Exhibit 10.41


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


 


Among


 


 


GAINSCO, INC.


as Depositor,


 


 


WILMINGTON TRUST COMPANY


as Property Trustee,


 


 


WILMINGTON TRUST COMPANY,


as Delaware Trustee, and


 


 


Glenn W. Anderson


Daniel J. Coots


and


Richard M. Buxton


as Administrators


 


 


Dated as of January 13, 2006


 










 


GAINSCO CAPITAL TRUST I


 










 





















 


GAINSCO CAPITAL TRUST I


 


Certain Sections of this Trust Agreement relating to Sections 310
through 318

of the Trust Indenture Act of 1939:


 


	
  Trust Indenture Act Section

  	
  Trust Agreement Section

  
	
   

  	
   

  	
   

  	
   

  
	
  Section

  	
  310

  	
  (a)(1)

  	
  8.7

  
	
   

  	
   

  	
  (a)(2)

  	
  8.7

  
	
   

  	
   

  	
  (a)(3)

  	
  8.9

  
	
   

  	
   

  	
  (a)(4)

  	
  2.7(a)(ii)

  
	
   

  	
   

  	
  (b)

  	
  8.8, 10.10(b)

  
	
  Section

  	
  311

  	
  (a)

  	
  8.13, 10.10(b)

  
	
   

  	
   

  	
  (b)

  	
  8.13, 10.10(b)

  
	
  Section

  	
  312

  	
  (a)

  	
  10.10(b)

  
	
   

  	
   

  	
  (b)

  	
  10.10(b), (f)

  
	
   

  	
   

  	
  (c)

  	
  5.7

  
	
  Section

  	
  313

  	
  (a)

  	
  8.15(a)

  
	
   

  	
   

  	
  (a)(4)

  	
  10.10(c)

  
	
   

  	
   

  	
  (b)

  	
  8.15(c), 10.10(c)

  
	
   

  	
   

  	
  (c)

  	
  10.8, 10.10(c)

  
	
   

  	
   

  	
  (d)

  	
  10.10(c)

  
	
  Section

  	
  314

  	
  (a)

  	
  8.16, 10.10(d)

  
	
   

  	
   

  	
  (b)

  	
  Not Applicable

  
	
   

  	
   

  	
  (c)(1)

  	
  8.17, 10.10(d), (e)

  
	
   

  	
   

  	
  (c)(2)

  	
  8.17, 10.10(d), (e)

  
	
   

  	
   

  	
  (c)(3)

  	
  8.17, 10.10(d), (e)

  
	
   

  	
   

  	
  (e)

  	
  8.17, 10.10(e)

  
	
  Section

  	
  315

  	
  (a)

  	
  8.1(d)

  
	
   

  	
   

  	
  (b)

  	
  8.2

  
	
   

  	
   

  	
  (c)

  	
  8.1(c)

  
	
   

  	
   

  	
  (d)

  	
  8.1(d)

  
	
   

  	
   

  	
  (e)

  	
  Not Applicable

  
	
  Section

  	
  316

  	
  (a)

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(1)(A)

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(1)(B)

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(2)

  	
  Not Applicable

  
	
   

  	
   

  	
  (b)

  	
  5.13

  
	
   

  	
   

  	
  (c)

  	
  6.7

  
	
  Section

  	
  317

  	
  (a)(1)

  	
  Not Applicable

  
	
   

  	
   

  	
  (a)(2)

  	
  8.14

  
	
   

  	
   

  	
  (b)

  	
  5.10

  
	
  Section

  	
  318

  	
  (a)

  	
  10.10(a)

  



 


Note:  This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
the Trust Agreement.


 


i





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINED TERMS

  	
  1

  
	
  SECTION 1.1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  CONTINUATION OF THE ISSUER
  TRUST

  	
  13

  
	
  SECTION 2.1.

  	
  Name

  	
  13

  
	
  SECTION 2.2.

  	
  Office of the Delaware
  Trustee; Principal Place of Business

  	
  13

  
	
  SECTION 2.3.

  	
  Initial Contribution of
  Trust Property; Organizational Expenses

  	
  13

  
	
  SECTION 2.4.

  	
  Issuance of the Restricted
  Capital Securities

  	
  13

  
	
  SECTION 2.5.

  	
  Issuance of the Common
  Securities; Subscription and Purchase of Junior Subordinated Debentures

  	
  14

  
	
  SECTION 2.6.

  	
  Authorization to Issue
  Additional Trust Securities; Authorization to Subscribe and Purchase
  Additional Junior Subordinated Debentures

  	
  14

  
	
  SECTION 2.7.

  	
  Declaration of Trust

  	
  14

  
	
  SECTION 2.8.

  	
  Authorization to Enter
  into Certain Transactions

  	
  15

  
	
  SECTION 2.9.

  	
  Assets of Trust

  	
  18

  
	
  SECTION 2.10.

  	
  Title to Trust Property

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  PAYMENT ACCOUNT

  	
  18

  
	
  SECTION 3.1.

  	
  Payment Account

  	
  18

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  DISTRIBUTIONS; REDEMPTION

  	
  19

  
	
  SECTION 4.1.

  	
  Distributions

  	
  19

  
	
  SECTION 4.2.

  	
  Redemption

  	
  20

  
	
  SECTION 4.3.

  	
  Subordination of Common
  Securities

  	
  22

  
	
  SECTION 4.4.

  	
  Payment Procedures

  	
  23

  
	
  SECTION 4.5.

  	
  Tax Returns and Reports

  	
  23

  
	
  SECTION 4.6.

  	
  Payment of Taxes, Duties,
  Etc. of the Issuer Trust

  	
  24

  
	
  SECTION 4.7.

  	
  Payments under Indenture
  or Pursuant to Direct Actions

  	
  24

  
	
  SECTION 4.8.

