbursements and advances shall constitute additional indebtedness
      hereunder.  Such additional indebtedness shall be secured by a lien
      prior to that of the Securities upon all property and funds held or collected
      by
      the Trustees as such, except funds held in trust for the benefit of the Holders
      of particular Capital Securities, provided, that the Sponsor is the
      Holder of the Common Securities.

     

    
      
        
        

      

      
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    Section
      9.5.  Outside
      Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the
      Institutional Trustee (subject to Section 4.3(c)) may engage in or possess
      an
      interest in other business ventures of any nature or description, independently
      or with others, similar or dissimilar to the business of the Trust, and the
      Trust and the Holders of Securities shall have no rights by virtue of this
      Declaration in and to such independent ventures or the income or profits derived
      therefrom, and the pursuit of any such venture, even if competitive with the
      business of the Trust, shall not be deemed wrongful or improper.  None
      of any Covered Person, the Sponsor, the Delaware Trustee or the Institutional
      Trustee shall be obligated to present any particular investment or other
      opportunity to the Trust even if such opportunity is of a character that, if
      presented to the Trust, could be taken by the Trust, and any Covered Person,
      the
      Sponsor, the Delaware Trustee and the Institutional Trustee shall have the
      right
      to take for its own account (individually or as a partner or fiduciary) or
      to
      recommend to others any such particular investment or other
      opportunity.  Any Covered Person, the Delaware Trustee and the
      Institutional Trustee may engage or be interested in any financial or other
      transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
      depositary for, trustee or agent for, or act on any committee or body of holders
      of, securities or other obligations of the Sponsor or its
      Affiliates.

     

    Section
      9.6.  Compensation;
      Fee.  (a)         The
      Sponsor agrees:

     

    (i)           to
      pay to the Trustees from time to time such compensation for all services
      rendered by them hereunder as the parties shall agree in writing 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); and

     

    (ii)           except
      as otherwise expressly provided herein, to reimburse the Trustees upon request
      for all reasonable, documented expenses, disbursements and advances incurred
      or
      made by the Trustees in accordance with any provision of this Declaration
      (including the reasonable compensation and the expenses and disbursements of
      their respective agents and counsel), except any such expense, disbursement
      or
      advance attributable to their negligence or willful misconduct.

     

    (b)           The
      provisions of this Section 9.6 shall survive the dissolution of the Trust
      and the termination of this Declaration and the removal or resignation of any
      Trustee.

     

                                  ARTICLE
      X                                

     

     

    ACCOUNTING

     

    
      
        
        

      

      
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    Section
      10.1.  Fiscal
      Year.  The fiscal year (the “Fiscal Year”) of the Trust shall be
      the calendar year, or such other year as is required by the Code.

     

    Section
      10.2.  Certain
      Accounting Matters.  

     

    (a)           At
      all times during the existence of the Trust, the Administrators 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
      Sponsor shall cause the Administrators to deliver to each Holder of the
      Securities: (i) if the Sponsor or any of its Subsidiaries is not then (x)
      subject to Section 13 or 15(d) of the Exchange Act or (y) exempt from reporting
      pursuant to Rule 12g3-2(b) thereunder, the information required by Rule
      144A(d)(4) under the Securities Act, (ii) if the Sponsor is not then required
      to
      file Form FR Y-9C, the audited financial statements (or, if no audited financial
      statements are prepared, the unaudited financial statements) of the Sponsor
      and
      any Subsidiaries within 90 days after the end of the Fiscal Year, and
      (iii) within 90 days after the end of each Fiscal Year of the Trust, annual
      financial statements of the Trust, including a balance sheet of the Trust as
      of
      the end of such Fiscal Year, and the statements of income or loss for the Fiscal
      Year then ended, that are prepared at the principal office of the Trust in
      the
      United States, as defined for purposes of Treasury Regulations section
      301.7701-7.

     

    (c)           The
      Administrators shall cause to be duly prepared and delivered to each of the
      Holders of Securities Form 1099 or such other annual United States federal
      income tax information statement required by the Code, containing such
      information with regard to the Securities held by each Holder as is required
      by
      the Code and the Treasury Regulations.  Notwithstanding any right
      under the Code to deliver any such statement at a later date, the Administrators
      shall endeavor to deliver all such statements within 30 days after the end
      of
      each Fiscal Year of the Trust.

     

    (d)           The
      Administrators shall cause to be duly prepared in the United States, as defined
      for purposes of Treasury Regulations section 301.7701-7, and filed an annual
      United States federal income tax return on a Form 1041 or such other form
      required by United States federal income tax law, and any other annual income
      tax returns required to be filed by the Administrators on behalf of the Trust
      with any state or local taxing authority.

     

    (e)           So
      long as the only Holder or beneficial owner of the Capital Securities is an
      entity that holds a pool of trust preferred securities, debt securities and/or
      similar securities or a trustee thereof, the Administrators will cause the
      Sponsor’s reports on Form FR Y-9C to be delivered to the Holder promptly
      following their filing with the Federal Reserve.

     

    
      
        
        

      

      
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    Section
      10.3.  Banking.  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 Debentures held by the Institutional Trustee shall
      be
      made directly to the Property Account and no other funds of the Trust shall
      be
      deposited in the Property Account.  The sole signatories for such
      accounts (including the Property Account) shall be designated by the
      Institutional Trustee.

     

    Section
      10.4.  Withholding.  The
      Institutional Trustee or any Paying Agent and the Administrators shall comply
      with all withholding requirements under United States federal, state and local
      law.  The Institutional Trustee or any Paying Agent shall request, and
      each Holder shall provide to the Institutional Trustee or any Paying Agent,
      such
      forms or certificates as are necessary to establish an exemption from
      withholding with respect to the Holder, and any representations and forms as
      shall reasonably be requested by the Institutional Trustee or any Paying Agent
      to assist it in determining the extent of, and in fulfilling, its withholding
      obligations.  The Administrators shall file required forms with
      applicable jurisdictions and, unless an exemption from withholding is properly
      established by a Holder, shall remit amounts withheld with respect to the Holder
      to applicable jurisdictions.  To the extent that the Institutional
      Trustee or any Paying Agent is required to withhold and pay over any amounts
      to
      any authority with respect to distributions or allocations to any Holder, the
      amount withheld shall be deemed to be a Distribution to the Holder in the amount
      of the withholding.  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 Institutional Trustee or any Paying Agent
      may reduce subsequent Distributions by the amount of such
      withholding.

     

                                   
      ARTICLE
      XI                                

     

     

    AMENDMENTS
      AND MEETINGS

     

    Section
      11.1.  Amendments.  (a)  Except
      as otherwise provided in this Declaration or by any applicable terms of the
      Securities, this Declaration may only be amended by a written instrument
      approved and executed by

     

    (i)           the
      Institutional Trustee,

     

    (ii)           if
      the amendment affects the rights, powers, duties, obligations or immunities
      of
      the Delaware Trustee, the Delaware Trustee,

     

    (iii)           if
      the amendment affects the rights, powers, duties, obligations or immunities
      of
      the Administrators, the Administrators, and

     

    (iv)           the
      Holders of a Majority in liquidation amount of the Common
      Securities.

     

    (b)           Notwithstanding
      any other provision of this Article XI, no amendment shall be made, and any
      such
      purported amendment shall be void and ineffective:

     

    (i)           unless
      the Institutional Trustee shall have first received

     

    (A)           an
      Officers’ Certificate from each of the Trust and the Sponsor that such amendment
      is permitted by, and conforms to, the terms of this Declaration (including
      the
      terms of the Securities); and

     

    
      
        
        

      

      
        46

        
          

        

      

      
        
        

      

    

    (B)           an
      opinion of counsel (who may be counsel to the Sponsor or the Trust) that such
      amendment is permitted by, and conforms to, the terms of this Declaration
      (including the terms of the Securities) and that all conditions precedent to
      the
      execution and delivery of such amendment have been satisfied; or

     

    (ii)           if
      the result of such amendment would be to

     

    (A)           cause
      the Trust to cease to be classified for purposes of United States federal income
      taxation as a grantor trust;

     

    (B)           reduce
      or otherwise adversely affect the powers of the Institutional Trustee in
      contravention of the Trust Indenture Act;

     

    (C)           cause
      the Trust to be deemed to be an Investment Company required to be registered
      under the Investment Company Act; or

     

    (D)           cause
      the Debenture Issuer to be unable to treat an amount equal to the Liquidation
      Amount of the Debentures as “Tier 1 Capital” (or its equivalent) for purposes of
      the capital adequacy guidelines of the Federal Reserve (or any successor
      regulatory authority with jurisdiction over bank holding
      companies).

     

    (c)           Except
      as provided in Section 11.1(d), (e) or (g), no amendment shall be made, and
      any such purported amendment shall be void and ineffective, unless the Holders
      of a Majority in liquidation amount of the Capital Securities shall have
      consented to such amendment.

     

    (d)           In
      addition to and notwithstanding any other provision in this Declaration, without
      the consent of each affected Holder, this Declaration may not be amended to
      (i)
      change the amount or timing of any Distribution on the Securities or otherwise
      adversely affect the amount of any Distribution required to be made in respect
      of the Securities as of a specified date or (ii) restrict the right of a Holder
      to institute suit for the enforcement of any such payment on or after such
      date.

     

    (e)           Sections
      9.1(b) and 9.1(c) and this Section 11.1 shall not be amended without the consent
      of all of the Holders of the Securities.

     

    (f)           The
      rights of the Holders of the Capital Securities and Common Securities, as
      applicable, under Article IV to increase or decrease the number of, and appoint
      and remove, Trustees shall not be amended without the consent of the Holders
      of
      a Majority in liquidation amount of the Capital Securities or Common Securities,
      as applicable.

     

    (g)           This
      Declaration may be amended by the Institutional Trustee and the Holders of
      a
      Majority in liquidation amount of the Common Securities without the consent
      of
      the Holders of the Capital Securities to:

     

    
      
        
        

      

      
        47

        
          

        

      

      
        
        

      

    

    (i)           cure
      any ambiguity;

     

    (ii)           correct
      or supplement any provision in this Declaration that may be defective or
      inconsistent with any other provision of this Declaration;

     

    (iii)           add
      to the covenants, restrictions or obligations of the Sponsor; or

     

    (iv)           modify,
      eliminate or add to any provision of this Declaration to such extent as may
      be
      necessary or desirable, including, without limitation, to ensure that the Trust
      will be classified for United States federal income tax purposes at all times
      as
      a grantor trust and will not be required to register as an Investment Company
      under the Investment Company Act (including without limitation to conform to
      any
      change in Rule 3a-5, Rule 3a-7 or any other applicable rule under the Investment
      Company Act or written change in interpretation or application thereof by any
      legislative body, court, government agency or regulatory authority) which
      amendment does not have a material adverse effect on the right, preferences
      or
      privileges of the Holders of Securities;

     

    provided,
      however, that no such modification, elimination or addition referred to
      in clauses (i), (ii), (iii) or (iv) shall adversely affect the powers,
      preferences or rights of Holders of Capital Securities.

     

    Section
      11.2.  Meetings
      of the Holders of the Securities; Action by Written
      Consent.  

     

    (a)           Meetings
      of the Holders of any class of Securities may be called at any time by the
      Administrators (or as provided in the terms of the Securities) to consider
      and
      act on any matter on which Holders of such class of Securities are entitled
      to
      act under the terms of this Declaration, the terms of the Securities or the
      rules of any stock exchange on which the Capital Securities are listed or
      admitted for trading, if any.  The Administrators shall call a meeting
      of the Holders of such class if directed to do so by the Holders of not less
      than 10% in liquidation amount of such class of Securities.  Such
      direction shall be given by delivering to the Administrators one or more notices
      in a writing stating that the signing Holders of the Securities wish to call
      a
      meeting and indicating the general or specific purpose for which the meeting
      is
      to be called.  Any Holders of the Securities calling a meeting shall
      specify in writing the Certificates held by the Holders of the Securities
      exercising the right to call a meeting and only those Securities represented
      by
      such Certificates shall be counted for purposes of determining whether the
      required percentage set forth in the second sentence of this paragraph has
      been
      met.

