EX-4.4



 





Exhibit 4.4




AMENDED AND RESTATED DECLARATION




OF TRUST




LNB TRUST II




Dated as of May 9, 2007




(9) LNB Bancorp, Inc.


 









 





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
	 	 	15	 
	SECTION 2.8. Powers and Duties of the Institutional Trustee
	 	 	15	 
	SECTION 2.9. Certain Duties and Responsibilities of the Trustees and the
	 	 	17	 
	Administrators

	 	 	 	 
	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	 






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(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 4.6. Initial Delaware Trustee
	 	 	26	 
	SECTION 4.7. Appointment, Removal and Resignation of the Trustees and the Administrator
	 	 	26	 
	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
	 	 	30	 
	SECTION 6.1. General Provisions Regarding Securities
	 	 	30	 
	SECTION 6.2. Paying Agent, Transfer Agent, Calculation Agent and Registrar
	 	 	31	 
	SECTION 6.3. Form and Dating
	 	 	31	 
	SECTION 6.4. Book-Entry Capital Securities
	 	 	32	 
	SECTION 6.5. Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	34	 
	SECTION 6.6. Temporary Securities
	 	 	34	 
	SECTION 6.7. Cancellation
	 	 	34	 
	SECTION 6.8. Rights of Holders; Waivers of Past Defaults
	 	 	34	 
	ARTICLE VII DISSOLUTION AND TERMINATION OF TRUST
	 	 	36	 
	SECTION 7.1. Dissolution and Termination of Trust
	 	 	36	 
	ARTICLE VIII TRANSFER OF INTERESTS
	 	 	37	 
	SECTION 8.1. General
	 	 	37	 
	SECTION 8.2. Transfer Procedures and Restrictions
	 	 	38	 
	SECTION 8.3. Deemed Security Holders
	 	 	41	 
	ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
	 	 	42	 
	SECTION 9.1. Liability
	 	 	42	 







ii









 





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(continued)





	 	 	 	 	 
	 	 	Page	 
	SECTION 9.2. Exculpation
	 	 	42	 
	SECTION 9.3. Fiduciary Duty
	 	 	43	 
	SECTION 9.4. Indemnification
	 	 	43	 
	SECTION 9.5. Outside Businesses
	 	 	46	 
	SECTION 9.6. Compensation; Fee
	 	 	47	 
	ARTICLE X ACCOUNTING
	 	 	47	 
	SECTION 10.1. Fiscal Year
	 	 	47	 
	SECTION 10.2. Certain Accounting Matters
	 	 	47	 
	SECTION 10.3. Banking
	 	 	48	 
	SECTION 10.4. Withholding
	 	 	48	 
	ARTICLE XI AMENDMENTS AND MEETINGS
	 	 	49	 
	SECTION 11.1. Amendments
	 	 	49	 
	SECTION 11.2. Meetings of the Holders of the Securities; Action by Written Consent
	 	 	51	 
	ARTICLE XII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
	 	 	52	 
	SECTION 12.1. Representations and Warranties of Institutional Trustee
	 	 	52	 
	SECTION 12.2. Representations and Warranties of Delaware Trustee
	 	 	53	 
	ARTICLE XIII MISCELLANEOUS
	 	 	54	 
	SECTION 13.1. Notices
	 	 	54	 
	SECTION 13.2. Governing Law
	 	 	55	 
	SECTION 13.3. Submission to Jurisdiction
	 	 	55	 
	SECTION 13.4. Intention of the Parties
	 	 	56	 
	SECTION 13.5. Headings
	 	 	56	 
	SECTION 13.6. Successors and Assigns
	 	 	56	 
	SECTION 13.7. Partial Enforceability
	 	 	56	 
	SECTION 13.8. Counterparts
	 	 	56	 






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(continued)





	 	 	 	 	 
	 	 	Page	 
	ANNEXES AND EXHIBITS
	 	 	 	 
	ANNEX I Terms of Capital Securities and Common Securities
	 	 	 	 
	EXHIBIT A-1 Form of Capital Security Certificate
	 	 	 	 
	EXHIBIT A-2 Form of Common Security Certificate
	 	 	 	 







iv









 








AMENDED AND RESTATED DECLARATION OF TRUST




OF




LNB Trust II




May 9, 2007




   AMENDED AND RESTATED DECLARATION OF TRUST (this “Declaration”), dated and effective as of May
9, 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, the Administrators and the Sponsor established LNB Trust II
(the “Trust”), a statutory trust under the Statutory Trust Act (as defined herein), pursuant to a
Declaration of Trust, dated as of May 7, 2007 (the “Original Declaration”), and a Certificate of
Trust filed with the Secretary of State of the State of Delaware on May 7, 2007, for the sole
purpose of issuing and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in the Debentures (as defined herein) of
the Debenture Issuer (as defined herein) in connection with the issuance of the Capital Securities
(as defined herein);



   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 1.01. Definitions. Unless the context otherwise requires:




          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;




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




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


(9) LNB Bencorp, Inc.


 









 








          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;




          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




          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 Daniel E. Klimas and Sharon L. Churchill, 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.



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



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



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



          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




          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 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 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.



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




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



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   “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 Security Certificate” means a definitive Certificate registered in the name of the
Holder representing Capital Securities, which shall be substantially in the form attached hereto as
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 United States 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
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 919 North Market Street Suite 1600 Wilmington, DE
19801, Attention: Corporate Trust Division.



   “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) the Trust’s Affiliates; and (b)
any Holder of Securities.



   “Debenture Issuer” means LNB Bancorp, Inc., a financial holding company incorporated in Ohio,
in its capacity as issuer of the Debentures under the Indenture.