  	
  Liability of the Holder of
  Common Securities

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  TRUST SECURITIES
  CERTIFICATES

  	
  24

  
	
  SECTION 5.1.

  	
  Initial Ownership

  	
  24

  
	
  SECTION 5.2.

  	
  The Trust Securities
  Certificates

  	
  24

  
	
  SECTION 5.3.

  	
  Execution and Delivery of
  Trust Securities Certificates

  	
  25

  
	
  SECTION 5.4.

  	
  Global Capital Securities

  	
  25

  
	
  SECTION 5.5.

  	
  Registration of Transfer
  and Exchange Generally; Certain Transfers and Exchanges; Capital Securities
  Certificates; Securities Act Legends

  	
  27

  
	
  SECTION 5.6.

  	
  Mutilated, Destroyed, Lost
  or Stolen Trust Securities Certificates

  	
  30

  
	
  SECTION 5.7.

  	
  Persons Deemed Holders

  	
  31

  
	
  SECTION 5.8.

  	
  Access to List of Holders’
  Names and Addresses

  	
  31

  
	
  SECTION 5.9.

  	
  Maintenance of Office or
  Agency

  	
  31

  
	
  SECTION 5.10.

  	
  Appointment of Paying
  Agent

  	
  31

  
	
  SECTION 5.11.

  	
  Ownership of Common
  Securities by Depositor

  	
  32

  
	
  SECTION 5.12.

  	
  Notices to Clearing Agency

  	
  32

  



 


ii





















 


	
  SECTION 5.13.

  	
  Rights of Holders

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  ACTS OF HOLDERS; MEETINGS;
  VOTING

  	
  35

  
	
  SECTION 6.1.

  	
  Limitations on Holders’
  Voting Rights

  	
  35

  
	
  SECTION 6.2.

  	
  Notice of Meetings

  	
  36

  
	
  SECTION 6.3.

  	
  Meetings of Holders

  	
  36

  
	
  SECTION 6.4.

  	
  Voting Rights

  	
  36

  
	
  SECTION 6.5.

  	
  Proxies, etc.

  	
  36

  
	
  SECTION 6.6.

  	
  Holder Action by Written
  Consent

  	
  37

  
	
  SECTION 6.7.

  	
  Record Date for Voting and
  Other Purposes

  	
  37

  
	
  SECTION 6.8.

  	
  Acts of Holders

  	
  37

  
	
  SECTION 6.9.

  	
  Inspection of Records

  	
  38

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
  38

  
	
  SECTION 7.1.

  	
  Representations and
  Warranties of the Property Trustee and the Delaware Trustee

  	
  38

  
	
  SECTION 7.2.

  	
  Representations and
  Warranties of Depositor

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  THE ISSUER TRUSTEES; THE
  ADMINISTRATORS

  	
  40

  
	
  SECTION 8.1.

  	
  Certain Duties and
  Responsibilities

  	
  40

  
	
  SECTION 8.2.

  	
  Certain Notices

  	
  43

  
	
  SECTION 8.3.

  	
  Certain Rights of Property
  Trustee

  	
  43

  
	
  SECTION 8.4.

  	
  Not Responsible for
  Recitals or Issuance of Securities

  	
  45

  
	
  SECTION 8.5.

  	
  May Hold Securities

  	
  45

  
	
  SECTION 8.6.

  	
  Compensation; Indemnity;
  Fees

  	
  45

  
	
  SECTION 8.7.

  	
  Corporate Property Trustee
  Required; Eligibility of Trustees and Administrators

  	
  46

  
	
  SECTION 8.8.

  	
  Conflicting Interests

  	
  47

  
	
  SECTION 8.9.

  	
  Co-Trustees and Separate
  Trustee

  	
  47

  
	
  SECTION 8.10.

  	
  Resignation and Removal;
  Appointment of Successor

  	
  48

  
	
  SECTION 8.11.

  	
  Acceptance of Appointment
  by Successor

  	
  49

  
	
  SECTION 8.12.

  	
  Merger, Conversion,
  Consolidation or Succession to Business

  	
  50

  
	
  SECTION 8.13.

  	
  Preferential Collection of
  Claims Against Depositor or Issuer Trust

  	
  50

  
	
  SECTION 8.14.

  	
  Trustee May File
  Proofs of Claim

  	
  51

  
	
  SECTION 8.15.

  	
  Reports by Property
  Trustee

  	
  51

  
	
  SECTION 8.16.

  	
  Reports to the Property
  Trustee

  	
  52

  
	
  SECTION 8.17.

  	
  Evidence of Compliance
  with Conditions Precedent

  	
  52

  
	
  SECTION 8.18.

  	
  Number of Issuer Trustees

  	
  52

  
	
  SECTION 8.19.

  	
  Delegation of Power

  	
  52

  
	
  SECTION 8.20.

  	
  Appointment of
  Administrators

  	
  53

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  DISSOLUTION, LIQUIDATION
  AND MERGER

  	
  53

  
	
  SECTION 9.1.

  	
  Dissolution Upon
  Expiration Date

  	
  53

  
	
  SECTION 9.2.

  	
  Early Dissolution

  	
  54

  
	
  SECTION 9.3.

  	
  Termination

  	
  54

  
	
  SECTION 9.4.

  	
  Liquidation

  	
  54

  



 


iii





















 


	
  SECTION 9.5.

  	
  Mergers, Consolidations,
  Amalgamations or Replacements of the Issuer Trust

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  MISCELLANEOUS PROVISIONS

  	
  57

  
	
  SECTION 10.1.

  	
  Limitation of Rights of
  Holders

  	
  57

  
	
  SECTION 10.2.

  	
  Amendment

  	
  57

  
	
  SECTION 10.3.

  	
  Separability

  	
  58

  
	
  SECTION 10.4.

  	
  Governing Law

  	
  58

  
	
  SECTION 10.5.