     

    (b)           Except
      to the extent otherwise provided in the terms of the Securities, the following
      provisions shall apply to meetings of Holders of the Securities:

     

    (i)           notice
      of any such meeting shall be given to all the Holders of the Securities having
      a
      right to vote thereat at least 7 days and not more than 60 days before the
      date
      of such meeting.  Whenever a vote, consent or approval of the Holders
      of the Securities is permitted or required under this Declaration
      or 

    
      
        
        

      

      
        48

        
          

        

      

      the
        rules
        of any stock exchange on which the Capital Securities are listed or admitted
        for
        trading, if any, such vote, consent or approval may be given at a meeting
        of the
        Holders of the Securities.  Any action that may be taken at a meeting
        of the Holders of the Securities may be taken without a meeting if a consent
        in
        writing setting forth the action so taken is signed by the Holders of the
        Securities owning not less than the minimum liquidation amount of Securities
        that would be necessary to authorize or take such action at a meeting at
        which
        all Holders of the Securities having a right to vote thereon were present
        and
        voting.  Prompt notice of the taking of action without a meeting shall
        be given to the Holders of the Securities entitled to vote who have not
        consented in writing. The Administrators may specify that any written ballot
        submitted to the Holders of the Securities for the purpose of taking any
        action
        without a meeting shall be returned to the Trust within the time specified
        by
        the Administrators;

    

     

    (ii)           each
      Holder of a Security may authorize any Person to act for it by proxy on all
      matters in which a Holder of Securities is entitled to participate, including
      waiving notice of any meeting, or voting or participating at a
      meeting.  No proxy shall be valid after the expiration of 11 months
      from the date thereof unless otherwise provided in the proxy. Every proxy shall
      be revocable at the pleasure of the Holder of the Securities executing
      it.  Except as otherwise provided herein, all matters relating to the
      giving, voting or validity of proxies shall be governed by the General
      Corporation Law of the State of Delaware relating to proxies, and judicial
      interpretations thereunder, as if the Trust were a Delaware corporation and
      the
      Holders of the Securities were stockholders of a Delaware corporation; each
      meeting of the Holders of the Securities shall be conducted by the
      Administrators or by such other Person that the Administrators may designate;
      and

     

    (iii)           unless
      the Statutory Trust Act, this Declaration, the terms of the Securities, the
      Trust Indenture Act or the listing rules of any stock exchange on which the
      Capital Securities are then listed for trading, if any, otherwise provides,
      the
      Administrators, in their sole discretion, shall establish all other provisions
      relating to meetings of Holders of Securities, including notice of the time,
      place or purpose of any meeting at which any matter is to be voted on by any
      Holders of the Securities, waiver of any such notice, action by consent without
      a meeting, the establishment of a record date, quorum requirements, voting
      in
      person or by proxy or any other matter with respect to the exercise of any
      such
      right to vote; provided, however, that each meeting shall be
      conducted in the United States (as that term is defined in Treasury Regulations
      section 301.7701-7).

     

    
      
        
        

      

      
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      ARTICLE
      XII                                

     

     

    REPRESENTATIONS
      OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE

     

    Section
      12.1.  Representations
      and Warranties of Institutional Trustee.  The Trustee that acts as
      initial Institutional Trustee represents and warrants to the Trust and to the
      Sponsor at the date of this Declaration, and each Successor Institutional
      Trustee represents and warrants to the Trust and the Sponsor at the time of
      the
      Successor Institutional Trustee’s acceptance of its appointment as Institutional
      Trustee, that:

     

    (a)           the
      Institutional Trustee is a banking corporation or national association with
      trust powers, duly organized, validly existing and in good standing under the
      laws of the State of Delaware or the United States of America, respectively,
      with trust power and authority to execute and deliver, and to carry out and
      perform its obligations under the terms of, this Declaration;

     

    (b)           the
      Institutional Trustee has a combined capital and surplus of at least fifty
      million U.S. dollars ($50,000,000);

     

    (c)           the
      Institutional Trustee is not an Affiliate of the Sponsor, nor does the
      Institutional Trustee offer or provide credit or credit enhancement to the
      Trust;

     

    (d)           the
      execution, delivery and performance by the Institutional Trustee of this
      Declaration has been duly authorized by all necessary action on the part of
      the
      Institutional Trustee, and this Declaration has been duly executed and delivered
      by the Institutional Trustee, and under Delaware law (excluding any securities
      laws) constitutes a legal, valid and binding obligation of the Institutional
      Trustee, enforceable against it in accordance with its terms, subject to
      applicable bankruptcy, reorganization, moratorium, insolvency and other similar
      laws affecting creditors’ rights generally and to general principles of equity
      and the discretion of the court (regardless of whether considered in a
      proceeding in equity or at law);

     

    (e)           the
      execution, delivery and performance of this Declaration by the Institutional
      Trustee does not conflict with or constitute a breach of the charter or by-laws
      of the Institutional Trustee; and

     

    (f)           no
      consent, approval or authorization of, or registration with or notice to, any
      state or federal banking authority governing the trust powers of the
      Institutional Trustee is required for the execution, delivery or performance
      by
      the Institutional Trustee of this Declaration.

     

    Section
      12.2.  Representations
      and Warranties of Delaware Trustee.  The Trustee that acts as
      initial Delaware Trustee represents and warrants to the Trust and to the Sponsor
      at the date of this Declaration, and each Successor Delaware Trustee represents
      and warrants to the Trust and the Sponsor at the time of the Successor Delaware
      Trustee’s acceptance of its appointment as Delaware Trustee that:

     

    (a)           if
      it is not a natural person, the Delaware Trustee is duly organized, validly
      existing and in good standing under the laws of the State of
      Delaware;

     

    (b)           if
      it is not a natural person, the execution, delivery and performance by the
      Delaware Trustee of this Declaration has been duly authorized by all necessary
      corporate action on the part of the Delaware Trustee.  This
      Declaration has been duly executed and delivered by the Delaware Trustee, and
      under Delaware law (excluding any securities laws) constitutes a legal, valid
      and binding obligation of the Delaware Trustee, enforceable against it in
      accordance with its terms, subject to applicable bankruptcy, reorganization,
      moratorium, insolvency and other similar laws affecting creditors’ rights
      generally and to general principles of equity and the discretion of the court
      (regardless of whether considered in a proceeding in equity or at
      law);

     

    (c)           if
      it is not a natural person, the execution, delivery and performance of this
      Declaration by the Delaware Trustee does not conflict with or constitute a
      breach of the charter or by-laws of the Delaware Trustee;

     

    (d)           it
      has trust power and authority to execute and deliver, and to carry out and
      perform its obligations under the terms of, this Declaration;

     

    (e)           no
      consent, approval or authorization of, or registration with or notice to, any
      state or federal banking authority governing the trust powers of the Delaware
      Trustee is required for the execution, delivery or performance by the Delaware
      Trustee of this Declaration; and

     

    (f)           the
      Delaware Trustee is a natural person who is a resident of the State of Delaware
      or, if not a natural person, it is an entity which has its principal place
      of
      business in the State of Delaware and, in either case, a Person that satisfies
      for the Trust the requirements of Section 3807 of the Statutory Trust
      Act.

     

    
      
        
        

      

      
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        ARTICLE
        XIII                         

       

       MISCELLANEOUS

    

     

    Section
      13.1.  Notices.  All
      notices provided for in this Declaration shall be in writing, duly signed by
      the
      party giving such notice, and shall be delivered, telecopied (which telecopy
      shall be followed by notice delivered or mailed by first class mail) or mailed
      by first class mail, as follows:

     

    (a)           if
      given to the Trust, in care of the Administrators at the Trust’s mailing address
      set forth below (or such other address as the Trust may give notice of to the
      Holders of the Securities):

     

    BNC
      Statutory Trust III

    322
      East
      Main

    Bismarck,
      North Dakota 58501

    Attention:
      Annette Eckroth

    Telecopy:
      (701) 222-3653

    Telephone:
      (701) 250-3040

    


    (b)           if
      given to the Delaware Trustee, at the mailing address set forth below (or such
      other address as the Delaware Trustee may give notice of to the Holders of
      the
      Securities):

     

    Wilmington
      Trust Company

    Rodney
      Square North

    1100
      North Market Street

    Wilmington,
      Delaware 19890-0001

    Attention:
      Corporate Capital Markets

    Telecopy:
      (302) 636-4140

    Telephone:
      (302) 651-1000

    


    (c)           if
      given to the Institutional Trustee, at the Institutional Trustee’s mailing
      address set forth below (or such other address as the Institutional Trustee
      may
      give notice of to the Holders of the Securities):

     

    Wilmington
      Trust Company

    Rodney
      Square North

    1100
      North Market Street

    Wilmington,
      Delaware 19890-0001

    Attention:
      Corporate Capital Markets

    Telecopy:
      (302) 636-4140

    Telephone:
      (302) 651-1000

    


    (d)           if
      given to the Holder of the Common Securities, at the mailing address of the
      Sponsor set forth below (or such other address as the Holder of the Common
      Securities may give notice of to the Trust):

     

    BNCCORP,
      Inc.

    322
      East
      Main

    Bismarck,
      North Dakota 58501

    Attention:
      Annette Eckroth

    Telecopy:
      (701) 222-3653

    Telephone:
      (701) 250-3040

    


    (e)           if
      given to any other Holder, at the address set forth on the books and records
      of
      the Trust.

     

    All
      such
      notices shall be deemed to have been given when received in person, telecopied
      with receipt confirmed, or mailed by first class mail, postage prepaid, 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.

     

    
      
        
        

      

      
        51

        
          

        

      

      
        
        

      

    

    Section
      13.2.  Governing
      Law.  This Declaration and the rights and obligations of the
      parties hereunder shall be governed by and interpreted in accordance with the
      law of the State of Delaware and all rights, obligations and remedies shall
      be
      governed by such laws without regard to the principles of conflict of laws
      of
      the State of Delaware or any other jurisdiction that would call for the
      application of the law of any jurisdiction other than the State of
      Delaware.

     

    
      
        
        

      

      
        52

        
          

        

      

      
        
        

      

    

    Section
      13.3.  Submission
      to Jurisdiction. 

     

    (a)           Each
      of the parties hereto agrees that any suit, action or proceeding arising out
      of
      or based upon this Declaration, or the transactions contemplated hereby, may
      be
      instituted in any of the courts of the State of New York and the United States
      District Courts, in each case located in the Borough of Manhattan, City and
      State of New York, and further agrees to submit to the jurisdiction of any
      competent court in the place of its corporate domicile in respect of actions
      brought against it as a defendant.  In addition, each such party
      irrevocably waives, to the fullest extent permitted by law, any objection which
      it may now or hereafter have to the laying of the venue of such suit, action
      or
      proceeding brought in any such court and irrevocably waives any claim that
      any
      such suit, action or proceeding brought in any such court has been brought
      in an
      inconvenient forum and irrevocably waives any right to which it may be entitled
      on account of its place of corporate domicile.  Each such party hereby
      irrevocably waives any and all right to trial by jury in any legal proceeding
      arising out of or relating to this Declaration or the transactions contemplated
      hereby.  Each such party agrees that final judgment in any proceedings
      brought in such a court shall be conclusive and binding upon it and may be
      enforced in any court to the jurisdiction of which it is subject by a suit
      upon
      such judgment.

     

    (b)           Each
      of the Sponsor, the Trustees, the Administrators and the Holder of the Common
      Securities irrevocably consents to the service of process on it in any such
      suit, action or proceeding in any such court by the mailing thereof by
      registered or certified mail, postage prepaid, to it at its address given in
      or
      pursuant to Section 13.1 hereof.

     

    (c)           To
      the extent permitted by law, nothing herein contained shall preclude any party
      from effecting service of process in any lawful manner or from bringing any
      suit, action or proceeding in respect of this Declaration in any other state,
      country or place.

     

    Section
      13.4.  Intention
      of the Parties.  It is the intention of the parties hereto that
      the Trust be classified for United States federal income tax purposes as a
      grantor trust.  The provisions of this Declaration shall be
      interpreted to further this intention of the parties.

     

    Section
      13.5.  Headings.  Headings
      contained in this Declaration are inserted for convenience of reference only
      and
      do not affect the interpretation of this Declaration or any provision
      hereof.

     

    Section
      13.6.  Successors
      and Assigns.  Whenever in this Declaration any of the parties
      hereto is named or referred to, the successors and assigns of such party shall
      be deemed to be included, and all covenants and agreements in this Declaration
      by the Sponsor and the Trustees shall bind and inure to the benefit of their
      respective successors and assigns, whether or not so expressed.