   “Debenture Trustee” means Wells Fargo Bank, National Association, a national banking
association with its principal place of business in the State of Delaware, 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 Junior Subordinated Debt Securities due June 15, 2037 to be issued by
the Debenture Issuer under the Indenture.



   “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



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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 applicable during 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.



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



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



   “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 Payment Period” means the period from and including a Distribution Payment Date,
or in the case of the first Distribution Payment 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 Payment Period, the Redemption Date, Special Redemption Date or Maturity Date
(each as defined in the Indenture), as the case may be, for the related Debentures.



   “DTC” means The Depository Trust Company or any successor thereto.



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



   “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.



   “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.



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



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



   “Guarantee” means the Guarantee Agreement, dated as of May 9, 2007, of the Sponsor in respect
of the Capital Securities.



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   “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 May 9, 2007, among 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” means the initial purchaser of the Capital Securities.



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



   “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.



   “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 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.



   “Notice” has the meaning set forth in Section 2.11 of the Indenture.



   “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 statement that each officer signing the Officers’ Certificate has read the covenant or
condition and the definitions relating thereto;

-5-









 









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




          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




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



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




   “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.



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



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



   “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.



-6-









 





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



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



   “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, as applicable.



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



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



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



   “Sponsor” means LNB Bancorp, Inc., a financial holding company that is a U.S. Person
incorporated in Ohio, 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.



   “Transfer Notice” has the meaning set forth in Section 8.2(e).



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



   “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.



-7-









 





   “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.



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



ARTICLE II




ORGANIZATION




     SECTION 2.01. Name. The Trust is named “LNB Trust II,” 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 2.02. 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 457 Broadway, Lorain, Ohio 44052. 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 2.03. 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 to acquire the Debentures, (c) to facilitate direct
investment in the assets of the Trust through issuance of the Common Securities and the Capital
Securities and (d) 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 2.04. 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 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 2.05. Title to Property of the Trust. Except as provided in Section 2.6(g) and
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 



-8-









 




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 2.06. Powers and Duties of the Trustees and the Administrators. 




          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:





     (a) 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:




     (1) the issuance and sale of the Securities;




     (2) 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;




     (3) 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, a Debenture subscription
agreement between the Trust and the Sponsor and a Common Securities
subscription agreement between the Trust and the Sponsor;




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




     (5) 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;




     (6) 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;



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




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




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




     (10) 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;




     (11) 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);




     (12) 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;




     (13) 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;




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




     (15) 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;




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




     (17) to give the certificate required by § 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by an Administrator; and



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     (18) 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.




     (b) 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:




     (1) the establishment of the Property Account;




     (2) the receipt of the Debentures;




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




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




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




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




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




     (8) 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;




     (9) 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);




     (10) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust’s valid existence, rights,



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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




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




     (c) 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)(F) and (G) 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.




          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):





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




     (b) 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 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



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the applicable laws of any such States in connection with the sale of the
Capital Securities; and




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



          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 (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.




          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.




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




          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.




          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.





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     SECTION 2.07. 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:



          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;




          acquire any assets other than as expressly provided herein;




          possess Trust Property for other than a Trust purpose;




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




          possess any power or otherwise act in such a way as to vary the Trust Property or the terms of
the Securities;




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




          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 2.08. Powers and Duties of the Institutional Trustee. 




          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.




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




          The Institutional Trustee shall:




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     (a) establish and maintain a segregated non-interest bearing trust account (the
“Property Account”) in the United States (as defined in Treasury Regulations §
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;




     (b) 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




     (c) 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.



          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.




          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, on or principal of the
Debentures on the date such interest, 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.




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





     (a) 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



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Securities and this Declaration (including Annex I) and the certificate of
cancellation referenced in Section 7.1(b) has been filed; or




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



          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.




          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.




     SECTION 2.09. Certain Duties and Responsibilities of the Trustees and the Administrators.




          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 6.8), 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.




          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 or bad faith. 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 or bad faith. To the extent that, at law or in equity, a
Trustee or an Administrator has duties and liabilities relating to the Trust or to the Holders,
such Trustee or Administrator shall not be liable to the Trust or to any Holder for such Trustee’s
or


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Administrator’s 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 the Administrators
or the Trustees otherwise existing at law or in equity, are agreed by the Sponsor and the Holders
to replace such other duties and liabilities of the Administrators or the Trustees.




          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 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.




          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 or bad faith with respect to matters that are within the authority of the Institutional
Trustee under this Declaration, except that:





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




     (b) 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;




     (c) 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;




     (d) 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



-17-









 







Institutional Trustee pursuant to Section 2.8(c)(í) and except to the extent
otherwise required by law; and




     (e) 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.



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



          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;




          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, willful misconduct or bad faith;




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




          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;




          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;




          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


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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;




          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 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;




          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;




          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;




          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;




          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;




          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;


-19-









 








          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) or 5.01 (b) 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;




          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




          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.



-20-









 





     SECTION 2.14. Duration of Trust. The Trust, unless dissolved pursuant to the provisions
of Article VII hereof, shall have existence for thirty-five (35) years from the Closing Date.



SECTION 2.15. Mergers.




          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
3 of Annex I.




          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:





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




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




     (2) 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;




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




     (c) 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;




     (d) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not cause the rating, if any, 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;




     (e) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and



-21-









 







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);




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




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




     (1) 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);




     (2) 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




     (3) 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;




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




     (i) 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.



          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 3.01. 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 3.02. Responsibilities of the Sponsor. In connection with the issue and sale of
the Capital Securities, the Sponsor shall have the exclusive right and responsibility and sole
decision to engage in, or direct the Administrators to engage in, the following activities:



     to determine the States in which to take appropriate action to qualify or register for sale of
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;



          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




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




ARTICLE IV




TRUSTEES AND ADMINISTRATORS




SECTION 4.01. Number of Trustees. The number of Trustees initially shall be two, and:




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




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



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


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          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 4.03. Institutional Trustee; Eligibility. 