  	
  Payments Due on
  Non-Business Day

  	
  59

  
	
  SECTION 10.6.

  	
  Successors

  	
  59

  
	
  SECTION 10.7.

  	
  Headings

  	
  60

  
	
  SECTION 10.8.

  	
  Reports, Notices and
  Demands

  	
  60

  
	
  SECTION 10.9.

  	
  Agreement Not to Petition

  	
  60

  
	
  SECTION 10.10.

  	
  Trust Indenture Act;
  Conflict with Trust Indenture Act

  	
  61

  
	
  SECTION 10.11.

  	
  Acceptance of Terms of
  Trust Agreement, Guarantee and Indenture

  	
  62

  
	
   

  	
   

  	
   

  
	
  Exhibit A.

  	
  Certificate
  of Trust

  	
  1

  
	
   

  	
   

  	
   

  
	
  Exhibit B.

  	
  Form of
  Restricted Securities Certificate

  	
  1

  
	
   

  	
   

  	
   

  
	
  Exhibit C.

  	
  Form of
  Common Securities Certificate

  	
  1

  
	
   

  	
   

  	
   

  
	
  Exhibit D.

  	
  Form of
  Capital Securities Certificate

  	
  1

  
	
   

  	
   

  	
   

  
	
  Exhibit E.

  	
  Form of
  Placement Agreement

  	
  1

  



 


iv





















 


AMENDED AND RESTATED TRUST AGREEMENT


 


THIS
AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 13, 2006, is by
and among (i) GAINSCO, INC., a Texas corporation (including any successors
or assigns, the “Depositor”), (ii) Wilmington Trust Company, a
Delaware banking corporation, as property trustee (in such capacity, the “Property
Trustee” and, in its separate corporate capacity and not in its capacity as
Property Trustee or Delaware Trustee, the “Bank”), (iii) Wilmington
Trust Company, a Delaware banking corporation, as Delaware trustee (in such
capacity, the “Delaware Trustee”) (the Property Trustee and the Delaware
Trustee are referred to collectively herein as the “Issuer Trustees”), (iv) the
Administrators, as hereinafter defined, and (v) the several Holders, as
hereinafter defined.


 


WITNESSETH


 


WHEREAS,
the Depositor and the Delaware Trustee have heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into a certain Trust Agreement, dated as of January 9, 2006 (the “Original
Trust Agreement”), and by the execution and filing by the Delaware Trustee
with the Secretary of State of the State of Delaware of the Certificate of
Trust, filed on January 9, 2006 (the “Certificate of Trust”),
attached as Exhibit A; and


 


WHEREAS,
the Depositor and the Delaware Trustee desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance of the Common Securities by the Issuer Trust to
the Depositor, (ii) the issuance and sale of the Capital Securities by the
Issuer Trust pursuant to the Placement Agreement, (iii) the acquisition by
the Issuer Trust from the Depositor of all of the right, title and interest in
the Junior Subordinated Debentures, (iv) the appointment of the
Administrators and (v) the addition of the Property Trustee as a party to
this Trust Agreement.


 


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


 


ARTICLE I


 


DEFINED TERMS


 


SECTION 1.1.  Definitions.


 


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


 


(1)           The
terms defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


1





















 


(2)           All
other terms used herein that are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;


 


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


 


(4)           All
accounting terms used but not defined herein have the meanings assigned to them
in accordance with United States generally accepted accounting principles as in
effect at the time of determination;


 


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


 


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


 


(7)           All
references to the date the Capital Securities were originally issued shall
refer to the date hereof.


 


“Act” has the meaning specified in Section 6.8.


 


“Additional Amounts” means, with respect to Trust Securities
of a given Liquidation Amount and/or a given period, the amount of any
Additional Interest (as defined in the Indenture) paid by the Depositor on a
Like Amount of Junior Subordinated Debentures for such period.


 


“Additional Sums” has the meaning specified in Section 10.6
of the Indenture.


 


“Administrators” means each Person appointed in accordance
with Section 8.20 solely in such Person’s capacity as Administrator of the
Issuer Trust continued hereunder and not in such Person’s individual capacity,
or any successor Administrator appointed as herein provided; with the initial
Administrators being Glenn W. Anderson, Daniel J. Coots and Richard M. Buxton.


 


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


 


“Applicable Procedures” mean, with respect to any transfer or
transaction involving a Global Capital Security or beneficial interest therein,
the rules and procedures of the Clearing


 


2





















 


Agency for such Global Capital Security, in each case to the extent
applicable to such transaction and as in effect from time to time.


 


“Bank” has the meaning specified in the preamble to this
Trust Agreement.


 


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


 


(1)           the
entry of a decree or order by a court having jurisdiction in the premises
judging such Person a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjudication or composition of or
in respect of such Person under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
conservator, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding-up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or


 


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


 


“Bankruptcy Laws” has the meaning specified in Section 10.9.


 


“Board of Directors” means the board of directors of the
Depositor or the Executive Committee of the board of directors of the Depositor
(or any other committee of the board of directors of the Depositor performing
similar functions) or a committee designated by the board of directors of the
Depositor (or any such committee), comprised of two or more members of the
board of directors of the Depositor or officers of the Depositor, or both.


 


“Board Resolution” means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Depositor to have been duly
adopted by the Depositor’s Board of Directors, or such committee of the Board
of Directors or officers of the Depositor to which authority to act on behalf
of the Board of Directors has been delegated, and to be in full force and
effect on the date of such certification, and delivered to the Issuer Trustees.


 


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


 


3





















 


“Capital Securities Certificate” means a certificate
evidencing ownership of Capital Securities, substantially in the form attached
as Exhibit D, and shall, unless specified otherwise herein, include
a Restricted Securities Certificates, substantially in the form attached hereto
as Exhibit B.  The Capital
Securities Certificate shall be issued initially with a Restricted Capital
Securities Legend, which shall remain on such certificate until the Depositor
and the Issuer Trust receive an Opinion of Counsel that such legend can be
removed consistent with the Securities Act.