     

    Section
      13.7.  Partial
      Enforceability.  If any provision of this Declaration, or the
      application of such provision to any Person or circumstance, shall be held
      invalid, the remainder of this Declaration, or the application of such provision
      to persons or circumstances other than those to which it is held invalid, shall
      not be affected thereby.

     

    
      
        
        

      

      
        53

        
          

        

      

      
        
        

      

    

    Section
      13.8.  Counterparts.  This
      Declaration may contain more than one counterpart of the signature page and
      this
      Declaration may be executed by the affixing of the signature of each of the
      Trustees and Administrators to any of such counterpart signature pages. All
      of
      such counterpart signature pages shall be read as though one, and they shall
      have the same force and effect as though all of the signers had signed a single
      signature page.

     


    
      
              

          
            	 	 	 


          
      

                          
      
    

        
        

      

      
        54

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the undersigned have caused this Declaration to be duly
      executed as of the day and year first above written.

     

    
      	
               

            	
              WILMINGTON
                TRUST COMPANY,

            


    

     

    
      	
               

            	
              as
                Delaware Trustee

            


    

     

    
      	
               

            	
              By:
                /s/ Geoffrey J.
                Lewis                              
                 

            


    

     

    
      	
               

            	
              Name:
                Geoffrey J. Lewis

            


    

     

    
      	
               

            	
              Title  
                Financial Services Officer

            


    

     

    
      	
               

            	
              WILMINGTON
                TRUST COMPANY,

            


    

     

    
      	
               

            	
              as
                Institutional Trustee

            


    

     

    
      	
               

            	
              By:
                /s/ Geoffrey J.
                Lewis                                
                

            


    

     

    
      	
               

            	
              Name:
                Geoffrey J. Lewis

            


    

     

    
      	
               

            	
              Title:  
                Financial Services Officer

            


    

     

    
      	
               

            	
              BNCCORP,
                INC.

            


    

     

    
      	
               

            	
              as
                Sponsor

            


    

     

    
      	
               

            	
              By:
                /s/ Gregory K.
                Cleveland                         
                

            


    

     

    
      	
               

            	
              Name:  Gregory
                K. Cleveland

            


    

     

    
      	
               

            	
              Title:  President
                and Chief Executive Officer

            


    

     

    


     

    
      	
               

            	
              By:
                /s/ Gregory K.
                Cleveland                         
                 

            


    

     

    
      	
               

            	
              Name:  Gregory
                K. Cleveland

            


    

     

    
      	
               

            	
              Title:
                Administrator

            


    

     

    
      	
               

            	
              By:
                /s/ Timothy J.
                Franz                                    

            


    

     

    
      	
               

            	
              Name:  Timothy
                J. Franz

            


    

     

    
      	
               

            	
              Title:
                Administrator

            


    

     


    
      
        
        

      

      
        55

        
          

        

      

      
        
        

      

    


    ANNEX
      I

     

    


     

    TERMS
      OF

     

    FLOATING
      RATE CAPITAL SECURITIES AND

     

    FLOATING
      RATE COMMON SECURITIES

     

    Pursuant
      to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of
      July 30, 2007 (as amended from time to time, the “Declaration”), the
      designation, rights, privileges, restrictions, preferences and other terms
      and
      provisions of the Capital Securities and the Common Securities are set out
      below
      (each capitalized term used but not defined herein has the meaning set forth
      in
      the Declaration):

     

    1.           Designation
      and Number.

     

    (a)           Capital
      Securities.  15,000 Capital Securities of BNC Statutory Trust III (the
“Trust”), with an aggregate stated liquidation amount with respect to the assets
      of the Trust of FIFTEEN MILLION Dollars ($15,000,000) and a stated liquidation
      amount with respect to the assets of the Trust of $1,000 per Capital Security,
      are hereby designated for the purposes of identification only as the “Floating
      Rate Capital Securities” (the “Capital
      Securities”).  The Capital Security Certificates evidencing the
      Capital Securities shall be substantially in the form of Exhibit A-1 to the
      Declaration, with such changes and additions thereto or deletions therefrom
      as
      may be required by ordinary usage, custom or practice or to conform to the
      rules
      of any stock exchange on which the Capital Securities are listed, if
      any.

     

    (b)           Common
      Securities.  464 Common Securities of the Trust (the “Common
      Securities”) will be evidenced by Common Security Certificates substantially in
      the form of Exhibit A-2 to the Declaration, with such changes and additions
      thereto or deletions therefrom as may be required by ordinary usage, custom
      or
      practice.  In the absence of an Event of Default, the Common
      Securities will have an aggregate stated liquidation amount with respect to
      the
      assets of the Trust of FOUR HUNDRED SIXTY-FOUR THOUSAND Dollars ($464,000)
      and a
      stated liquidation amount with respect to the assets of the Trust of $1,000
      per
      Common Security.

     

    2.           Distributions.  (a)  Distributions
      payable on each Security will be payable at a variable per annum rate of
      interest which, with respect to any Distribution Period (as defined herein),
      will be equal to LIBOR, as determined on the LIBOR Determination Date for such
      Distribution Period, plus 1.40% (the “Coupon Rate”), such rate being the rate of
      interest payable on the Debentures to be held by the Institutional
      Trustee.  Except as set forth below in respect of an Extension Period,
      Distributions in arrears for more than one Distribution Period will bear
      interest thereon compounded quarterly at the applicable Coupon Rate for each
      such Distribution Period (to the extent permitted by applicable
      law).  The term “Distributions” as used herein includes cash
      distributions, any such compounded distributions and any Additional Interest
      payable on the Debentures unless otherwise stated.  A Distribution is
      payable only to the extent that payments are made in respect of the Debentures
      held by the Institutional Trustee and to the extent the Institutional Trustee
      has funds available in the Property Account therefor.  The amount of
      Distributions payable for any Distribution Period will be computed on the basis
      of a 360-day year and the actual number of days elapsed in the relevant
      Distribution Period; provided, however, that upon the occurrence
      of a Special Event redemption pursuant to paragraph 4(a) below the amounts
      payable pursuant to this Declaration shall be calculated as set forth in the
      definition of Special Redemption Price.

     

    The
      term
“Distribution Period” means the period from and including each Distribution
      Payment Date or, in the case of the first Distribution Period, the original
      date
      of issuance of the Securities to, but excluding, the next succeeding
      Distribution Payment Date or, in the case of the last Distribution Period,
      the
      Redemption Date, Special Redemption Date or Maturity Date, as
      applicable.

     

    (b)           LIBOR
      shall be determined by the Calculation Agent for each Distribution Period in
      accordance with the following provisions:

     

    (1)           On
      the second LIBOR Business Day (provided, that on such day commercial
      banks are open for business (including dealings in foreign currency deposits)
      in
      London (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business
      Day that is also a LIBOR Banking Day) prior to January 1, April 1, July 1 and
      October 1, as the case may be, immediately preceding the commencement of such
      Distribution Period, (or, in the case of the first Distribution Period, prior
      to
      July 30, 2007) (each such day, a “LIBOR Determination Date”), LIBOR shall equal
      the rate, as obtained by the Calculation Agent for three-month U.S. Dollar
      deposits in Europe, which appears on Reuters Screen (as defined in the
      International Swaps and Derivatives Association, Inc. 2000 Interest Rate and
      Currency Exchange Definitions) LIBOR01 Page or such other page as may replace
      such Reuters Screen LIBOR01 Page, as of 11:00 a.m. (London time) on such LIBOR
      Determination Date, as reported by Bloomberg Financial Markets Commodities
      News
      (or any successor service).  “LIBOR Business Day” means any day that
      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.  If such rate is superseded on
      Reuters Screen LIBOR01 Page by a corrected rate before 12:00 noon (London time)
      on the same LIBOR Determination Date, the corrected rate as so substituted
      will
      be the applicable LIBOR for that LIBOR Determination Date.

     

    (2)           If,
      on any LIBOR Determination Date, such rate does not appear on Reuters Screen
      LIBOR01 Page as reported by Bloomberg Financial Markets Commodities News or
      such
      other page as may replace such Reuters Screen LIBOR01 Page, the Calculation
      Agent shall determine the arithmetic mean of the offered quotations of the
      Reference Banks (as defined below) to leading banks in the London interbank
      market for three-month U.S. Dollar deposits in Europe (in an amount determined
      by the Calculation Agent) by reference to requests for quotations as of
      approximately 11:00 a.m. (London time) on the LIBOR Determination Date made
      by
      the Calculation Agent to the Reference Banks.  If, on any LIBOR
      Determination Date, at least two of the Reference Banks provide such quotations,
      LIBOR shall equal the arithmetic mean of such quotations.  If, on any
      LIBOR Determination Date, only one or none of the Reference Banks provide such
      a
      quotation, LIBOR shall be deemed to be the arithmetic mean of the offered
      quotations that at least two leading banks in the City of New York (as selected
      by the Calculation Agent) are quoting on the relevant LIBOR Determination Date
      for three-month U.S. Dollar deposits in Europe at approximately 11:00 a.m.
      (London time) (in an amount determined by the Calculation Agent). As used
      herein, “Reference Banks” means four major banks in the London interbank market
      selected by the Calculation Agent.

     

    (3)           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 in effect on the previous LIBOR Determination Date (whether or not LIBOR
      for such period was in fact determined on such LIBOR Determination
      Date).

     

    (c)           All
      percentages resulting from any calculations on the Securities will be rounded,
      if necessary, to the nearest one hundred-thousandth of a percentage point,
      with
      five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
      .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts
      used
      in or resulting from such calculation will be rounded to the nearest cent (with
      one-half cent being rounded upward).

     

    (d)           On
      each LIBOR Determination Date, the Calculation Agent shall notify, in writing,
      the Sponsor and the Paying Agent of the applicable Coupon Rate in effect for
      the
      related Distribution Period.  The Calculation Agent shall, upon the
      request of the Holder of any Securities, provide the Coupon Rate then in
      effect.  All calculations made by the Calculation Agent in the absence
      of manifest error shall be conclusive for all purposes and binding on the
      Sponsor and the Holders of the Securities.  The Paying Agent shall be
      entitled to rely on information received from the Calculation Agent or the
      Sponsor as to the Coupon Rate.  The Sponsor shall, from time to time,
      provide any necessary information to the Paying Agent relating to any original
      issue discount and interest on the Securities that is included in any payment
      and reportable for taxable income calculation purposes.

     