          There shall at all times be one Trustee which shall act as Institutional Trustee which shall:





     (a) not be an Affiliate of the Sponsor;




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




     (c) 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.



          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.




          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.




          The initial Institutional Trustee shall be Wells Fargo Bank, National Association.




     SECTION 4.04. 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.



     SECTION 4.05. 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



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of the Administrators may be exercised by, or with the consent of, any one such Administrator
acting alone.



     SECTION 4.06. Initial Delaware Trustee. The initial Delaware Trustee shall be Wells Fargo
Delaware Trust Company.



     SECTION 4.07. Appointment, Removal and Resignation of the Trustees and the Administrators.




          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.




          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, except
that Delaware Trustee’s successor shall be appointed by Holders of a Majority in liquidation amount
of the Common Securities. 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.




          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


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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.




          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.




          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 (provided the Institutional Trustee satisfies the requirements of a
Delaware Trustee as set forth in Section 4.2) 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”).




          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 (a) 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 (b) 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.




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




          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.




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          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.




     SECTION 4.08. 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 4.09. 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.



SECTION 4.11. Delegation of Power.




          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


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U.S. Person his or her power for the purpose of executing any documents, instruments or other
writings contemplated in Section 2.6.




          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 5.01. 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 tax taxes, as determined by the Administrators in a written notice to the Institutional
Trustee.



ARTICLE VI




ISSUANCE OF SECURITIES




SECTION 6.01. General Provisions Regarding Securities. 




          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 Annex I
(the “Capital Securities”), and one series of common securities, evidenced by a




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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.




          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 Security, 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 authenticated by the manual signature of
an Authorized Officer of the Institutional Trustee. Such signature shall be conclusive evidence
that the Capital Security has been authenticated under this Declaration. Upon written order of the
Trust signed by one Administrator, the Institutional Trustee shall authenticate 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 the Capital Securities. A Common Security
need not be so authenticated and shall be valid upon execution by one or more Administrators.




          The Capital Securities shall be, except as provided in Section 6.4, Book-Entry Capital
Securities issued in the form of one or more Global Capital Securities registered in the name of
the Depositary, or its nominee and deposited with the Depositary or a custodian for the Depositary
for credit by the Depositary to the respective accounts of the Depositary Participants thereof (or
such other accounts as they may direct).




          The 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.




          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.




          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 6.02. Paying Agent, Transfer Agent, Calculation Agent and Registrar. 




          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


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Securities may be presented for registration of transfer or exchange (the “Transfer Agent”).
The Trust shall keep or cause to be kept at such office or agency a register for the purpose of
registering Securities and transfers and exchanges of Securities, such 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.




          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 6.03. Form and Dating. 




          The Capital Securities 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 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. The Certificates 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 shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms of Securities 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 a stated liquidation amount of not
less than $100,000 and multiples of $1,000 in excess thereof.




          The Capital Securities sold by the Trust to the Initial Purchasers pursuant to the Purchase
Agreement shall be issued in the form of a Global Capital Security, registered in the name of the
Depositary, without coupons and with the Restricted Securities Legend.




     SECTION 6.04. Book-Entry Capital Securities. 



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          A Global Capital Security may be exchanged, in whole or in part, for Definitive Capital
Securities Certificates registered in the names of Owners only if such exchange complies with
Article VIII and (i) the Depositary advises the Administrators and the Institutional Trustee in
writing that the Depositary is no longer willing or able to properly discharge its responsibilities
with respect to the Global Capital Security, and no qualified successor is appointed by the
Administrators within ninety (90) days of receipt of such notice, (ii) the Depositary ceases to be
a clearing agency registered under the Exchange Act and the Administrators fail to appoint a
qualified successor within ninety (90) days of obtaining knowledge of such event, (iii) the
Administrators at their option advise the Institutional Trustee in writing that the Trust elects to
terminate the book-entry system through the Depositary or (iv) an Indenture Event of Default has
occurred and is continuing. Upon the occurrence of any event specified in clause (i), (ii), (iii)
or (iv) above, the Administrators shall notify the Depositary and instruct the Depositary to notify
all Owners and the Institutional Trustee of the occurrence of such event and of the availability of
Definitive Capital Securities Certificates to Owners requesting the same. Upon the issuance of
Definitive Capital Securities Certificates, the Administrators and the Institutional Trustee shall
recognize the Holders of the Definitive Capital Securities Certificates as Holders.
Notwithstanding the foregoing, if an Owner wishes at any time to transfer an interest in such
Global Capital Security to a Person other than a QIB, such transfer shall be effected, subject to
the Applicable Depository Procedures, in accordance with the provisions of this Section 6.4 and
Article VIII, and the transferee shall receive a Definitive Capital Securities Certificate in
connection with such transfer. A holder of a Definitive Capital Securities Certificate that is a
QIB may upon request, and in accordance with the provisions of this Section 6.4 and Article VIII,
exchange such Definitive Capital Securities Certificate for a beneficial interest in a Global
Capital Security.




          If any Global Capital Security is to be exchanged for Definitive Capital Securities
Certificates or canceled in part, or if any Definitive Capital Securities Certificate is to be
exchanged in whole or in part for any Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for exchange or cancellation as provided in this Section 6.4 and
Article VIII or (ii) the aggregate liquidation amount represented by such Global Capital Security
shall be reduced, subject to Section 6.3, or increased by an amount equal to the liquidation amount
represented by that portion of the Global Capital Security to be so exchanged or canceled, or equal
to the liquidation amount represented by such Definitive Capital Securities Certificates to be so
exchanged for any Global Capital Security, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the Institutional Trustee, in
accordance with the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records. Upon any such
surrender to the Administrators or the Registrar of any Global Capital Security or Securities by
the Depositary, accompanied by registration instructions, the Administrators, or any one of them,
shall execute the Definitive Capital Securities Certificates in accordance with the instructions of
the Depositary. None of the Registrar, Administrators, or the Institutional Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely on, and shall be
fully protected in relying on, such instructions.