 


“Capital
Security” means a preferred undivided beneficial interest in
the assets of the Issuer Trust, having a Liquidation Amount of $1,000 or an
integral multiple in excess of such amount and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.


 


“Cede”
means Cede & Co., as the nominee of the Depositary.


 


“Certificate
of Trust” has the meaning specified in the preamble to this
Trust Agreement.


 


“Clearing
Agency” means an organization registered as a “clearing
agency” pursuant to Section 17A of the Exchange Act.  The Depositary shall be the initial Clearing
Agency.


 


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


 


“Closing”
and “Closing Date” have the respective
meanings specified in the Placement Agreement.


 


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


 


“Commission”
means the United States Securities and Exchange Commission, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.


 


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


 


“Common
Securities Purchase Agreement” means the Common Securities
Purchase Agreement, dated of even date herewith, between the Issuer Trust and
the Depositor, as the same may be amended from time to time.


 


“Common
Security” means an undivided beneficial interest in the
assets of the Issuer Trust, having a Liquidation Amount of $1,000 and integral
multiples in excess thereof and


 


4





















 


having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.


 


“Corporate Trust Office” means the principal office of the
Property Trustee located in the City of Wilmington, Delaware, which at the time
of the execution of this Trust Agreement is located at 1100 North Market
Street, Rodney Square North, Wilmington, Delaware 19890-0001, Attention:  Corporate Trust Administration.


 


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


 


“Debenture
Purchase Agreement” means the Junior Subordinated Debenture
Purchase Agreement, dated of even date herewith, between the Depositor and the
Issuer Trust, as the same may be amended from time to time.


 


“Debenture Redemption Date” means, with respect to any Junior
Subordinated Debentures to be redeemed under the Indenture, the date fixed for
redemption of such Debentures under the Indenture.


 


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


 


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


 


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


 


“Depositor” has the meaning specified in the preamble to this
Trust Agreement.


 


“Direct Action” has the meaning specified in Section 5.13(c).


 


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


 


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


 


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


 


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


 


(1)           the
occurrence of a Debenture Event of Default; or


 


5





















 


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


 


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


 


(4)           default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trustees in this Trust Agreement (other than a covenant
or warranty a default in the performance of which or the breach of which is
dealt with in clause (2) or (3) above) and continuation of such
default or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Issuer Trustees and the Depositor by the
Holders of at least 25% in aggregate Liquidation Amount of the Outstanding
Capital Securities, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or


 


(5)           the
occurrence of any Bankruptcy Event with respect to the Property Trustee or all
or substantially all of its property if a successor Property Trustee has not
been appointed within a period of 90 days thereof.


 


“Exchange Act” shall mean the Securities Exchange Act of
1934, as amended, and any successor statute thereto, as amended from time to
time.


 


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


 


“Global Capital Securities Certificate” means a Capital
Securities Certificate or Restricted Securities Certificate, as the case may
be, evidencing ownership of Capital Securities, the ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in Section 5.4.


 


“Global Capital Security” means those Capital Securities
evidenced by the Global Capital Securities Certificate.


 


“Guarantee” means the Guarantee Agreement executed and
delivered by the Depositor and the Guarantee Trustee, contemporaneously with
the execution and delivery of this Trust Agreement, for the benefit of the
Holders of the Capital Securities, as amended from time to time.


 


“Guarantee Trustee” means Wilmington Trust Company, solely in
its capacity as the trustee that holds the Guarantee for the benefit of the
Holders and not in its individual capacity, or its successor in interest in
such capacity, or any successor trustee appointed as herein provided.


 


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


 


6





















 


“Indemnified Person” has the meaning provided in Section 8.6.


 


“Indenture” means the Junior Subordinated Indenture, dated of
even date herewith, between the Depositor and the Indenture Trustee (as amended
or supplemented from time to time) relating to the issuance of the Junior
Subordinated Debentures.


 


“Indenture Trustee” means Wilmington Trust Company, a
Delaware banking corporation and any successor.


 


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


 


“Investment Company Event” means the receipt by the Issuer
Trust of an Opinion of Counsel experienced in such matters to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change (including any announced prospective 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 Issuer Trust is or 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 issuance of the Capital Securities.


 


“Issuer Trust” means Gainsco Capital Trust I, a Delaware
statutory trust created under the Delaware Statutory Trust Act.


 


“Issuer Trustees” has the meaning specified in the preamble
to this Trust Agreement.


 


“Junior Subordinated Debentures” means the Depositor’s
Floating Rate Junior Subordinated Deferrable Interest Debentures, due March 31,
2036, issued pursuant to the Indenture.


 


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


 


“Like Amount” means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Indenture, allocated to the Common Securities
and to the Capital Securities pro rata based upon the relative Liquidation
Amounts of such classes and (b) with respect to a distribution of Junior
Subordinated Debentures to Holders of Trust Securities in connection with a
dissolution or liquidation of the Issuer Trust, Junior Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the Holder to whom such Junior Subordinated Debentures are
distributed.


 


7





















 


“Liquidation Amount” means the stated amount of $1,000.00 per
Capital Security and $1,000.00 per Common Security.


 


“Liquidation Date” means the date on which Junior
Subordinated Debentures are to be distributed to Holders of Trust Securities in
connection with a dissolution and liquidation of the Issuer Trust pursuant to Section 9.4.


 


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


 


“Majority in Liquidation Amount of the Capital Securities” or
“Majority in Liquidation Amount of the Common
Securities” means, except as provided by the Trust Indenture Act,
Capital Securities or Common Securities, as the case may be, representing more
than 50% of the aggregate Liquidation Amount of all then Outstanding Capital
Securities or Common Securities, as the case may be.