    (e)           Distributions
      on the Securities will be cumulative, will accrue from the date of original
      issuance, and will be payable, subject to extension of Distribution Periods
      as
      described herein, quarterly in arrears on January 1, April 1, July 1 and October
      1 of each year, commencing on October 1, 2007 (each, a “Distribution Payment
      Date”).  The Debenture Issuer has the right under the Indenture to
      defer payments of interest on the Debentures by extending the interest payment
      period for up to 20 consecutive quarterly periods (each, an “Extension Period”)
      at any time and from time to time on the Debentures, subject to the conditions
      described below.  During any Extension Period, interest will continue
      to accrue on the Debentures, and interest on such accrued interest (such accrued
      interest and interest thereon referred to herein as “Deferred Interest”) will
      accrue at an annual rate equal to the Coupon Rate in effect for each such
      Extension Period, compounded quarterly from the date such Deferred Interest
      would have been payable were it not for the Extension Period, to the extent
      permitted by law.  No Extension Period may end on a date other than a
      Distribution Payment Date.  At the end of any such Extension Period,
      the Debenture Issuer shall pay all Deferred Interest then accrued and unpaid
      on
      the Debentures; provided, however, that no Extension Period may
      extend beyond the Maturity Date, Redemption Date or Special Redemption Date
      and
provided, further, that, during any such Extension Period, the
      Debenture Issuer may 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 Debenture Issuer’s capital stock, (ii) make any payment due on or repay,
      repurchase or redeem any debt securities of the Debenture Issuer that rank
      pari passu in all respects with or junior in interest to the Debentures
      or (iii) make any payment under any guarantees of the Debenture Issuer that
      rank
pari passu in all respects with or junior in interest to the Guarantee
      (other than (a) repurchases, redemptions or other acquisitions of shares of
      capital stock of the Debenture Issuer (I) in connection with any employment
      contract, benefit plan or other similar arrangement with or for the benefit
      of
      one or more employees, officers, directors or consultants, (II) in connection
      with a dividend reinvestment or stockholder stock purchase plan or (III) in
      connection with the issuance of capital stock of the Debenture Issuer (or
      securities convertible into or exercisable for such capital stock) as
      consideration in an acquisition transaction entered into prior to the occurrence
      of an event set forth in clause (i), (ii) or (iii) of Section 3.08 of the
      Indenture, (b) as a result of any exchange or conversion of any class or series
      of the Debenture Issuer’s capital stock (or any capital stock of a subsidiary of
      the Debenture Issuer) for any class or series of the Debenture Issuer’s capital
      stock or of any class or series of the Debenture Issuer’s indebtedness for any
      class or series of the Debenture Issuer’s capital stock, (c) the purchase of
      fractional interests in shares of the Debenture Issuer’s capital stock pursuant
      to the conversion or exchange provisions of such capital stock or the security
      being converted or exchanged, (d) any declaration of a dividend in connection
      with any stockholder’s rights plan, or the issuance of rights, stock or other
      property under any stockholder’s rights plan, or the redemption or repurchase of
      rights pursuant thereto or (e) any dividend in the form of stock, warrants,
      options or other rights where the dividend stock or the stock issuable upon
      exercise of such warrants, options or other rights is the same stock as that
      on
      which the dividend is being paid or ranks pari passu with or junior in
      interest to such stock).  Prior to the termination of any Extension
      Period, the Debenture Issuer may further extend such period, provided,
      that such period together with all such previous and further consecutive
      extensions thereof shall not exceed 20 consecutive quarterly
      periods.  Upon the termination of any Extension Period and upon the
      payment of all Deferred Interest, the Debenture Issuer may commence a new
      Extension Period, subject to the foregoing requirements. No interest or Deferred
      Interest (except any Additional Interest that may be due and payable) shall
      be
      due and payable during an Extension Period, except at the end thereof, but
      interest shall accrue upon each installment of interest that would otherwise
      have been due and payable during such Extension Period until such installment
      is
      paid.  If Distributions are deferred, the Distributions due shall be
      paid on the date that the related Extension Period terminates, or, if such
      date
      is not a Distribution Payment Date, on the immediately following Distribution
      Payment Date, to Holders of the Securities as they appear on the books and
      records of the Trust on the record date immediately preceding such
      date.  Distributions on the Securities must be paid on the dates
      payable (after giving effect to any Extension Period) to the extent that the
      Trust has funds legally available for the payment of such distributions in
      the
      Property Account of the Trust.  The Trust’s funds available for
      Distribution to the Holders of the Securities will be limited to payments
      received from the Debenture Issuer.  The payment of Distributions out
      of moneys held by the Trust is guaranteed by the Guarantor pursuant to the
      Guarantee.

     

    (f)           Distributions
      on the Securities will be payable to the Holders thereof as they appear on
      the
      books and records of the Registrar on the relevant record dates.  The
      relevant record dates shall be selected by the Administrators, which dates
      shall
      be 15 days before the relevant payment dates.  Distributions payable
      on any Securities that are not punctually paid on any Distribution Payment
      Date,
      as a result of the Debenture Issuer having failed to make a payment under the
      Debentures, as the case may be, when due (taking into account any Extension
      Period), will cease to be payable to the Person in whose name such Securities
      are registered on the relevant record date, and such defaulted Distribution
      will
      instead be payable to the Person in whose name such Securities are registered
      on
      the special record date or other specified date determined in accordance with
      the Indenture.  If any Distribution Payment Date other than any date
      of redemption, falls on a day that is not a Business Day, then Distributions
      payable will be paid on, and such Distribution Payment Date will be moved to,
      the next succeeding Business Day, and additional Distributions will accrue
      for
      each day that such payment is delayed as a result thereof.

     

    (g)           In
      the event that there is any money or other property held by or for the Trust
      that is not accounted for hereunder, such property shall be distributed pro
      rata
      (as defined herein) among the Holders of the Securities.

     

    3.           Liquidation
      Distribution Upon Dissolution.  In the event of the voluntary or
      involuntary liquidation, dissolution, winding-up or termination of the Trust
      (each, a “Liquidation”) other than in connection with a redemption of the
      Debentures, the Holders of the Securities will be entitled to receive out of
      the
      assets of the Trust available for distribution to Holders of the Securities,
      after satisfaction of liabilities to creditors of the Trust (to the extent
      not
      satisfied by the Debenture Issuer), distributions equal to the aggregate of
      the
      stated liquidation amount of $1,000 per Security plus accrued and unpaid
      Distributions thereon to the date of payment (such amount being the “Liquidation
      Distribution”), unless in connection with such Liquidation, the Debentures in an
      aggregate stated principal amount equal to the aggregate stated liquidation
      amount of such Securities, with an interest rate equal to the Coupon Rate of,
      and bearing accrued and unpaid interest in an amount equal to the accrued and
      unpaid Distributions on, and having the same record date as, such Securities,
      after paying or making reasonable provision to pay all claims and obligations
      of
      the Trust in accordance with Section 3808(e) of the Statutory Trust Act, shall
      be distributed on a Pro Rata basis to the Holders of the Securities in exchange
      for such Securities.

     

    The
      Sponsor, as the Holder of all of the Common Securities, has the right at any
      time to dissolve the Trust (including without limitation upon the occurrence
      of
      a Tax Event, an Investment Company Event or a Capital Treatment Event), subject
      to the receipt by the Debenture Issuer of prior approval from the Board of
      Governors of the Federal Reserve System (the “Federal Reserve”), if then
      required under applicable capital guidelines or policies of the Federal Reserve
      and, after satisfaction of liabilities to creditors of the Trust, cause the
      Debentures to be distributed to the Holders of the Securities on a Pro Rata
      basis in accordance with the aggregate stated liquidation amount
      thereof.

     

    The
      Trust
      shall dissolve on the first to occur of (i) October 1, 2042, the expiration
      of
      the term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor,
      the
      Trust or the Debenture Issuer, (iii) (other than in connection with a merger,
      consolidation or similar transaction not prohibited by the Indenture, this
      Declaration or the Guarantee, as the case may be) the filing of a certificate
      of
      dissolution of the Sponsor or upon the revocation of the charter of the Sponsor
      and the expiration of 90 days after the date of revocation without a
      reinstatement thereof, (iv) the distribution to the Holders of the Securities
      of
      the Debentures, upon exercise of the right of the Holder of all of the
      outstanding Common Securities to dissolve the Trust as described above, (v)
      the
      entry of a decree of a judicial dissolution of the Sponsor or the Trust, or
      (vi)
      when all of the Securities shall have been called for redemption and the amounts
      necessary for redemption thereof shall have been paid to the Holders in
      accordance with the terms of the Securities.  As soon as practicable
      after the dissolution of the Trust and upon completion of the winding up of
      the
      Trust, the Trust shall terminate upon the filing of a certificate of
      cancellation with the Secretary of State of the State of Delaware.

     

    If
      a
      Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or
      (v)
      in the immediately preceding paragraph, the Trust shall be liquidated by the
      Institutional Trustee of the Trust as expeditiously as such Trustee determines
      to be possible by distributing, after satisfaction of liabilities to creditors
      of the Trust as provided by applicable law, to the Holders of the Securities,
      the Debentures on a Pro Rata basis to the extent not satisfied by the Debenture
      Issuer, unless such distribution is determined by the Institutional Trustee
      not
      to be practical, in which event such Holders will be entitled to receive out
      of
      the assets of the Trust available for distribution to the Holders, after
      satisfaction of liabilities to creditors of the Trust to the extent not
      satisfied by the Debenture Issuer, an amount equal to the Liquidation
      Distribution.  An early Liquidation of the Trust pursuant to
      clause (iv) of the immediately preceding paragraph shall occur if the
      Institutional Trustee determines that such Liquidation is possible by
      distributing, after satisfaction of liabilities to creditors of Trust, to the
      Holders of the Securities on a Pro Rata basis, the Debentures, and such
      distribution occurs.

     

    If,
      upon
      any such Liquidation, 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 the amounts payable directly by the Trust on
      such
      Capital Securities shall be paid to the Holders of the Securities on a Pro
      Rata
      basis, except that if an Event of Default has occurred and is continuing, the
      Capital Securities shall have a preference over the Common Securities with
      regard to such distributions.

     

    Upon
      any
      such Liquidation of the Trust involving a distribution of the Debentures, if
      at
      the time of such Liquidation, the Capital Securities were rated by at least
      one
      nationally-recognized statistical rating organization, the Debenture Issuer
      will
      use its reasonable best efforts to obtain from at least one such or other rating
      organization a rating for the Debentures.

     

    After
      the
      date for any distribution of the Debentures upon dissolution of the Trust,
      (i)
      the Securities of the Trust will be deemed to be no longer outstanding, (ii)
      any
      certificates representing the Securities will be deemed to represent undivided
      beneficial interests in such of the Debentures as have an aggregate principal
      amount equal to the aggregate stated liquidation amount of, with an interest
      rate identical to the distribution rate of, and bearing accrued and unpaid
      interest equal to accrued and unpaid distributions on, the Securities until
      such
      certificates are presented to the Debenture Issuer or its agent for transfer
      or
      reissuance (and until such certificates are so surrendered, no payments of
      interest or principal shall be made to Holders of Securities in respect of
      any
      payments due and payable under the Debentures) and (iii) all rights of Holders
      of Securities under the Capital Securities or the Common Securities, as
      applicable, shall cease, except the right of such Holders to receive Debentures
      upon surrender of certificates representing such Securities.

     

    4.           Redemption
      and Distribution.

     

    (a)           The
      Debentures will mature on October 1, 2037.  The Debentures may be
      redeemed by the Debenture Issuer, in whole or in part, on any January 1, April
      1, July 1 and October 1 on or after October 1, 2012, at the Redemption Price,
      upon not less than 30 nor more than 60 days’ notice to Holders of such
      Debentures.  In addition, upon the occurrence and continuation of a
      Tax Event, an Investment Company Event or a Capital Treatment Event, the
      Debentures may be redeemed by the Debenture Issuer in whole but not in part,
      at
      any time within 90 days following the occurrence of such Tax Event, Investment
      Company Event or Capital Treatment Event, as the case may be (the “Special
      Redemption Date”), at the Special Redemption Price, upon not less than 30 nor
      more than 60 days’ notice to Holders of the Debentures so long as such Tax
      Event, Investment Company Event or Capital Treatment Event, as the case may
      be,
      is continuing.  In each case, the right of the Debenture Issuer to
      redeem the Debentures is subject to the Debenture Issuer having received prior
      approval from the Federal Reserve, if then required under applicable capital
      guidelines or policies of the Federal Reserve.

     

    “Tax
      Event” means the receipt by the Debenture Issuer and the Trust of an opinion of
      counsel experienced in such matters to the effect that, as a result of any
      amendment to or change (including any announced prospective change) in the
      laws
      or any regulations thereunder of the United States or any political subdivision
      or taxing authority thereof or therein, or as a result of any official
      administrative pronouncement (including any private letter ruling, technical
      advice memorandum, regulatory procedure, notice or announcement)(an
“Administrative Action”) or judicial decision interpreting or applying such laws
      or regulations, regardless of whether such Administrative Action or judicial
      decision is issued to or in connection with a proceeding involving the Debenture
      Issuer or the Trust and whether or not subject to review or appeal, which
      amendment, clarification, change, Administrative Action or decision is enacted,
      promulgated or announced, in each case on or after the date of original issuance
      of the Debentures, there is more than an insubstantial risk that: (i) the Trust
      is, or will be within 90 days of the date of such opinion, subject to United
      States federal income tax with respect to income received or accrued on the
      Debentures; (ii) interest payable by the Debenture Issuer on the Debentures
      is
      not, or within 90 days of the date of such opinion, will not be, deductible
      by
      the Debenture Issuer, in whole or in part, for United States federal income
      tax
      purposes; or (iii) the Trust is, or will be within 90 days of the date of such
      opinion, subject to or otherwise required to pay, or required to withhold from
      distributions to holders of Trust Securities, more than a de minimis amount
      of
      other taxes (including withholding taxes), duties, assessments or other
      governmental charges.

     

    “Investment
      Company Event” means the receipt by the Debenture Issuer and the Trust of an
      opinion of counsel experienced in such matters to the effect that, as a result
      of a change in law or regulation or written change in interpretation or
      application of law or regulation by any legislative body, court, governmental
      agency or regulatory authority, there is more than an insubstantial risk that
      the Trust is or, within 90 days of the date of such opinion will be, considered
      an “investment company” that is required to be registered under the Investment
      Company Act, which change becomes effective on or after the date of the original
      issuance of the Debentures.