          Every Definitive Capital Securities Certificate executed and delivered upon registration or
transfer of, or in exchange for or in lieu of, a Global Capital Security or any portion thereof
shall be executed and delivered in the form of, and shall be, a Global Capital


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Security, unless such Definitive Capital Securities Certificate is registered in the name of a
Person other than the Depositary for such Global Capital Security or a nominee thereof.




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




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




          To the extent that a notice or other communication to the Holders is required under this
Declaration, for so long as Capital Securities are represented by a Global Capital Security, the
Administrator and the Institutional Trustee shall give all such notices and communications to the
Depositary, and shall have no obligations to the Owners.




SECTION 6.05. Mutilated, Destroyed, Lost or Stolen Certificates. If:




          any mutilated Certificates 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




          there shall be delivered to the Registrar, the Administrators and the Institutional Trustee
such security or indemnity as may be required by them to hold 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, in exchange for or in


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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 6.5, the
Registrar or the Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any duplicate Certificate
issued 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.




     SECTION 6.06. Temporary Securities. Until definitive Securities are ready for delivery,
the Administrators may prepare and, in the case of the Capital Securities, the Institutional
Trustee shall authenticate, temporary Securities. Temporary Securities shall be substantially in
form of definitive Securities but may have variations that the Administrators consider appropriate
for temporary Securities. Without unreasonable delay, the Administrators shall prepare and, in the
case of the Capital Securities, the Institutional Trustee shall authenticate definitive Securities
in exchange for temporary Securities.



     SECTION 6.07. Cancellation. The Administrators at any time may deliver Securities to the
Institutional Trustee for cancellation. The Registrar shall forward to the Institutional Trustee
any Securities surrendered to it for registration of transfer, redemption or payment. The
Institutional Trustee shall promptly cancel all Securities surrendered for registration of
transfer, payment, replacement or cancellation and shall dispose of such canceled Securities in
accordance with its standard procedures or otherwise as the Administrators direct. The
Administrators may not issue new Securities to replace Securities that have been paid or that have
been delivered to the Institutional Trustee for cancellation.



SECTION 6.08. Rights of Holders; Waivers of Past Defaults. 




          The legal title to the Trust Property is vested exclusively in the Institutional Trustee (in
its capacity as such) in accordance with Section 2.6(g), 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.




          For so long as any Capital Securities remain outstanding, if, upon an Indenture Event of
Default for which acceleration is permitted under Section 5.01, 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.




          At any time after a declaration of 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


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the Debenture Trustee as provided in the Indenture, if the Institutional Trustee, subject to
the provisions hereof, fails to annul any such declaration 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
declaration and its consequences if:





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




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




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




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




     (4) 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




     (b) 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.



          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 of or 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.




          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


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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 6.8.




          Except as otherwise provided in this Section 6.8, 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 7.01. Dissolution and Termination of Trust.



          The Trust shall dissolve on the first to occur of





     (a) unless earlier dissolved, on June 15, 2042, the expiration of the term of
the Trust;




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




     (c) (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;




     (d) 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;




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




     (f) 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




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



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          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, when notified in writing of the completion of the winding up of the
Trust in accordance with the Statutory Trust Act, shall terminate the Trust by filing, at the
expense of the Sponsor, a certificate of cancellation with the Secretary of State of the State of
Delaware.




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




ARTICLE VIII




TRANSFER OF INTERESTS




SECTION 8.01. General. 




          Subject to Section 6.4 and Section 8.1(c), when Capital Securities are presented to the
Registrar with a request to register a transfer or to exchange them for an equal number of Capital
Securities represented by different Certificates, the Registrar shall register the transfer or make
the exchange if the requirements provided for herein for such transactions are met. To permit
registrations of transfers and exchanges, the Trust shall issue and the Institutional Trustee shall
authenticate Capital Securities at the Registrar’s request.




          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.




          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 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.




          The Registrar shall provide 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 require) in respect of any tax or other governmental charges that may be imposed in relation to
it. Upon surrender for registration of transfer of any Securities, the Registrar shall cause one or
more new Securities to be issued in the name of the designated transferee or transferees. Any
Security issued upon any registration of transfer or exchange pursuant to the terms of this
Declaration shall evidence the same Security and shall be entitled to the same benefits under this
Declaration as the Security surrendered upon such registration of transfer or exchange. Every
Security surrendered for registration of transfer shall be


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accompanied by a written instrument of transfer in form satisfactory to the Registrar duly
executed by the Holder or such Holder’s attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Institutional Trustee pursuant to
Section 6. A transferee of a Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a Security. By acceptance
of a Security, each transferee shall be deemed to have agreed to be bound by this Declaration.




          Neither the Trust nor the Registrar shall be required (i) to issue, 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 8.02. Transfer Procedures and Restrictions. 




          The 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 Institutional Trustee, as may be
reasonably required by the Trust, that neither the 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 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 that do not bear
the Restricted Securities Legend (other than the legend contemplated by Section 8.2(d)).




          When Capital Securities are presented to the Registrar (x) to register the transfer of such
Capital Securities, or (y) to exchange such Capital Securities for an equal number of Capital
Securities represented by different Certificates, the Registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such transaction are met;
provided, however, that the Capital Securities surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Trust and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.




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




   THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A
NOMINEE OF DTC. THIS CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION, AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN A



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TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



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



   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) TO A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) 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 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 (E) 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 (D) OR (E) 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.