 


“Majority in Liquidation Amount of all Trust Securities”
means, except as provided by the Trust Indenture Act, Trust Securities
representing more than 50% of the aggregate Liquidation Amount of all
then-outstanding Trust Securities.


 


“Officers’ Certificate” means a certificate signed by the
Chairman of the Board, Vice Chairman of the Board, Chief Executive Officer,
President or an Executive Vice President, a Senior Vice President or Vice
President, and by the Treasurer, an Assistant Treasurer, the Chief Financial
Officer, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the party provided herein. 
Any Officers’ Certificate delivered with respect to compliance with a condition
or covenant provided for in this Trust Agreement shall include:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(3)           Trust
Securities that have been paid or for which other Trust Securities have been
executed and delivered in exchange therefor or in lieu thereof pursuant to
Sections 5.4, 5.5 and 5.6; provided, however, that
in determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Capital Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Capital Securities owned by the
Depositor, any Issuer Trustee, any Administrator or any Affiliate of the
Depositor, shall be disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Issuer Trustee or any Administrator shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Capital Securities that such Issuer Trustee or such
Administrator, as the case may be, knows to be so owned shall be so disregarded
and (b) the foregoing shall not apply at any time when all of the
Outstanding Capital Securities are owned by the Depositor, one or more of the
Issuer Trustees, one or more of the Administrators and/or any such
Affiliate.  Capital Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrators the pledgee’s
right so to act with respect to such Capital Securities and that the pledgee is
not the Depositor or any Affiliate of the Depositor.


 


“Owner” means
each Person who is the beneficial owner of Global Capital Securities as
reflected in the records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly), in
accordance with the rules of such Clearing Agency.


 


“Paying Agent”
means any paying agent or co-paying agent appointed pursuant to Section 5.10
and shall initially be the Property Trustee.


 


“Payment Account”
means a segregated non-interest-bearing corporate trust account maintained with
the Property Trustee in its trust department for the benefit of the Holders in
which all amounts paid in respect of the Junior Subordinated Debentures will be
held and from which the Property Trustee, through the Paying Agent, shall make
payments to the Holders in accordance with Sections 4.1, 4.2 and 9.4.


 


“Person” means a
legal person, including any individual, corporation, estate, partnership, joint
venture, association, joint stock company, company, limited liability company,


 


9





















 


trust,
unincorporated organization or government or any agency or political
subdivision thereof, or any other entity of whatever nature.


 


“Placement Agent”
means Keefe, Bruyette & Woods, Inc.


 


“Placement Agreement”
means the Placement Agreement among the Depositor, the Issuer Trust and the
Placement Agent.


 


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


 


“Purchase Agreement”
means, collectively, all purchase agreements executed by or on behalf of the
Depositor, the Issuer Trust, and the Owners.


 


“Redemption Date”
means, with respect to any Trust Security to be redeemed, the date fixed for
such redemption by or pursuant to this Trust Agreement; provided
that each Debenture Redemption Date and the stated maturity of the
Junior Subordinated Debentures shall be a Redemption Date for a Like Amount of
Trust Securities, including but not limited to any date of redemption pursuant
to the occurrence of any Special Event.


 


“Redemption Price”
means a price equal to the Liquidation Amount, together with accumulated
Distributions to, but excluding, the Redemption Date.


 


“Relevant Trustee”
has the meaning specified in Section 8.10.


 


“Responsible Officer”
when used with respect to the Property Trustee means any officer assigned to
the Corporate Trust Office, including any managing director, vice president,
principal, assistant vice president, assistant treasurer, assistant secretary
or any other officer of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers and having
direct responsibility for the administration of the Indenture, and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.


 


“Restricted Capital
Securities” means all Capital Securities, including those
represented by a Capital Securities Certificate, that are required pursuant to Section 5.5(c) to
bear a Restricted Capital Securities Legend. 
Such term includes the Global Capital Securities Certificate.


 


“Restricted Capital
Securities Legend” means a legend substantially in the form of the
legend required in the form of a Capital Securities Certificate set forth in Exhibit D
to be placed upon a Restricted Securities Certificate.


 


“Restricted Securities
Certificate” means a certificate substantially in the form set forth
in Exhibit B.


 


10





















 


“Securities” has
the meaning specified in the recitals to the Indenture.


 


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


 


“Securities Register”
and “Securities Registrar” have the
respective meanings specified in Section 5.5.


 


“Senior Indebtedness”
has the meaning specified in the Indenture.


 


“Special Event”
means any Tax Event or Investment Company Event.


 


“Successor Capital
Securities” has the meaning specified in Section 9.5.


 


“Tax Event”
means the receipt by the Issuer 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 or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of issuance of the Capital
Securities (including, without limitation, any of the foregoing arising with
respect to, or resulting from, any proceeding or other action commencing on or
before such date), there is more than an insubstantial risk that (i) the
Issuer Trust is, or will be within 90 days of the delivery of such Opinion
of Counsel, subject to United States federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures, (ii) interest
payable by the Depositor on the Junior Subordinated Debentures is not, or
within 90 days of the delivery of such Opinion of Counsel will not be,
deductible by the Depositor, in whole or in part, for United States federal
income tax purposes, or (iii) the Issuer Trust is, or will be within
90 days of the delivery of such Opinion of Counsel, subject to more than a
de minimis amount of other taxes, duties
or other governmental charges.