     

    “Capital
      Treatment Event” means the receipt by the Debenture Issuer and the Trust of an
      opinion of counsel experienced in such matters to the effect that, as a result
      of any amendment to, or change in, the laws, rules or regulations of the United
      States or any political subdivision thereof or therein, or as the result of
      any
      official or administrative pronouncement or action or decision interpreting
      or
      applying such laws, rules or regulations, which amendment or change is effective
      or which pronouncement, action or decision is announced on or after the date
      of
      original issuance of the Debentures, there is more than an insubstantial risk
      that the Debenture Issuer will not, within 90 days of the date of such opinion,
      be entitled to treat an amount equal to the aggregate Liquidation Amount of
      the
      Capital Securities as “Tier 1 Capital” (or the then equivalent thereof) for
      purposes of the capital adequacy guidelines of the Federal Reserve (or any
      successor regulatory authority with jurisdiction over bank holding companies),
      as then in effect and applicable to the Debenture Issuer; provided,
however, that the distribution of the Debentures in connection with
      the
      Liquidation of the Trust by the Debenture Issuer shall not in and of itself
      constitute a Capital Treatment Event unless such Liquidation shall have occurred
      in connection with a Tax Event or an Investment Company Event.

     

    “Special
      Event” means any of a Capital Treatment Event, a Tax Event or an Investment
      Company Event.

     

    “Redemption
      Price” means 100% of the principal amount of the Debentures being redeemed plus
      accrued and unpaid interest on such Debentures to the Redemption Date or, in
      the
      case of a redemption in full at maturity, the Maturity Date, or, in the case
      of
      a redemption due to the occurrence of a Special Event, to the Special Redemption
      Date if such Special Redemption Date is on or after October 1,
      2012.

     

    “Special
      Redemption Price” means, with respect to the redemption of any Debenture
      following a Special Event, an amount in cash equal to the percentage for the
      principal amount of the Debentures that is specified below for the Special
      Redemption Date plus unpaid interest accrued thereon to the Special Redemption
      Date:

     

    
      	
              Special
                Event Redemption During Period Beginning On

               

            	
              Percentage
                of Principal Amount

            
	
              July
                30, 2007

            	
              104.40

            
	
              October
                1, 2008

            	
              103.52

            
	
              October
                1, 2009

            	
              102.64

            
	
              October
                1, 2010

            	
              101.76

            
	
              October
                1, 2011

            	
              100.88

            
	
              October
                1, 2012

            	
              100.00

            


    

    


     

    “Redemption
      Date” means the date fixed for the redemption of Capital Securities, which shall
      be any January 1, April 1, July 1 and October 1 on or after October 1,
      2012.

     

    (b)           Upon
      the repayment in full at maturity or redemption in whole or in part of the
      Debentures (other than following the distribution of the Debentures to the
      Holders of the Securities), the proceeds from such repayment or payment shall
      concurrently be applied to redeem Pro Rata at the applicable Redemption Price
      or
      Special Redemption Price, as the case may be, Securities having an aggregate
      liquidation amount equal to the aggregate principal amount of the Debentures
      so
      repaid or redeemed; provided, however, that holders of such
      Securities shall be given not less than 30 nor more than 60 days’ notice of such
      redemption (other than at the scheduled maturity of the
      Debentures).

     

    (c)           If
      fewer than all the outstanding Securities are to be so redeemed, the Common
      Securities and the Capital Securities will be redeemed Pro Rata and the Capital
      Securities to be redeemed will be as described in Section 4(e)(ii)
      below.

     

    (d)           The
      Trust may not redeem fewer than all the outstanding Capital Securities unless
      all accrued and unpaid Distributions have been paid on all Capital Securities
      for all Distribution Periods terminating on or before the date of
      redemption.

     

    (e)           Redemption
      or Distribution Procedures.

     

    (i)           Notice
      of any redemption of, or notice of distribution of the Debentures in exchange
      for, the Securities (a “Redemption/Distribution Notice”) will be given by the
      Trust by mail to each Holder of Securities to be redeemed or exchanged not
      fewer
      than 30 nor more than 60 days before the date fixed for redemption or exchange
      thereof which, in the case of a redemption, will be the date fixed for
      redemption of the Debentures.  For purposes of the calculation of the
      date of redemption or exchange and the dates on which notices are given pursuant
      to this Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to
      be
      given on the day such notice is first mailed by first-class mail, postage
      prepaid, to Holders of such Securities.  Each Redemption/Distribution
      Notice shall be addressed to the Holders of such Securities at the address
      of
      each such Holder appearing on the books and records of the
      Registrar.  No defect in the Redemption/Distribution Notice or in the
      mailing thereof with respect to any Holder shall affect the validity of the
      redemption or exchange proceedings with respect to any other
      Holder.

     

    (ii)           In
      the event that fewer than all the outstanding Securities are to be redeemed,
      the
      Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
      Securities.

     

    (iii)           If
      the Securities are to be redeemed and the Trust gives a Redemption/Distribution
      Notice, which notice may only be issued if the Debentures are redeemed as set
      out in this Section 4 (which notice will be irrevocable), then, provided,
      that the Institutional Trustee has a sufficient amount of cash in connection
      with the related redemption or maturity of the Debentures, the Institutional
      Trustee will pay the relevant redemption price to the Holders of such Securities
      by check mailed to the address of each such Holder appearing on the books and
      records of the Trust on the redemption date.  If a
      Redemption/Distribution Notice shall have been given and funds deposited as
      required, then immediately prior to the close of business on the date of such
      deposit, Distributions will cease to accrue on the Securities so called for
      redemption and all rights of Holders of such Securities so called for redemption
      will cease, except the right of the Holders of such Securities to receive the
      applicable redemption price specified in Section 4(a), but without interest
      on
      such redemption price.  If any date fixed for redemption of Securities
      is not a Business Day, then payment of any such redemption price payable on
      such
      date will be made on the next succeeding day that is a Business Day (and without
      any interest or other payment in respect of any such delay) except that, if
      such
      Business Day falls in the next calendar year, such payment will be made on
      the
      immediately preceding Business Day, in each case with the same force and effect
      as if made on such date fixed for redemption.  If payment of the
      redemption price in respect of any Securities is improperly withheld or refused
      and not paid either by the Trust or by the Debenture Issuer as guarantor
      pursuant to the Guarantee, Distributions on such Securities will continue to
      accrue at the then applicable rate from the original redemption date to the
      actual date of payment, in which case the actual payment date will be considered
      the date fixed for redemption for purposes of calculating the redemption
      price.  In the event of any redemption of the Capital Securities
      issued by the Trust in part, the Trust shall not be required to (i) issue,
      register the transfer of or exchange any Security during a period beginning
      at
      the opening of business 15 days before any selection for redemption of the
      Capital Securities and ending at the close of business on the earliest date
      on
      which the relevant notice of redemption is deemed to have been given to all
      Holders of the Capital Securities to be so redeemed or (ii) register the
      transfer of or exchange any Capital Securities so selected for redemption,
      in
      whole or in part, except for the unredeemed portion of any Capital Securities
      being redeemed in part.

     

    (iv)           Redemption/Distribution
      Notices shall be sent by the Administrators on behalf of the Trust (A) in
      respect of the Capital Securities, to the Holders thereof, and (B) in respect
      of
      the Common Securities, to the Holder thereof.

     

    (v)           Subject
      to the foregoing and applicable law (including, without limitation, United
      States federal securities laws), and provided, that the acquiror is not
      the Holder of the Common Securities or the obligor under the Indenture, the
      Sponsor or any of its subsidiaries may at any time and from time to time
      purchase outstanding Capital Securities by tender, in the open market or by
      private agreement.

     

    5.           Voting
      Rights - Capital Securities.  (a)  Except as provided
      under Sections 5(b) and 7 and as otherwise required by law and the Declaration,
      the Holders of the Capital Securities will have no voting rights.  The
      Administrators are required to call a meeting of the Holders of the Capital
      Securities if directed to do so by Holders of not less than 10% in liquidation
      amount of the Capital Securities.

     

    (b)           Subject
      to the requirements of obtaining a tax opinion by the Institutional Trustee
      in
      certain circumstances set forth in the last sentence of this paragraph, the
      Holders of a Majority in liquidation amount of the Capital Securities, voting
      separately as a class, have the right to direct the time, method, and place
      of
      conducting any proceeding for any remedy available to the Institutional Trustee,
      or exercising any trust or power conferred upon the Institutional Trustee under
      the Declaration, including the right to direct the Institutional Trustee, as
      holder of the Debentures, to (i) exercise the remedies available under the
      Indenture as the holder of the Debentures, (ii) waive any past default that
      is
      waivable under the Indenture,  (iii) exercise any right to
      rescind or annul a declaration that the principal of all the Debentures shall
      be
      due and payable or (iv) consent on behalf of all the Holders of the Capital
      Securities to any amendment, modification or termination of the Indenture or
      the
      Debentures where such consent shall be required; provided,
however, that, where a consent or action under the Indenture would
      require the consent or act of the holders of greater than a simple majority
      in
      principal amount of Debentures (a “Super Majority”) affected thereby, the
      Institutional Trustee may only give such consent or take such action at the
      written direction of the Holders of not less than the proportion in liquidation
      amount of the Capital Securities outstanding which the relevant Super Majority
      represents of the aggregate principal amount of the Debentures outstanding.
      If
      the Institutional Trustee fails to enforce its rights under the Debentures
      after
      the Holders of a Majority or Super Majority, as the case may be, in liquidation
      amount of such Capital Securities have so directed the Institutional Trustee,
      to
      the fullest extent permitted by law, a Holder of the Capital Securities may
      institute a legal proceeding directly against the Debenture Issuer to enforce
      the Institutional Trustee’s rights under the Debentures without first
      instituting any legal proceeding against the Institutional Trustee or any other
      person or entity.  Notwithstanding the foregoing, if an Event of
      Default has occurred and is continuing and such event is attributable to the
      failure of the Debenture Issuer to pay interest or premium, if any, on or
      principal of the Debentures on the date the interest, premium, if any, or
      principal is payable (or in the case of redemption, the redemption date), then
      a
      Holder of record of the Capital Securities may directly institute a proceeding
      for enforcement of payment, on or after the respective due dates specified
      in
      the Debentures, to such Holder directly of the principal of, or premium, if
      any,
      or interest on the Debentures having an aggregate principal amount equal to
      the
      aggregate liquidation amount of the Capital Securities of such
      Holder.  The Institutional Trustee shall notify all Holders of the
      Capital Securities of any default actually known to the Institutional Trustee
      with respect to the Debentures unless (x) such default has been cured prior
      to
      the giving of such notice or (y) the Institutional Trustee determines in good
      faith that the withholding of such notice is in the interest of the Holders
      of
      such Capital Securities, except where the default relates to the payment of
      principal of or interest on any of the Debentures.  Such notice shall
      state that such Indenture Event of Default also constitutes an Event of Default
      hereunder.  Except with respect to directing the time, method and
      place of conducting a proceeding for a remedy, the Institutional Trustee shall
      not take any of the actions described in clause (i), (ii) or (iii) above unless
      the Institutional Trustee has obtained an opinion of tax counsel to the effect
      that, as a result of such action, the Trust will not be classified as other
      than
      a grantor trust for United States federal income tax purposes.

     

    In
      the
      event the consent of the Institutional Trustee, as the holder of the Debentures
      is required under the Indenture with respect to any amendment, modification
      or
      termination of the Indenture, the Institutional Trustee shall request the
      written direction of the Holders of the Securities with respect to such
      amendment, modification or termination and shall vote with respect to such
      amendment, modification or termination as directed by a Majority in liquidation
      amount of the Securities voting together as a single class; provided,
however, that where a consent under the Indenture would require the
      consent of a Super Majority, the Institutional Trustee may only give such
      consent at the written direction of the Holders of not less than the proportion
      in liquidation amount of such Securities outstanding which the relevant Super
      Majority represents of the aggregate principal amount of the Debentures
      outstanding.  The Institutional Trustee shall not take any such action
      in accordance with the written directions of the Holders of the Securities
      unless the Institutional Trustee has obtained an opinion of tax counsel to
      the
      effect that, as a result of such action, the Trust will not be classified as
      other than a grantor trust for United States federal income tax
      purposes.