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   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 OR AN APPLICABLE EXEMPTION THEREFROM.



   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 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii)
SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.



   IN CONNECTION WITH ANY TRANSFER, THE HOLDER 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.



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          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.




          Each party hereto understands and hereby agrees that the Initial Purchaser is intended solely
to be an interim holder of the Capital Securities and is purchasing such securities to facilitate
consummation of the transactions contemplated herein and in the documents ancillary hereto.
Notwithstanding any provision in this Declaration to the contrary, the Initial Purchaser shall have
the right upon notice (a “Transfer Notice”) (such Transfer Notice shall be required if, and only
if, the Capital Securities are not listed with the Depository Trust Company) to the Institutional
Trustee and the Sponsor to transfer title in and to the Capital Securities, provided the Initial
Purchaser shall take reasonable steps to ensure that such transfer is exempt from registration
under the Securities Act of 1933, as amended, and rules promulgated thereunder. Any Transfer Notice
delivered to the Institutional Trustee and Sponsor pursuant to the preceding sentence shall
indicate the aggregate liquidation amount of Capital Securities being transferred, the name and
address of the transferee thereof (the “Transferee”) and the date of such transfer. Notwithstanding
any provision in this Declaration to the contrary, the transfer by the Initial Purchaser of title
in and to the Capital Securities pursuant to a Transfer Notice shall not be subject to any
requirement relating to Opinions of Counsel, Certificates of Transfer or any other Opinion or
Certificate applicable to transfers hereunder and relating to Capital Securities.




     SECTION 8.03. 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
Certificate shall be registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate 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 Certificate or in the Securities
represented by such Certificate on the part of any 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.



ARTICLE IX

LIMITATION OF LIABILITY OF HOLDERS

OF SECURITIES, TRUSTEES OR OTHERS




     SECTION 9.01. Liability.



          Except as expressly set forth in this Declaration, the Guarantee and the terms of the
Securities, the Sponsor shall not be:




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     (a) 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




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



          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.




          Except to the extent provided in Section 9.1(b), and 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 9.02. Exculpation.




          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 or bad faith 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 or bad
faith with respect to such acts or omissions.




          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 9.03. Fiduciary Duty.



          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


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Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other
duties and liabilities of the Indemnified Person.




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





     (a) 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




     (b) 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.



     SECTION 9.04. Indemnification. (a) 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) by reason of
the fact that such Person is or was an Indemnified Person against expenses (including 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.




     (a) 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 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



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reasonably entitled to indemnity for such expenses which such Court of Chancery
or such other court shall deem proper.




     (b) 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.




     (c) 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.




     (d) To the fullest extent permitted by law, expenses (including 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



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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.



          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, willful misconduct or bad faith with respect to such acts or omissions.




          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.




          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.




          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


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surviving entity as such Person would have with respect to such constituent entity if its
separate existence had continued.




          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.




          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.




     SECTION 9.05. 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 9.06. Compensation; Fee.




          Subject to the provisions set forth in the Fee Agreement of even date herewith, by and among
the Institutional Trustee, the Trust and the Initial Purchaser (the “Fee Agreement”), the Sponsor
agrees:





     (a) 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




     (b) except as otherwise expressly provided herein or in the Fee Agreement, to
reimburse the Trustees upon request for all reasonable,



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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.



          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




     SECTION 10.01. 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 10.02. Certain Accounting Matters. 




          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 § 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.




          The Administrators shall either (i) cause each Form 10-K and Form 10-Q prepared by the Sponsor
and filed with the Commission in accordance with the Exchange Act to be delivered directly to each
Holder of Securities, within 90 days after the filing of each Form 10-K and within 30 days after
the filing of each Form 10-Q or (ii) cause to be prepared at the principal office of the Trust in
the United States, as defined for purposes of Treasury Regulations § 301.7701-7, and delivered
directly to each of the Holders of Securities, 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 related statements of income or loss.




          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.




          The Administrators shall cause to be duly prepared in the United States, as defined for
purposes of Treasury Regulations § 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.




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          The Administrators will cause the Sponsor’s reports on Form FR Y-9C and FR Y-9LP to be
delivered to the Holders promptly following their filing with the Federal Reserve.




     SECTION 10.03. Banking. The Trust shall maintain one or more bank accounts in the United
States, as defined for purposes of Treasury Regulations § 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 10.04. 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 11.01. Amendments.



          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:





     (a) the Institutional Trustee,




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




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




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



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





     (a) unless the Institutional Trustee shall have first received




     (1) 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




     (2) 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




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




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




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




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




     (4) cause the Debenture Issuer to be unable to treat an amount equal to
the Liquidation Amount of the Capital Securities as “Tier 1 Capital” for
purposes of the capital adequacy guidelines of (x) the Federal Reserve (or,
if the Debenture Issuer is not a bank holding company, such guidelines or
policies applied to the Debenture Issuer as if the Debenture Issuer were
subject to such guidelines of policies) or of (y) any other regulatory
authority having jurisdiction over the Debenture Issuer.



          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.




          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 any redemption or liquidation provisions applicable
to 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.




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     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.



          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.




     Subject to Section 11.1(a)(ii), this Declaration may be amended by the Institutional Trustee
and the Holder of a Majority in liquidation amount of the Common Securities without the consent of
the Holders of the Capital Securities to:




     (a) cure any ambiguity;




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




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




     (d) 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 11.02. Meetings of the Holders of the Securities; Action by Written Consent. 



          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


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           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.




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





     (a) notice of any such meeting shall be given to all the Holders of the
Securities having a right to vote thereat at least 15 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 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 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;




     (b) 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




     (c) 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;



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     provided, however, that each meeting shall be conducted in the
United States (as that term is defined in Treasury Regulations § 301.7701-7).