 


“3-Month LIBOR” means the London interbank offered
rate for three-month, U.S. dollar deposits determined by the Indenture Trustee,
with respect to the particular quarterly period, in the following order of
priority:


 


(i) the rate (expressed as a percentage per
annum) for U.S. dollar deposits of an amount equal or comparable to the
aggregate liquidation amount of the Securities having a three-month maturity
that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the particular Determination Date.  “Telerate
Page 3750” means the display designated as “Page 3750” on the Dow
Jones Telerate Service or such other page as may replace Page 3750 on
that service or such other service or services as may be nominated by the
British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollar deposits;


 


11





















 


(ii) if
such rate cannot be identified on the related Determination Date, the Indenture
Trustee will request the principal London offices of four leading banks in the
London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London interbank market for U.S.
dollar deposits of an amount equal or comparable to the aggregate liquidation
amount of the Securities having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. 
If at least two quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations;


 


(iii) 
if fewer than two such quotations are provided as requested in clause (ii) above,
the Indenture Trustee will request four major New York City banks to provide
such banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in U.S. dollars of an amount equal or comparable to
the aggregate liquidation amount of the Securities as of 11:00 a.m.
(London time) on such Determination Date. 
If at least two such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and


 


(iv) if
fewer than two such quotations are provided as requested in clause (iii) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the quarterly
period immediately preceding such current quarterly period.


 


If the
rate for U.S. dollar deposits having a three-month maturity that initially
appears on Telerate Page 3750 or Reuters Page LIBO, as the case may
be, as of 11:00 a.m. (London time) on the related Determination Date is
superseded on the Telerate page 3750 or Reuters Page LIBO, as the
case may be, by a corrected rate by 12:00 noon (London time) on such Determination
Date, then the corrected rate as so substituted on the applicable page will
be the applicable 3-Month LIBOR for such Determination Date.


 


“Trust Agreement” means this Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including (i) all exhibits hereto,
and (ii) for all purposes of this Amended and Restated Trust Agreement and
any such modification, amendment or supplement, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Amended and
Restated Trust Agreement and any such modification, amendment or supplement,
respectively.


 


“Trust Indenture Act” means the Trust Indenture Act of 1939
or any successor statute thereto, in each case as amended from time to time.


 


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


 


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


 


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


 


12





















 


ARTICLE II


 


CONTINUATION OF THE ISSUER TRUST


 


SECTION 2.1.  Name.


 


The
Issuer Trust continued hereby shall be known as “Gainsco Capital Trust I”,
as such name may be modified from time to time by the Administrators following
written notice to the Holders of Trust Securities and the Issuer Trustees, in
which name the Administrators and the Issuer Trustees may engage in the
transactions contemplated hereby, make and execute contracts and other
instruments on behalf of the Issuer Trust and sue and be sued.


 


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


 


The
address of the Delaware Trustee in the State of Delaware is Wilmington Trust
Company, 1100 North Market Street, Rodney Square North, Wilmington, Delaware
19890-0001, Attention:  Corporate Trust
Administration, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Holders and the Depositor.  The principal executive office of the Issuer
Trust is in care of GAINSCO, INC. 3333 Lee Parkway, Suite 1200, Dallas,
Texas 75219, Attention: Chief Financial Officer.


 


SECTION 2.3.  Initial Contribution of Trust Property; Organizational Expenses.


 


The
Property Trustee acknowledges receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10.00, which constitutes the
initial Trust Property.  The Depositor
shall pay all organizational expenses of the Issuer Trust as they arise or
shall, upon request of any Issuer Trustee, promptly reimburse such Issuer
Trustee for any such expenses paid by such Issuer Trustee.  The Depositor shall make no claim upon the
Trust Property for the payment of such expenses.


 


SECTION 2.4.  Issuance of the Restricted Capital Securities.


 


The
Depositor, the Issuer Trust, and the Placement Agent executed and delivered the
Placement Agreement pursuant to the Original Trust Agreement.  Contemporaneously with the execution and
delivery of this Trust Agreement, an Administrator, on behalf of the Issuer
Trust, shall manually execute in accordance with Section 5.3 and the
Property Trustee shall authenticate in accordance with Section 5.3 and
deliver to the Clearing Agency or its custodian, a Global Capital Securities
Certificate, registered in the name of Cede & Co., in an aggregate
amount of 25,000 Capital Securities having an aggregate Liquidation Amount of
$25,000,000.00, against receipt of the aggregate purchase price of such Capital
Securities of $25,000,000.00 by the Property Trustee, subject to any discounts
extended to the purchasers of the Capital.


 


13





















 


SECTION 2.5.  Issuance of the Common Securities; Subscription and Purchase of Junior
Subordinated Debentures.


 


Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrator, on
behalf of the Issuer Trust, shall execute in accordance with Section 5.3
and the Property Trustee shall authenticate and shall deliver to the Depositor,
Common Securities Certificates, registered in the name of the Depositor, having
an aggregate Liquidation Amount of $774,000 against receipt of the aggregate
purchase price of such Common Securities of $774,000 by the Property
Trustee.  Contemporaneously therewith, an
Administrator, on behalf of the Issuer Trust, shall subscribe for and purchase
from the Depositor the Junior Subordinated Debentures, registered in the name
of the Property Trustee for the Issuer Trust, and having an aggregate principal
amount equal to $25,774,000, and, in satisfaction of the purchase price for
such Junior Subordinated Debentures, the Property Trustee, on behalf of the
Issuer Trust, shall deliver to the Depositor the sum of $25,774,000 (being the
sum of the amounts delivered to the Property Trustee pursuant to (i) the
second sentence of Section 2.4, and (ii) the first sentence of this Section 2.5)
and receive on behalf of the Issuer Trust the Junior Subordinated Debentures.


 


SECTION 2.6.  Authorization to Issue Additional Trust Securities;
Authorization to Subscribe and Purchase Additional Junior Subordinated
Debentures.


 


During the period ending 90 days following the date of the Confidential Offering
Memorandum, dated as of January 11, 2006, the Administrators, acting
unanimously on behalf of the Issuer Trust, with the prior written consent of
the Depositor, may cause the Issuer Trust to issue additional Capital
Securities and Common Securities on the same terms and in the manner and relative
proportions set forth in Sections 2.4 and 2.5; provided,
however, that any such additional issuance of Trust Securities shall
occur contemporaneously with the issuance by the Depositor of additional Junior
Subordinated Debentures on the same terms and in the manner set forth in Section 2.5,
which shall be subscribed for and purchased by an Administrator on behalf of
the Issuer Trust, having an aggregate Liquidation Amount equal to the aggregate
Liquidation Amount of the additional Trust Securities to be issued.