     

    A
      waiver
      of an Indenture Event of Default will constitute a waiver of the corresponding
      Event of Default hereunder.  Any required approval or direction of
      Holders of the Capital Securities may be given at a separate meeting of Holders
      of the Capital Securities convened for such purpose, at a meeting of all of
      the
      Holders of the Securities in the Trust or pursuant to written
      consent.  The Institutional Trustee will cause a notice of any meeting
      at which Holders of the Capital Securities are entitled to vote, or of any
      matter upon which action by written consent of such Holders is to be taken,
      to
      be mailed to each Holder of record of the Capital Securities.  Each
      such notice will include a statement setting forth the following information
      (i)
      the date of such meeting or the date by which such action is to be taken, (ii)
      a
      description of any resolution proposed for adoption at such meeting on which
      such Holders are entitled to vote or of such matter upon which written consent
      is sought and (iii) instructions for the delivery of proxies or
      consents.  No vote or consent of the Holders of the Capital Securities
      will be required for the Trust to redeem and cancel Capital Securities or to
      distribute the Debentures in accordance with the Declaration and the terms
      of
      the Securities.

     

    Notwithstanding
      that Holders of the Capital Securities are entitled to vote or consent under
      any
      of the circumstances described above, any of the Capital Securities that are
      owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the
      Holder thereof to vote or consent and shall, for purposes of such vote or
      consent, be treated as if such Capital Securities were not
      outstanding.

     

    In
      no
      event will Holders of the Capital Securities have the right to vote to appoint,
      remove or replace the Administrators, which voting rights are vested exclusively
      in the Sponsor as the Holder of all of the Common Securities of the
      Trust.  Under certain circumstances as more fully described in the
      Declaration, Holders of Capital Securities have the right to vote to appoint,
      remove or replace the Institutional Trustee and the Delaware
      Trustee.

     

    6.           Voting
      Rights - Common Securities.  (a)  Except as provided
      under Sections 6(b), 6(c) and 7 and as otherwise required by law and the
      Declaration, the Common Securities will have no voting rights.

     

    (b)           The
      Holders of the Common Securities are entitled, in accordance with Article IV
      of
      the Declaration, to vote to appoint, remove or replace any
      Administrators.

     

    (c)           Subject
      to Section 6.7 of the Declaration and only after each Event of Default (if
      any)
      with respect to the Capital Securities has been cured, waived or otherwise
      eliminated and subject to the requirements of the second to last sentence of
      this paragraph, the Holders of a Majority in liquidation amount of the Common
      Securities, voting separately as a class, may direct the time, method, and
      place
      of conducting any proceeding for any remedy available to the Institutional
      Trustee, or exercising any trust or power conferred upon the Institutional
      Trustee under the Declaration, including (i) directing the time, method, place
      of conducting any proceeding for any remedy available to the Debenture Trustee,
      or exercising any trust or power conferred on the Debenture Trustee with respect
      to the Debentures, (ii) waiving any past default and its consequences that
      are
      waivable under the Indenture, or (iii) exercising any right to rescind or annul
      a declaration that the principal of all the Debentures shall be due and payable,
      provided, however, that, where a consent or action under the
      Indenture would require a Super Majority, the Institutional Trustee may only
      give such consent or take such action at the written direction of the Holders
      of
      not less than the proportion in liquidation amount of the Common Securities
      which the relevant Super Majority represents of the aggregate principal amount
      of the Debentures outstanding.  Notwithstanding this Section 6(c), the
      Institutional Trustee shall not revoke any action previously authorized or
      approved by a vote or consent of the Holders of the Capital
      Securities.  Other than with respect to directing the time, method and
      place of conducting any proceeding for any remedy available to the Institutional
      Trustee or the Debenture Trustee as set forth above, the Institutional Trustee
      shall not take any action described in clause (i), (ii) or (iii) above, unless
      the Institutional Trustee has obtained an opinion of tax counsel to the effect
      that for the purposes of United States federal income tax the Trust will not
      be
      classified as other than a grantor trust on account of such
      action.  If the Institutional Trustee fails to enforce its rights
      under the Declaration, to the fullest extent permitted by law any Holder of
      the
      Common Securities may institute a legal proceeding directly against any Person
      to enforce the Institutional Trustee’s rights under the Declaration, without
      first instituting a legal proceeding against the Institutional Trustee or any
      other Person.

     

    Any
      approval or direction of Holders of the Common Securities may be given at a
      separate meeting of Holders of the Common Securities convened for such purpose,
      at a meeting of all of the Holders of the Securities in the Trust or pursuant
      to
      written consent.  The Administrators will cause a notice of any
      meeting at which Holders of the Common Securities are entitled to vote, or
      of
      any matter upon which action by written consent of such Holders is to be taken,
      to be mailed to each Holder of the Common Securities.  Each such
      notice will include a statement setting forth (i) the date of such meeting
      or
      the date by which such action is to be taken, (ii) a description of any
      resolution proposed for adoption at such meeting on which such Holders are
      entitled to vote or of such matter upon which written consent is sought and
      (iii) instructions for the delivery of proxies or consents.

     

    No
      vote
      or consent of the Holders of the Common Securities will be required for the
      Trust to redeem and cancel Common Securities or to distribute the Debentures
      in
      accordance with the Declaration and the terms of the Securities.

     

    7.           Amendments
      to Declaration and Indenture.  (a)  In addition to any
      requirements under Section 11.1 of the Declaration, if any proposed amendment
      to
      the Declaration provides for, or the Trustees otherwise propose to effect,
      (i)
      any action that would adversely affect the powers, preferences or special rights
      of the Securities, whether by way of amendment to the Declaration or otherwise,
      or (ii) the Liquidation of the Trust, other than as described in Section 7.1
      of
      the Declaration, then the Holders of outstanding Securities, voting together
      as
      a single 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 not less than a Majority in liquidation amount of the Securities
      affected thereby; provided, however, if any amendment or proposal
      referred to in clause (i) above would adversely affect only the Capital
      Securities or only the Common Securities, then only the affected 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 a Majority in liquidation
      amount of such class of Securities.

     

    (b)           In
      the event the consent of the Institutional Trustee as the holder of the
      Debentures is required under the Indenture with respect to any amendment,
      modification or termination of the Indenture or the Debentures, the
      Institutional Trustee shall request the written direction of the Holders of
      the
      Securities with respect to such amendment, modification or termination and
      shall
      vote with respect to such amendment, modification, or termination as directed
      by
      a Majority in liquidation amount of the Securities voting together as a single
      class; provided, however, that where a consent under the Indenture
      would require a Super Majority, the Institutional Trustee may only give such
      consent at the written direction of the Holders of not less than the proportion
      in liquidation amount of the Securities which the relevant Super Majority
      represents of the aggregate principal amount of the Debentures
      outstanding.

     

    (c)           Notwithstanding
      the foregoing, no amendment or modification may be made to the Declaration
      if
      such amendment or modification would (i) cause the Trust to be classified for
      purposes of United States federal income taxation as other than a grantor trust,
      (ii) reduce or otherwise adversely affect the powers of the Institutional
      Trustee or (iii) cause the Trust to be deemed an Investment Company which is
      required to be registered under the Investment Company Act.

     

    (d)           Notwithstanding
      any provision of the Declaration, the right of any Holder of the Capital
      Securities to receive payment of distributions and other payments upon
      redemption or otherwise, on or after their respective due dates, or to institute
      a suit for the enforcement of any such payment on or after such respective
      dates, shall not be impaired or affected without the consent of such
      Holder.  For the protection and enforcement of the foregoing
      provision, each and every Holder of the Capital Securities shall be entitled
      to
      such relief as can be given either at law or equity.

     

    8.           Pro
      Rata.  A reference in these terms of the Securities to any
      payment, distribution or treatment as being “Pro Rata” shall mean pro rata to
      each Holder of the Securities according to the aggregate liquidation amount
      of
      the Securities held by the relevant Holder in relation to the aggregate
      liquidation amount of all Securities outstanding unless, in relation to a
      payment, an Event of Default has occurred and is continuing, in which case
      any
      funds available to make such payment shall be paid first to each Holder of
      the
      Capital Securities Pro Rata according to the aggregate liquidation amount of
      the
      Capital Securities held by the relevant Holder relative to the aggregate
      liquidation amount of all Capital Securities outstanding, and only after
      satisfaction of all amounts owed to the Holders of the Capital Securities,
      to
      each Holder of the Common Securities Pro Rata according to the aggregate
      liquidation amount of the Common Securities held by the relevant Holder relative
      to the aggregate liquidation amount of all Common Securities
      outstanding.

     

    9.           Ranking.  The
      Capital Securities rank pari passu with, and payment thereon shall be
      made Pro Rata with, the Common Securities except that, where an Event of Default
      has occurred and is continuing, the rights of Holders of the Common Securities
      to receive payment of Distributions and payments upon liquidation, redemption
      and otherwise are subordinated to the rights of the Holders of the Capital
      Securities with the result that no payment of any Distribution on, or redemption
      price of, any Common Security, and no other payment on account of redemption,
      liquidation or other acquisition of Common Securities, shall be made unless
      payment in full in cash of all accumulated and unpaid Distributions on all
      outstanding Capital 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 Capital Securities then called
      for
      redemption, shall have been made or provided for, and all funds immediately
      available to the Institutional Trustee shall first be applied to the payment
      in
      full in cash of all Distributions on, or the redemption price of, the Capital
      Securities then due and payable.

     

    10.           Acceptance
      of Guarantee and Indenture.  Each Holder of the Capital Securities
      and the Common Securities, by the acceptance of such Securities, agrees to
      the
      provisions of the Guarantee, including the subordination provisions therein
      and
      to the provisions of the Indenture.

     

    11.           No
      Preemptive Rights.  The Holders of the Securities shall have no,
      and the issuance of the Securities is not subject to, preemptive or similar
      rights to subscribe for any additional securities.

     

    12.           Miscellaneous.  These
      terms constitute a part of the Declaration.  The Sponsor will provide
      a copy of the Declaration, the Guarantee, and the Indenture to a Holder without
      charge on written request to the Sponsor at its principal place of
      business.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A-1

     

    


     

    FORM
      OF CAPITAL SECURITY CERTIFICATE

     

    [FORM
      OF
      FACE OF SECURITY]

     

    THIS
      SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
      (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
      SECURITIES LAWS.  NEITHER THIS SECURITY NOR ANY INTEREST OR
      PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
      ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
      UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
      REQUIREMENTS OF THE SECURITIES ACT.  THE HOLDER OF THIS SECURITY BY
      ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
      ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO RULE 144A UNDER
      THE SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER REASONABLY BELIEVES IS
      A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
      OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
      IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) PURSUANT
      TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO
      AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
      (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
      ITS
      OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN “ACCREDITED INVESTOR,” FOR INVESTMENT
      PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
      DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D) PURSUANT TO ANOTHER
      AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
      SUBJECT TO THE DEBENTURE ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER,
      SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) ABOVE TO REQUIRE THE DELIVERY
      OF
      AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
      TO
      EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST,
      A
      COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE
      TRUST.  THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES
      THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.

     

    THE
      HOLDER OF THIS SECURITY BY ITS
      ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT WILL NOT ENGAGE IN
      HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
      COMPLIANCE WITH THE SECURITIES ACT.

     

    THE
      HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF 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 SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER
      IS
      ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
      PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1, 84-14, THE
      NON-FIDUCIARY SERVICE PROVIDER EXEMPTION UNDER SECTION 408(B)(17) OF ERISA
      OR
      ANOTHER APPLICABLE EXEMPTION.

     

    IN
      CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER TO THE
      REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY
      BE
      REQUIRED BY THE AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE
      TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.

     

    THIS
      SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
      LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
      THEREOF.  ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A
      LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF
      NO
      LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT
      TO BE
      THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO,
      THE
      RECEIPT OF DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL
      BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.