ARTICLE XII

REPRESENTATIONS OF INSTITUTIONAL TRUSTEE

AND DELAWARE TRUSTEE




     SECTION 12.01. 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:



          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;




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




          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;




          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. 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);




          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




          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 12.02. 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:



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          if it is not a natural person, the Delaware Trustee has its principal place of business in the
State of Delaware;




          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);




          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 articles of association
or by-laws of the Delaware Trustee;




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




          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




          if the Delaware Trustee is a natural person, it is a resident of the State of Delaware.




ARTICLE XIII

MISCELLANEOUS




     SECTION 13.01. 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:



          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):



LNB Trust II

c/o LNB Bancorp, Inc.

457 Broadway

Lorain, Ohio 44052

Attention: Terry M. White

Telecopy: (440) 244-4815

Telephone: (440) 244-6000




          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):




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Wells Fargo Delaware Trust Company

919 North Market Street Suite 1600

Wilmington, DE 19801

Attention: Corporate Trust Division

Telecopy: 302-575-2006

Telephone: 302-575-2005




          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):



Wells Fargo Bank, National Association

919 North Market Street Suite 1600

Wilmington, DE 19801

Attention: Corporate Trust Division

Telecopy: 302-575-2006

Telephone: 302-575-2005




          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):



LNB Bancorp, Inc.

457 Broadway

Lorain, Ohio 44052

Attention: Terry M. White

Telecopy: (440) 244-4815

Telephone: (440) 244-6000




          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.




     SECTION 13.02. 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.



SECTION 13.03. Submission to Jurisdiction. 




          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


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of the state or federal courts of the State of New York located in the Borough of Manhattan,
City and State of New York, and further agrees to submit to the jurisdiction of Delaware, and to
any actions that are instituted in state or Federal court in Wilmington, Delaware and 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.




          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 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.




          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 13.04. 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 13.05. 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 13.06. 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 13.07. 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.



     SECTION 13.08. 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. 



-54-









 




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.




-55-









 







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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	WELLS FARGO DELAWARE TRUST
	 	 
	 	 	 	 	COMPANY,
	 	 
	 	 	 	 	as Delaware Trustee
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:     	 	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	WELLS FARGO BANK, NATIONAL
	 	 
	 	 	 	 	ASSOCIATION,
	 	 
	 	 	 	 	as Institutional Trustee
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 
	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 	 	 	 	LNB BANCORP, INC.

	 	 	 	 	as Sponsor

	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 

	 	 	Name:	 	 	 	 	 
	 

	 	 	 	 

	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

Administrator
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 

Administrator
	 	 





(9) LNB Bancorp, Inc.


 









 






ANNEX I




TERMS OF

CAPITAL SECURITIES AND

COMMON SECURITIES




   Pursuant to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of May 9,
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. 10,000 Capital Securities of LNB Trust II (the “Trust”), with an
aggregate stated liquidation amount with respect to the assets of the Trust of Ten Million Dollars
($10,000,000) 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 “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. 310 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 Three
Hundred Ten Thousand Dollars ($310,000) 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 fixed rate of ___% (the “Fixed
Rate”) per annum from May 9, 2007 until June 15, 2017 (the “Fixed Rate Period”) and thereafter at a
variable per annum rate of interest, reset quarterly, equal to LIBOR, as determined on the LIBOR
Determination Date for such Distribution Payment Period, plus 1.48% (the “Variable Rate”) (“Coupon
Rate” is defined to include the Fixed Rate and Variable Rate, as applicable) of the stated
liquidation amount of $1,000 per Security, (provided, however, that the Coupon Rate for any
Distribution Payment Period may not exceed the highest rate permitted by New York law, as the same
may be modified by United States law of general applicability), such Coupon 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 quarterly
period will bear interest thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly 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



A-I-1 









 







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. During the Fixed Rate Period, the amount of Distributions payable
for any Distribution Payment Period will be computed for any full quarterly Distribution Payment
Period on the basis of a 360-day year of twelve 30-day months and the amount payable for any
partial period shall be computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. Upon expiration of the Fixed Rate Period, distributions 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.



     b. Upon expiration of the Fixed Rate Period, LIBOR shall be determined by the Calculation
Agent in accordance with the following provisions:




     i. 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 the March 15, June 15,
September 15 and December 15 commencement date of each such Distribution Payment
Period (or, with respect to the first Distribution Payment Period subsequent to the
Fixed Rate Period, on June 15, 2017), (each such day, a “LIBOR Determination Date”)
for such Distribution Payment Period), the Calculation Agent shall obtain the rate
for three-month U.S. Dollar deposits in Europe, which appears on Reuters Screen
LIBOR 01 Page (as defined in the International Swaps and Derivatives Association,
Inc. 2000 Interest Rate and Currency Exchange Definitions) or such other page as may
replace such 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
(“Reuters Screen”), and the rate so obtained shall be LIBOR for such Distribution
Payment Period. “LIBOR Business Day” means any day that is not a Saturday, Sunday or
other day on which commercial banking institutions in The City of 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 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 Distribution Payment Period.




     ii. If, on any LIBOR Determination Date, such rate does not appear on Reuters
Screen, 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



A-I-2









 







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.




     iii. 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 for the
applicable Distribution Payment Period shall be LIBOR in effect for the immediately
preceding Distribution Payment Period.