 


SECTION 2.7.  Declaration of Trust.


 


The
exclusive purposes and functions of the Issuer Trust are to (a) issue and
sell Trust Securities and use the proceeds from such sale to acquire the Junior
Subordinated Debentures, and (b) engage in only those other activities
necessary, convenient or incidental thereto. 
The Depositor hereby appoints the Issuer Trustees as trustees of the
Issuer Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Issuer Trustees hereby accept such appointment.  The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Issuer Trust and the Holders.  The Depositor hereby appoints the Administrators,
with such Administrators having all rights, powers and duties set forth herein
with respect to accomplishing the purposes of the Issuer Trust, and the
Administrators hereby accept such appointment; provided,
however, that it is the intent of the parties hereto that such
Administrators shall not be trustees or, to the fullest extent permitted by
law, fiduciaries with respect to the Issuer Trust and this Trust Agreement
shall be construed in a manner consistent with such intent.  The Property


 


14





















 


Trustee shall have the
right and power (but shall not be obligated) to perform those duties assigned
to the Administrators.  The Delaware
Trustee, in such capacity, shall not be entitled to exercise any powers, nor
shall the Delaware Trustee, in such capacity, have any of the duties and
responsibilities, of the Property Trustee or the Administrators set forth
herein.  The Delaware Trustee, in such
capacity, shall be one of the trustees of the Issuer Trust for the sole and
limited purpose of fulfilling the requirements of Section 3807 of the
Delaware Statutory Trust Act and for taking such actions as are required to be
taken by a Delaware trustee under the Delaware Statutory Trust Act.


 


SECTION 2.8.  Authorization to Enter into Certain Transactions.


 


(a)           The
Issuer Trustees and the Administrators shall conduct the affairs of the Issuer
Trust in accordance with the terms of this Trust Agreement.  Subject to the limitations set forth in
paragraph (b) of this Section and in accordance with the
following provisions (i) and (ii), the Issuer Trustees and the
Administrators shall act as follows:


 


(i)         each
Administrator, acting jointly or singly, shall:


 


(A)       comply
with the Placement Agreement regarding the issuance and sale of the Trust
Securities;


 


(B)        assist
in compliance with the Securities Act, applicable state securities or blue sky
laws, and the Trust Indenture Act;


 


(C)        assist
in the listing of the Capital Securities upon such securities exchange or
exchanges, if any, as shall be determined by the Depositor, with the
registration of the Capital Securities under the Exchange Act, if required or
if requested by the Depositor, and the preparation and filing of all periodic
and other reports and other documents pursuant to the foregoing;


 


(D)       execute
the Trust Securities on behalf of the Issuer Trust in accordance with this
Trust Agreement;


 


(E)        execute
and deliver an application for a taxpayer identification number for the Issuer
Trust;


 


(F)        assist
in the filing with the Commission, at such time as determined by the Depositor,
any registration statement, if any, under the Securities Act relating to the
Trust Securities, including any amendments thereto;


 


(G)        unless
otherwise required by the Trust Indenture Act, execute on behalf of the Issuer
Trust any documents that the Administrators have the power to execute pursuant
to this Trust Agreement, including without limitation, the Debenture Purchase
Agreement and the Common Securities Purchase Agreement; and


 


15





















 


(H)       take
any action incidental to the foregoing as necessary or advisable to give effect
to the terms of this Trust Agreement.


 


(ii)        The
Property Trustee shall have the power and authority to act on behalf of the
Issuer Trust with respect to the following matters:


 


(A)       the
establishment of the Payment Account;


 


(B)        the
receipt of the Junior Subordinated Debentures;


 


(C)        the
receipt and collection of interest, principal and any other payments made in
respect of the Junior Subordinated Debentures in the Payment Account;


 


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


 


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


 


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


 


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


 


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


 


(I)         after
an Event of Default (other than under paragraph (2), (3), (4), or (5) of
the definition of such term if such Event of Default is by or with respect to
the Property Trustee), comply with the provisions of this Trust Agreement and
take any action to give effect to the terms of this Trust Agreement and protect
and conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder);


 


provided,
however, that nothing in this Section 2.8(a)(ii) shall
require the Property Trustee to take any action that is not otherwise required
in this Trust Agreement.


 


(iii)       The
Administrators shall comply with the listing requirements of the Capital
Securities upon such securities exchange or exchanges, if any, as shall be
determined by the Depositor, the registration of the Capital Securities under
the


 


16





















 


Exchange Act, if required or if requested by the
Depositor, and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing.


 


(b)           So
long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer
Trustees or Administrators acting on behalf of the Issuer Trust) shall not
undertake any business, activity or transaction except as expressly provided
herein or contemplated hereby.  In
particular, neither the Issuer Trustees nor the Administrators shall (i) acquire
any investments or engage in any activities not authorized by this Trust
Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge,
set-off or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as expressly provided herein, (iii) take any
action that would cause the Issuer Trust to become taxable other than as a
grantor trust for United States Federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt, (v) take or
consent to any action that would result in the placement of a Lien on any of
the Trust Property, except as expressly provided herein, (vi) invest any
proceeds received by the Issuer Trust from holding the Junior Subordinated
Debentures, but shall distribute all such proceeds to Holders of Trust
Securities pursuant to the terms of this Trust Agreement and of the Trust
Securities, (vii) acquire any assets other than the Trust Property, (viii) possess
any power or otherwise act in such a way as to vary the Trust Property, (ix) possess
any power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Trust Agreement or by the terms of the Trust Securities) or (x) to issue
any securities or other evidence of beneficial ownership of, or beneficial
interest in, the Issuer Trust other than the Trust Securities.  The Property Trustee shall defend all claims
and demands of all Persons at any time claiming any Lien on any of the Trust
Property adverse to the interest of the Issuer Trust or the Holders in their
capacity as Holders.