     

    


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    Certificate
      Number                                           [  ]                                Number
      of Capital Securities  [     ]

     

    Certificate
      Evidencing Capital Securities

     

    of

     

    BNC
      Statutory Trust III

     

    Floating
      Rate Capital Securities

     

    (liquidation
      amount $1,000 per Capital Security)

     

    BNC
      Statutory Trust III, a statutory trust created under the laws of the State
      of
      Delaware (the “Trust”), hereby certifies that HARE & CO. (the “Holder”) is
      the registered owner of [   ] capital securities of the Trust
      representing undivided beneficial interests in the assets of the Trust,
      designated the Floating Rate Capital Securities (liquidation amount $1,000
      per
      Capital Security) (the “Capital Securities”).  Subject to the
      Declaration (as defined below), the Capital 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.  The Capital Securities represented hereby are issued
      pursuant to, and the designation, rights, privileges, restrictions, preferences
      and other terms and provisions of the Capital Securities shall in all respects
      be subject to, the provisions of the Amended and Restated Declaration of Trust
      of the Trust, dated as of July 30, 2007, among Gregory K. Cleveland and Timothy
      J. Franz, as Administrators, Wilmington Trust Company, as Delaware Trustee,
      Wilmington Trust Company, as Institutional Trustee, BNCCORP, Inc., as Sponsor,
      and the holders from time to time of undivided beneficial interests in the
      assets of the Trust, including the designation of the terms of the Capital
      Securities as set forth in Annex I to the Declaration, as the same may be
      amended from time to time (the “Declaration”). Capitalized terms used herein but
      not defined shall have the meaning given them in the Declaration.  The
      Holder is entitled to the benefits of the Guarantee to the extent provided
      therein.  The Sponsor will provide a copy of the Declaration, the
      Guarantee, and the Indenture to the Holder without charge upon written request
      to the Sponsor at its principal place of business.

     

    By
      acceptance of this Certificate, the Holder is bound by the Declaration and
      is
      entitled to the benefits thereunder.

     

    By
      acceptance of this Certificate, the Holder agrees to treat, for United States
      federal income tax purposes, the Debentures as indebtedness and the Capital
      Securities as evidence of beneficial ownership in the Debentures.

     

    This
      Certificate and the Capital Securities evidenced hereby are governed by, and
      shall be construed in accordance with, the laws of the State of Delaware,
      without regard to principles of conflict of laws.

     

    This
      Certificate may contain more than one counterpart of the signature page and
      this
      Certificate may be executed and authenticated by the affixing of the signature
      of an Administrator on behalf of the Trust, and the signature of the
      Institutional Trustee providing authentication, to any of such counterpart
      signature pages.  All of such counterpart signature pages shall be
      read as though one, and they shall have the same force and effect as though
      the
      Trust had executed, and the Institutional Trustee had authenticated, a single
      signature page.

     

    


     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the Trust has duly executed this Certificate.

     

    
      	
               

            	
              BNC
                STATUTORY TRUST III

            


    

     

    
      	
               

            	
              By:________________________________

            


    

     

    
      	
               

            	
              Name:  Gregory
                K. Cleveland

            


    

     

    
      	
               

            	
              Title:
                Administrator

            


    

     

    
      	
               

            	
              Dated:
                ___________________________

            


    

     

    


     

    CERTIFICATE
      OF AUTHENTICATION

     

    This
      Certificate represents Capital Securities referred to in the within-mentioned
      Declaration.

     

    
      	
               

            	
              WILMINGTON
                TRUST COMPANY,

            


    

    not
      in
      its individual capacity but solely as the Institutional Trustee

    


     

    


     

    
      	
               

            	
              By:_______________________________Authorized
                Officer

            


    

    


    
      	
               

            	
              Dated:
                ___________________________

            


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    [FORM
      OF
      REVERSE OF SECURITY]

     

    Distributions
      payable on each Capital Security will be payable at a variable per annum rate
      of
      interest, which, with respect to any Distribution Period (as defined herein)
      will be equal to LIBOR (as defined in the Declaration) plus 1.40% (the “Coupon
      Rate”), such rate being the rate of interest payable on the Debentures to be
      held by the Institutional Trustee.  Except as set forth below in
      respect of an Extension Period, Distributions in arrears for more than one
      Distribution Period will bear interest thereon compounded quarterly at the
      applicable Coupon Rate for each such Distribution Period (to the extent
      permitted by applicable law).  The term “Distributions” as used herein
      includes cash distributions, any such compounded distributions and any
      Additional Interest payable on the Debentures unless otherwise
      stated.  A Distribution is payable only to the extent that payments
      are made in respect of the Debentures held by the Institutional Trustee and
      to
      the extent the Institutional Trustee has funds legally available in the Property
      Account therefor.  The amount of Distributions payable for any
      Distribution Period will be computed on the basis of a 360-day year and the
      actual number of days elapsed in the relevant Distribution Period.

     

    Except
      as
      otherwise described below, Distributions on the Capital Securities will be
      cumulative, will accrue from the date of original issuance and will be payable
      quarterly in arrears on January 1, April 1, July 1 and October 1 of each year,
      commencing on October 1, 2007 (each, a “Distribution Payment
      Date”).  The Debenture Issuer has the right under the Indenture to
      defer payments of interest on the Debentures by extending the interest payment
      period for up to 20 consecutive quarterly periods (each, an “Extension Period”)
      at any time and from time to time on the Debentures, subject to the conditions
      described below.  During any Extension Period, interest will continue
      to accrue on the Debentures, and interest on such accrued interest (such accrued
      interest and interest thereon referred to herein as “Deferred Interest”) will
      accrue at an annual rate equal to the Coupon Rate in effect for each such
      Extension Period, compounded quarterly from the date such Deferred Interest
      would have been payable were it not for the Extension Period, to the extent
      permitted by law.  No Extension Period may end on a date other than a
      Distribution Payment Date.  At the end of any such Extension Period,
      the Debenture Issuer shall pay all Deferred Interest then accrued and unpaid
      on
      the Debentures; provided, however, that no Extension Period may
      extend beyond the Maturity Date, Redemption Date or Special Redemption
      Date.  Prior to the termination of any Extension Period, the Debenture
      Issuer may further extend such period, provided, that such period
      together with all such previous and further consecutive extensions thereof
      shall
      not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
      Date,
      Redemption Date or Special Redemption Date.  Upon the termination of
      any Extension Period and upon the payment of all Deferred Interest, the
      Debenture Issuer may commence a new Extension Period, subject to the foregoing
      requirements. No interest or Deferred Interest (except any Additional Interest
      that may be due and payable) shall be due and payable during an Extension
      Period, except at the end thereof, but interest shall accrue upon each
      installment of interest that would otherwise have been due and payable during
      such Extension Period until such installment is paid.  If
      Distributions are deferred, the Distributions due shall be paid on the date
      that
      the related Extension Period terminates to Holders of the Securities as they
      appear on the books and records of the Trust on the record date immediately
      preceding such date.  Distributions on the Securities must be paid on
      the dates payable (after giving effect to any Extension Period) to the extent
      that the Trust has funds legally available for the payment of such distributions
      in the Property Account of the Trust.  The Trust’s funds available for
      Distribution to the Holders of the Securities will be limited to payments
      received from the Debenture Issuer.  The payment of Distributions out
      of moneys held by the Trust is guaranteed by the Guarantor pursuant to the
      Guarantee.

     

    The
      Capital Securities shall be redeemable as provided in the
      Declaration.

     




    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    ASSIGNMENT

     

    FOR
      VALUE
      RECEIVED, the undersigned assigns and transfers the Capital Securities evidenced
      by this Capital Security Certificate to:

     

     

     

    


     

    


     

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

     

    


     

    


     

    


     

    (Insert
      address and zip code of assignee),

    


    and
      irrevocably
      appoints                                                                                                                                         

    as
      agent
      to transfer the Capital Securities evidenced by this Capital Security
      Certificate on the books of the Trust.  The agent may substitute
      another to act for it, him or her.

     

    Date:                                                                

     

    Signature:                                                                           

     

    (Sign
      exactly as your name appears on the other side of this Capital Security
      Certificate)

     

    Signature
      Guarantee:1                                                                                                                     

     

    


     

    

      

    

      
      1           Signature
        must be guaranteed by an “eligible guarantor institution” that is a bank,
        stockbroker, savings and loan association or credit union meeting the
        requirements of the Security registrar, which requirements include membership
        or
        participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
        such other “signature guarantee program” as may be determined by the Security
        registrar in addition to, or in substitution for, STAMP, all in accordance
        with
        the Securities Exchange Act of 1934, as amended.

       

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      A-2

     

    


     

    FORM
      OF COMMON SECURITY 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.

     

    EXCEPT
      AS
      SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY
      MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    Certificate
      Number                                           1                      Number
      of Common Securities 464

     

    Certificate
      Evidencing Common Securities

     

    of

     

    BNC
      Statutory Trust III

     

    BNC
      Statutory Trust III, a statutory trust created under the laws of the State
      of
      Delaware (the “Trust”), hereby certifies that BNCCORP, Inc. (the “Holder”) is
      the registered owner of [  ] common securities of the Trust
      representing undivided beneficial interests in the assets of the Trust
      (liquidation amount $1,000 per Common Security)(the “Common
      Securities”).  The Common Securities represented hereby are issued
      pursuant to, and the designation, rights, privileges, restrictions, preferences
      and other terms and provisions of the Common Securities shall in all respects
      be
      subject to, the provisions of the Amended and Restated Declaration of Trust
      of
      the Trust, dated as of July 30, 2007, among Gregory K. Cleveland and Timothy
      J.
      Franz, as Administrators, Wilmington Trust Company, as Delaware Trustee,
      Wilmington Trust Company, as Institutional Trustee, the Holder, as Sponsor,
      and
      the holders from time to time of undivided beneficial interests in the assets
      of
      the Trust, including the designation of the terms of the Common Securities
      as
      set forth in Annex I to the Declaration, as the same may be amended from time
      to
      time (the “Declaration”).  Capitalized terms used herein but not
      defined shall have the meaning given them in the Declaration.  The
      Sponsor will provide a copy of the Declaration and the Indenture to the Holder
      without charge upon written request to the Sponsor at its principal place of
      business.

     

    As
      set
      forth in the Declaration, when an Event of Default has occurred and is
      continuing, the rights of Holders of Common Securities to payment in respect
      of
      Distributions and payments upon Liquidation, redemption or otherwise are
      subordinated to the rights of payment of Holders of the Capital
      Securities.

     

    By
      acceptance of this Certificate, the Holder is bound by the Declaration and
      is
      entitled to the benefits thereunder.

     

    By
      acceptance of this Certificate, the Holder agrees to treat, for United States
      federal income tax purposes, the Debentures as indebtedness and the Common
      Securities as evidence of undivided beneficial ownership in the
      Debentures.

     

    This
      Certificate and the Common Securities evidenced hereby are governed by, and
      shall be construed in accordance with, the laws of the State of Delaware,
      without regard to principles of conflict of laws.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the Trust has executed this Certificate this ___ day of ____,
      20__.

     

    
      	
               

            	
              BNC
                STATUTORY TRUST III

            


    

     

    
      	
               

            	
              By:______________________________

            


    

     

    
      	
               

            	
              Name:  Gregory
                K. Cleveland

            


    

     

    
      	
               

            	
              Title:
                Administrator

            


    

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    [FORM
      OF
      REVERSE OF SECURITY]

     

    Distributions
      payable on each Common Security will be identical in amount to the Distributions
      payable on each Capital Security, which is at a variable per annum rate of
      interest, which, with respect to any Distribution Period (as defined herein)
      will be equal to LIBOR (as defined in the Declaration) plus 1.40% (the “Coupon
      Rate”), such rate being the rate of interest payable on the Debentures to be
      held by the Institutional Trustee.  Except as set forth below in
      respect of an Extension Period, Distributions in arrears for more than one
      Distribution Period will bear interest thereon compounded quarterly at the
      applicable Coupon Rate for each such Distribution Period (to the extent
      permitted by applicable law).  The term “Distributions” as used herein
      includes cash distributions, any such compounded distributions and any
      Additional Interest payable on the Debentures unless otherwise
      stated.  A Distribution is payable only to the extent that payments
      are made in respect of the Debentures held by the Institutional Trustee and
      to
      the extent the Institutional Trustee has funds legally available in the Property
      Account therefor.  The amount of Distributions payable for any
      Distribution Period will be computed on the basis of a 360-day year and the
      actual number of days elapsed in the relevant Distribution Period.