     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
Payment 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 payment periods as described
herein, quarterly in arrears on March 15, June 15, September 15 and December 15 of each year,
commencing September 15, 2007 (each, a “Distribution Payment Date”). Subject to prior submission of
Notice (as defined in the Indenture), and so long as no Event of Default pursuant to paragraphs
(c), (e), (f) or (g) of Section 5.01 of the Indenture has occurred and is continuing, the Debenture
Issuer has the right under the Indenture to defer payments of interest on the Debentures by
extending the interest distribution 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 which Extension Period no interest shall be due and payable (except any
Additional Interest that may be due and payable). 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



A-I-3









 







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 (to
the extent redeemed) 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 or (ii) make any payment of principal or premium or
interest 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 in all respects pari passu 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 (A) 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, (B) in connection with a dividend reinvestment or stockholder stock
purchase plan or (C) 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 applicable Extension Period, (b) as a result of
any exchange, reclassification, combination 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 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, or extend beyond the Maturity Date, Redemption Date (to the extent
redeemed) 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 shall be due and payable during an
Extension Period, except at the end thereof, but Deferred 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



A-I-4









 







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
Distribution Payment Date. 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. Notwithstanding anything to the contrary contained herein, if any
Distribution Payment Date, other than on the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption Date, falls on a day that is not a Business Day, then any
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. If the Maturity Date, Redemption Date or Special
Redemption Date falls on a day that is not a Business Day, then the principal, premium, if any,
and/or Distributions payable on such date will be paid on the next succeeding Business Day, and no
additional interest will accrue (except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day).



     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



A-I-5









 







Debenture Issuer of prior approval from any regulatory authority having jurisdiction over the
Sponsor that is primarily responsible for regulating the activities of the Sponsor if such approval
is then required under applicable capital guidelines or policies of such regulatory authority, an
opinion of nationally recognized tax counsel that Holders will not recognize any gain or loss for
United States federal income tax purposes as a result of the distribution of Debentures 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) June 15, 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 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.



A-I-6









 





   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 Capital 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 June 15, 2037. The Debentures may be redeemed by the
Debenture Issuer, in whole or in part, on any March 15, June 15, September 15 or December 15 on or
after June 15, 2017 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 or 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 any
regulatory authority having jurisdiction over the Debenture Issuer, if such approval is then
required under applicable capital guidelines or policies of such regulatory authority.



   “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 more than a de minimis



A-I-7









 







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 or prospective change becomes effective or would become effective, as the case
may be, 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 Capital Securities, there is more than an insubstantial risk that within 90 days of
the receipt of such opinion, the aggregate Liquidation Amount of the Capital Securities will not be
eligible to be treated by the Debenture Issuer 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 inability of the Debenture Issuer to
treat all or any portion of the Liquidation Amount of the Capital Securities as Tier 1 Capital
shall not constitute the basis for a Capital Treatment Event, if such inability results from the
Debenture Issuer having cumulative preferred stock, minority interests in consolidated
subsidiaries, or any other class of security or interest which the Federal Reserve, may now or
hereafter accord Tier 1 Capital treatment in excess of the amount which may now or hereafter
qualify for treatment as Tier 1 Capital under applicable capital adequacy guidelines;
provided further, however, that the distribution of the Debt Securities 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 due to the occurrence of a Special Event, to the Special Redemption Date if such Special
Redemption Date is on or after June 15, 2017.



   “Special Redemption Price” means (1) if the Special Redemption Date is before June 15, 2017,
One Hundred Five Percent (105%) of the principal amount to be redeemed plus any accrued and unpaid
interest thereon to the date of such redemption and (2) if the Special Redemption Date is on or
after June 15, 2017, the Redemption Price for such Special Redemption Date.



A-I-8









 





   “Redemption Date” means the date fixed for the redemption of Capital Securities, which shall
be any March 15, June 15, September 15 or December 15 on or after June 15, 2017.



     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, 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 quarterly
Distribution periods terminating on or before the date of redemption.



     e. Redemption or Distribution Procedures.




     1. 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.




     2. 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.




     3. 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, with respect to Book-Entry Capital Securities, on the
Redemption Date or Special Redemption Date, as applicable, irrevocably



A-I-9









 







deposit with the Depositary for such Book-Entry Capital Securities, to the
extent available therefor, funds sufficient to pay the relevant Redemption Price or
Special Redemption Price, as applicable, and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price or Special Redemption Price,
as applicable, to the Owners of the Capital Securities. With respect to Capital
Securities that are not Book-Entry Capital Securities, the Institutional Trustee
will pay, to the extent available therefore, the relevant Redemption Price or
Special Redemption Price, as applicable, 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 or Special Redemption Price, as
applicable, specified in Section 4(a). If any date fixed for redemption of
Securities is not a Business Day, then payment of any such Redemption Price or
Special Redemption Price, as applicable, payable on such date will be made on the
next succeeding day that is a Business Day 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 or Special Redemption
Price, as applicable, 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 or Special Redemption Price, as
applicable. 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.




     4. 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.




     5. 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



A-I-10









 







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 such interest, premium, if any, on 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



A-I-11









 







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.



A-I-12









 





     (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 6.8 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.



A-I-13









 





   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



A-I-14









 







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 or Special 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 or Special Redemption Price the full amount of such Redemption
Price or the Special 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 or the Special 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.




A-I-15









 








EXHIBIT A-1




FORM OF CAPITAL SECURITY CERTIFICATE




[FORM OF FACE OF SECURITY]




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



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



   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) TO A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) 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 AN “ACCREDITED INVESTOR,” FOR



A-1-1









 







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 (E) 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 (D) OR (E) 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 OR AN APPLICABLE EXEMPTION THEREFROM.



   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 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY
ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE
MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON
OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii)
SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.



   IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND RESTATED



A-1-2









 







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.