     

    Except
      as
      otherwise described below, Distributions on the Common Securities will be
      cumulative, will accrue from the date of original issuance and will be payable
      quarterly in arrears on January 1, April 1, July 1 and October 1 of each year,
      commencing on October 1, 2007 (each, a “Distribution Payment
      Date”).  The Debenture Issuer has the right under the Indenture to
      defer payments of interest on the Debentures by extending the interest payment
      period for up to 20 consecutive quarterly periods (each, an “Extension Period”)
      at any time and from time to time on the Debentures, subject to the conditions
      described below. During any Extension Period, interest will continue to accrue
      on the Debentures, and interest on such accrued interest (such accrued interest
      and interest thereon referred to herein as “Deferred Interest”) will accrue at
      an annual rate equal to the Coupon Rate in effect for each such Extension
      Period, compounded quarterly from the date such Deferred Interest would have
      been payable were it not for the Extension Period, to the extent permitted
      by
      law.  No Extension Period may end on a date other than a Distribution
      Payment Date.  At the end of any such Extension Period, the Debenture
      Issuer shall pay all Deferred Interest then accrued and unpaid on the
      Debentures; provided, however, that no Extension Period may extend
      beyond the Maturity Date, Redemption Date or Special Redemption
      Date.  Prior to the termination of any Extension Period, the Debenture
      Issuer may further extend such period, provided, that such period
      together with all such previous and further consecutive extensions thereof
      shall
      not exceed 20 consecutive quarterly periods, or extend beyond the Maturity
      Date,
      Redemption Date or Special Redemption Date.  Upon the termination of
      any Extension Period and upon the payment of all Deferred Interest, the
      Debenture Issuer may commence a new Extension Period, subject to the foregoing
      requirements. No interest or Deferred Interest (except any Additional Interest
      that may be due and payable) shall be due and payable during an Extension
      Period, except at the end thereof, but interest shall accrue upon each
      installment of interest that would otherwise have been due and payable during
      such Extension Period until such installment is paid.  If
      Distributions are deferred, the Distributions due shall be paid on the date
      that
      the related Extension Period terminates to Holders of the Securities as they
      appear on the books and records of the Trust on the record date immediately
      preceding such date.  Distributions on the Securities must be paid on
      the dates payable (after giving effect to any Extension Period) to the extent
      that the Trust has funds legally available for the payment of such distributions
      in the Property Account of the Trust.  The Trust’s funds available for
      Distribution to the Holders of the Securities will be limited to payments
      received from the Debenture Issuer.  The payment of Distributions out
      of moneys held by the Trust is guaranteed by the Guarantor pursuant to the
      Guarantee.

     

    The
      Common Securities shall be redeemable as provided in the
      Declaration.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    ASSIGNMENT

     

    FOR
      VALUE
      RECEIVED, the undersigned assigns and transfers the Common Securities evidenced
      by this Common Security Certificate to:

     

    


     

    


     

    


     

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

     

    


     

    


     

    


     

    (Insert
      address and zip code of assignee),

     

    and
      irrevocably
      appoints                                                                 as
      agent to transfer the Common Securities evidenced by this Common Security
      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 Common Security
      Certificate)

     

    Signature
      Guarantee:2                                                                                                

    


    


     

    

      

    

      
      2           Signature
        must be guaranteed by an “eligible guarantor institution” that is a bank,
        stockbroker, savings and loan association or credit union, meeting the
        requirements of the Security registrar, which requirements include membership
        or
        participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
        such other “signature guarantee program” as may be determined by the Security
        registrar in addition to, or in substitution for, STAMP, all in accordance
        with
        the Securities Exchange Act of 1934, as amended.

       

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      B

     

    FORM
      OF
      TRANSFEREE CERTIFICATE

     

    TO
      BE
      EXECUTED BY TRANSFEREES OTHER THAN QIBS

     

    __________,
      2007

     

    BNCCORP,
      Inc.

    BNC
      Statutory Trust III

    322
      East
      Main

    Bismarck,
      North Dakota 58501

    


    
      	
              Re:

            	
              Purchase
                of $1,000 stated liquidation amount of Floating Rate Capital
                Securities

            


    

     

    
      	
               

            	
              (the
                “Capital Securities”) of BNC Statutory Trust
                III

            


    

     

    Ladies
      and Gentlemen:

     

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

     

    1.           We
      understand that the Floating Rate Capital Securities (the “Capital Securities”)
      of BNC Statutory Trust III (the “Trust”) (including the guarantee (the
“Guarantee”) of BNCCORP, Inc. (the “Company”) executed in connection therewith)
      and the Floating Rate Junior Subordinated Debt Securities due 2037 of the
      Company (the “Subordinated Debt Securities”)  (the Capital Securities,
      the Guarantee and the Subordinated Debt Securities 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
      Capital Securities that, if we decide to offer, sell or otherwise transfer
      any
      such Capital Securities, such offer, sale or transfer will be made only (a)
      to
      the Company or the Trust, (b) pursuant to Rule 144A under the Securities Act,
      to
      a person we reasonably believe is a qualified institutional buyer under Rule
      144A (a “QIB”) that purchases for its own account or for the account of a QIB
      and to whom notice is given that the transfer is being made in reliance on
      Rule
      144A, (c) pursuant to an exemption from registration, to an “accredited
      investor” within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule
      501 under the Securities Act that is acquiring Capital Securities for its own
      account or for the account of such an accredited investor for investment
      purposes and not with a view to, or for offer or sale in connection with, any
      distribution thereof in violation of the Securities Act, or (d) pursuant to
      another available exemption from the registration requirements of the Securities
      Act, and in each of the foregoing cases in accordance with any applicable state
      securities laws and any requirements of law that govern the disposition of
      our
      property. The foregoing restrictions on resale will not apply subsequent to
      the
      date on which, in the written opinion of counsel, the Capital Securities are
      not
“restricted securities” within the meaning of Rule 144 under the Securities
      Act.  If any resale or other transfer of the Capital Securities is
      proposed to be made pursuant to clause (c) or (d) above, the transferor shall
      deliver a letter from the transferee substantially in the form of this letter
      to
      the Institutional Trustee as Transfer Agent, which shall provide as applicable,
      among other things, that the transferee is an “accredited investor” within the
      meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
      Act that is acquiring such Securities for investment purposes and not for
      distribution in violation of the Securities Act. We acknowledge on our behalf
      and on behalf of any investor account for which we are purchasing Securities
      that the Trust and the Company reserve the right prior to any offer, sale or
      other transfer pursuant to clause (c) or (d) to require the delivery of any
      opinion of counsel, certifications and/or other information satisfactory to
      the
      Trust and the Company.  We understand that the certificates for any
      Capital Security that we receive will bear a legend substantially to the effect
      of the foregoing.

     

    2.           We
      are an “accredited investor” within the meaning of subparagraph (a) (1), (2),
      (3) or (7) of Rule 501 under the Securities Act purchasing for our own account
      or for the account of such an “accredited investor,” and we are acquiring the
      Capital Securities for investment purposes and not with view to, or for offer
      or
      sale in connection with, any distribution in violation of the Securities Act,
      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
      Capital Securities, and we and any account for which we are acting are each
      able
      to bear the economic risks of our or its investment.

     

    3.           We
      are acquiring the Capital 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 Capital 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 Capital Securities or any Subordinated Debt
      Securities, we will acquire such Capital Securities having an aggregate stated
      liquidation amount of not less than $100,000 or such Subordinated Debt
      Securities 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 either (A) are not a fiduciary of a pension, profit-sharing
      or other employee benefit 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 (a “Plan”), or an entity whose
      assets include “plan assets” by reason of any Plan’s investment in the entity
      and are not purchasing the Capital Securities on behalf of or with “plan assets”
by reason of any Plan’s investment in the entity and are not purchasing the
      Capital Securities on behalf of or with “plan assets” of any Plan or (B) are
      eligible for the exemptive relief available under one or more of the following
      prohibited transaction class exemptions (“PTCEs”) issued by the U.S. Department
      of Labor:  PTCE 96-23, 95-60, 91-38, 90-1 or 84-14, or the
      non-fiduciary service provider exemption under Section 408(b)(17) of ERISA
      or
      some other applicable exemption.

     

    6.           We
      acknowledge that each Plan, by its purchase of the Capital Securities, will
      be
      deemed to have directed the Trust to invest in the junior subordinated debt
      securities of the Company, and to have consented to the appointment of the
      institutional trustee of the Trust.

     

    7.           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 our acknowledgments, representations,
      warranties and agreements are no longer accurate, we shall promptly notify
      the
      Purchaser (as defined in the Purchase Agreement or Placement Agreement, as
      applicable). If we are acquiring any Capital 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 agreements on behalf of
      each
      such investor account.

     

    You
      are
      entitled to rely upon this letter and are irrevocably authorized to produce
      this
      letter or a copy hereof to any interested party in any administrative or legal
      proceeding or official inquiry with respect to the matters covered
      hereby.

     

    


    


    
      	
               

            	 


    

    (Name
      of
      Purchaser)

     

    
      	
               

            	
              By:

            


    

     

    
      	
               

            	
              Date:

            	 


    

     

    Upon
      transfer, the Capital Securities should be registered in the name of the new
      beneficial owner as follows.

     

    Name:                                                                                     

     

    Address:                                                                           

     

    Taxpayer
      ID
      Number:                                                      

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    EXHIBIT
      C

     

    FORM
      OF
      TRANSFEROR CERTIFICATE

     

    TO
      BE
      EXECUTED FOR QIBs

     

    __________,
      2007

     

    BNCCORP,
      Inc.

    BNC
      Statutory Trust III

    322
      East
      Main

    Bismarck,
      North Dakota 58501

    


    
      	
              Re:

            	
              Purchase
                of $1,000 stated liquidation amount of Floating Rate Capital
                Securities

            


    

     

    
      	
               

            	
              (the
                “Capital Securities”) of BNC Statutory Trust
                III

            


    

     

    Reference
      is hereby made to the Amended and Restated Declaration of Trust of BNC Statutory
      Trust III, dated as of July 30, 2007 (the “Declaration”), among Gregory K.
      Cleveland and Timothy J. Franz, as Administrators, Wilmington Trust Company,
      as
      Delaware Trustee, Wilmington Trust Company, as Institutional Trustee, BNCCORP,
      Inc., as Sponsor, and the holders from time to time of undivided beneficial
      interests in the assets of BNC Statutory Trust III.  Capitalized terms
      used but not defined herein shall have the meanings given them in the
      Declaration.

     

    This
      letter relates to $[    ] aggregate liquidation amount of
      Capital Securities which are held in the name of [name of transferor] (the
      “Transferor”).

     

    In
      accordance with Section 8.2(b) of the Declaration, the Transferor does hereby
      certify that such Capital Securities are being transferred in accordance with
      (i) the transfer restrictions set forth in the Capital Securities and (ii)
      Rule
      144A under the Securities Act (“Rule 144A”), to a transferee that the Transferor
      reasonably believes is purchasing the Capital Securities for its own account
      or
      an account with respect to which the transferee exercises sole investment
      discretion and the transferee and any such account is a “qualified institutional
      buyer” within the meaning of Rule 144A, in a transaction meeting the
      requirements of Rule 144A and in accordance with applicable securities laws
      of
      any state of the United States or any other jurisdiction.

     

    You
      are
      entitled to rely upon this letter and are irrevocably authorized to produce
      this
      letter or a copy hereof to any interested party in any administrative or legal
      proceeding or official inquiry with respect to the matters covered
      hereby.

     

    
      	
               

            	 


    

    (Name
      of
      Transferor)

     

    
      	
               

            	
              By:

            


    

    Name:                                                                

     

    Title:                                                                

     

    Date:                                                           


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

              

                  EXHIBIT
            D      
    

      

    


    ADMINISTRATOR’S
      CERTIFICATE

    OF

    BNC
      STATUTORY TRUST III

    


    Pursuant
      to Section 2.6(a)(i)(P) of the
      Amended and Restated Declaration of Trust of BNC Statutory Trust III (the
“Trust”) among BNCCORP, Inc. as Sponsor, Wilmington Trust Company, as
      Institutional Trustee, Wilmington Trust Company, as Delaware Trustee, the
      Administrators named therein, and the holders from time to time of beneficial
      interests in the assets of the Trust, dated as of July 30, 2007 (as modified,
      supplemented or amended from time to time, the “Trust Agreement”), the
      undersigned (on behalf of the Trust) hereby certifies that he/she is an
      Administrator of the Trust and that, to his/her knowledge under the terms of
      the
      Trust Agreement, the Trust has complied (without regard to any period of grace
      or requirement of notice provided under the Trust Agreement) with all conditions
      and covenants under the Trust Agreement for the year 20__.

    


    Capitalized
      terms used herein, and not
      otherwise defined herein, have the respective meanings ascribed thereto in
      the
      Trust Agreement.

    


    IN
      WITNESS WHEROF, the undersigned has
      executed this Administrator’s Certificate as of __________, 20__.

    


    


    
      	 	 	 
	 	
              as
                Administrator