A-1-3









 








			
	 	 	 
	Certificate Number [P-001]
	 	Number of Capital Securities 10,000






CUSIP NO:
                                        





Certificate Evidencing Capital Securities




of




LNB Trust II




Capital Securities




(liquidation amount $1,000 per Capital Security)




   LNB Trust II, a statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that Cede & Co., as nominee on behalf of The Depository Trust Company (the
“Holder”), is the registered owner of 10,000 capital securities of the Trust representing undivided
beneficial interests in the assets of the Trust, designated the 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 May 9, 2007, among Daniel E. Klimas and Sharon L.
Churchill, as Administrators, Wells Fargo Delaware Trust Company, as Delaware Trustee, Wells Fargo
Bank, National Association, as Institutional Trustee, LNB Bancorp, 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 Security, the Holder is bound by the Declaration and is entitled to the
benefits thereunder.



   By acceptance of this Security, 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 Capital Security is governed by, and shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



A-1-4









 





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



	 	 	 	 	 	 	 	 	 
	 	 	 	 	LNB Trust II
	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 

Title: Administrator
	 	 
	 

	 	Dated:	 	 	 	 	 	 
	 	 	 	 	   





CERTIFICATE OF AUTHENTICATION




     This is one of the Capital Securities referred to in the within-mentioned Declaration.



	 	 	 	 	 	 	 
	 

	 	 	 	WELLS FARGO BANK, NATIONAL	 	 
	 

	 	 	 	ASSOCIATION,	 	 
	 

	 	 	 	not in its individual capacity but solely as the Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 
	 

	 	Dated	 	 	 	 
	 

	 	 	 	 

	 	 






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[FORM OF REVERSE OF SECURITY]




   Distributions payable on each Capital Security will be payable at a fixed rate of ___% (the
“Fixed Rate”) per annum from May 9, 2007 until June 15, 2017 (the “Fixed Rate Period”) and
thereafter at a variable per annum rate of interest, reset quarterly, equal to LIBOR (as defined in
the Declaration) plus 1.48% (the “Variable Rate”) (“Coupon Rate” is defined to include the Fixed
Rate and Variable Rate, as applicable) of the stated liquidation amount of $1,000 per Capital
Security (provided, however, that the Coupon Rate for any Distribution Payment Period may not
exceed the highest rate permitted by New York law, as the same may be modified by United States law
of general applicability), such Coupon Rate being the rate of interest payable on the Debentures to
be held by the Institutional Trustee. Distributions in arrears for more than one quarterly period
will bear interest thereon compounded quarterly at the then applicable Coupon Rate for each such
quarterly 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.
During the Fixed Rate Period, the amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of twelve 30-day months
and the amount payable for any partial period shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period,
distributions will be computed on the basis of a 360-day year and the actual number of days elapsed
in the relevant Distribution Payment 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 March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture), and
so long as no Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section 5.01 of the
Indenture has occurred and is continuing, the Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures by extending the interest distribution 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 which Extension Period no
interest shall be due and payable (except any Additional Interest that may be due and payable).
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 (to
the extent redeemed) 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 (to the extent



A-1-6









 







redeemed) 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 Deferred 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.




A-1-7









 








ASSIGNMENT




   FOR VALUE RECEIVED, the undersigned assigns and transfers 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 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                                     &
nbsp;  






 




			
	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.




A-1-8









 










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.




A-2-1









 








			
	 	 	 
	Certificate Number [C-001]
	 	Number of Common Securities: 310






Certificate Evidencing Common Securities




of




LNB Trust II




   LNB Trust II, a statutory trust created under the laws of the State of Delaware (the “Trust”),
hereby certifies that LNB Bancorp, Inc. (the “Holder”) is the registered owner of 310 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 May 9, 2007, among Daniel E. Klimas and Sharon L. Churchill, as Administrators, Wells Fargo
Delaware Trust Company, as Delaware Trustee, Wells Fargo Bank, National Association, 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 Common Security is governed by, and shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



A-2-2









 





   IN WITNESS WHEREOF, the Trust has executed this certificate as of this ___ day of
                    , 2007.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	LNB Trust II	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title: Administrator
	 	 	 	 






A-2-3









 






[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 fixed rate of ___% (the “Fixed Rate”) per annum
from May 9, 2007 until June 15, 2017 (the “Fixed Rate Period”) and thereafter at a variable per
annum rate of interest, reset quarterly, equal to LIBOR (as defined in the Declaration) plus 1.48%
(the “Variable Rate”) (“Coupon Rate” is defined to include the Fixed Rate and Variable Rate, as
applicable) of the stated liquidation amount of $1,000 per Capital Security (provided, however,
that the Coupon Rate for any Distribution Payment Period may not exceed the highest rate permitted
by New York law, as the same may be modified by United States law of general applicability), such
Coupon Rate being the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Distributions in arrears for more than one quarterly period will bear interest thereon
compounded quarterly at the then applicable Coupon Rate for each such quarterly 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. During the
Fixed Rate Period, the amount of Distributions payable for any period will be computed for any
quarterly Distribution period on the basis of a 360-day year of twelve 30-day months and the amount
payable for any partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period, the amount of
distributions payable for any full quarterly Distribution period will be computed on the basis of a
360-day year and the actual number of days elapsed in the relevant Distribution Payment 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 March 15, June 15, September 15 and December 15 of each year, commencing on September 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture), and
so long as no Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section 5.01 of the
Indenture has occurred and is continuing, the Debenture Issuer has the right under the Indenture to
defer payments of interest on the Debentures by extending the interest distribution 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 which Extension Period no
interest shall be due and payable (except any Additional Interest that may be due and payable).
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 (to the
extent redeemed) 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



A-2-4









 







such previous and further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent redeemed) 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 Deferred 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 legally 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.




A-2-5









 








ASSIGNMENT




   FOR VALUE RECEIVED, the undersigned assigns and transfers 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 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:4
                                        







 




			
	4	 	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.




A-2-6