 


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


 


(i)         the
preparation, execution and filing with the Commission of a registration
statement on the appropriate form under the Securities Act or the preparation
of offering documents in reliance on one or more exemptions from registration
under the Securities Act with respect to the Capital Securities;


 


(ii)        the
determination of the states in which to take appropriate action to qualify or
register for sale or necessary to obtain any exemption from such qualification
or registration of all or part of the Capital Securities and the determination
of any and all such acts, other than actions that must be taken by or on behalf
of the Issuer Trust, and the advice to the Issuer Trustees of actions they must
take on behalf of the Issuer Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Issuer Trust or on
behalf of the Issuer Trust, as the Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States in connection with
the offer and sale of the Capital Securities;


 


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(iii)       the
negotiation of the terms of, and the execution and delivery of, the Placement
Agreement and the Purchase Agreement; and


 


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


 


(d)           Notwithstanding
anything herein to the contrary, the Administrators and the Property Trustee
are authorized and directed to conduct the affairs of the Issuer Trust and to
operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment
company” required to be registered under the Investment Company Act, and will
not be taxable other than as a grantor trust for United States Federal income
tax purposes and so that the Junior Subordinated Debentures will be treated as
indebtedness of the Depositor for United States Federal income tax
purposes.  In this connection, the
Property Trustee and the Holders of Common Securities are authorized to take
any action, not inconsistent with applicable law, the Certificate of Trust or
this Trust Agreement, that the Property Trustee and Holders of Common
Securities determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the Holders of the Outstanding Capital
Securities.  In no event shall the
Administrators or the Issuer Trustees be liable to the Issuer Trust or the
Holders for any failure to comply with this Section that results from a
change in law or regulations or in the interpretation thereof.


 


SECTION 2.9.  Assets of Trust.


 


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


 


SECTION 2.10.  Title to Trust Property.


 


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


 


ARTICLE III


 


PAYMENT ACCOUNT


 


SECTION 3.1.  Payment Account.


 


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


 


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


 


ARTICLE IV


 


DISTRIBUTIONS; REDEMPTION


 


SECTION 4.1.  Distributions.


 


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


 


(i)         Distributions on the Trust Securities
shall be cumulative and will accumulate whether or not there are funds of the
Issuer Trust available for the payment of Distributions.  Distributions shall accumulate from the date
of issue of the Trust Securities, and, except in the event (and to the extent)
that the Depositor exercises its right to defer the payment of interest on the
Junior Subordinated Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on March 31, June 30, September 30 and December 31
of each year, commencing on March 31, 2006.  If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that is a
Business Day (without any interest, additional Distributions or other payment
in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date on which such payment was originally payable (each date on which
distributions are payable in accordance with this Section 4.1(a), a “Distribution
Date”).


 


(ii)        The Trust Securities shall be entitled
to Distributions payable at a floating rate, reset quarterly on each
Distribution Date for the next succeeding quarter, equal to 3-Month LIBOR rate
of interest for the last London Banking Day (which is any day on which dealings
in deposits in U.S. dollars are transacted in the London interbank market) of
each of March, June, September and December, as applicable, plus 3.85% on the liquidation amount of each Trust Security
(“Floating Rate”).  The amount of
Distributions payable for any full quarterly period shall be computed on the
basis of a 360-day year of twelve 30-day months.  The amount of Distributions for any period
less than a full quarter shall be computed on the basis of a 360-day year and
the actual number of days elapsed during that period.  The amount of Distributions payable for any
period shall include any Additional Amounts in respect of such period.


 


(iii)       So long as no Debenture Event of Default
has occurred and is continuing, the Depositor has the right under the Indenture
to defer the payment of


 


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interest on the Junior Subordinated Debentures at any
time and from time to time for a period not exceeding 20 consecutive
quarterly periods (an “Extension Period”), provided
that no Extension Period may extend beyond March 31, 2036, or
end on a date that is not a scheduled interest payment date.  As a consequence of any such deferral,
quarterly Distributions on the Trust Securities by the Issuer Trust will also
be deferred and the amount of Distributions to which Holders of the Trust
Securities are entitled will accumulate additional Distributions thereon at the
Floating Rate, compounded quarterly, to the extent permitted by applicable law,
from the relevant payment date for such Distributions, computed in the same
manner as set forth for Distributions in subsection 4.1(a)(ii) immediately
above.  The term “Distributions” as used
in Section 4.1 shall include any such additional Distributions provided
pursuant to this Section 4.1(a)(iii).


 


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


 


(b)           Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities at the close of business on the relevant record date, which shall be
at the close of business on the fifteenth day of the month in which the
relevant Distribution Date occurs (or if such date is not a Business Day, the
immediately preceding Business Day).


 


SECTION 4.2.  Redemption.


 


(a)           On
each Debenture Redemption Date and on the stated maturity of the Junior
Subordinated Debentures, the Issuer Trust will be required to redeem a Like
Amount of Trust Securities at the Redemption Price.


 


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


 


(i)         the Redemption Date;


 


(ii)        the Redemption Price, or if the
Redemption Price cannot be calculated prior to the time the notice is required
to be sent, the estimate of the Redemption Price provided pursuant to the
Indenture together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice shall be sent
of the actual Redemption Price on the date, or as soon as practicable
thereafter, that notice of such actual Redemption Price is received pursuant to
the Indenture);


 


(iii)       the CUSIP number or CUSIP numbers of the
Capital Securities affected;


 


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(iv)       if less than all the Outstanding Trust
Securities are to be redeemed, the identification and the aggregate Liquidation
Amount of the particular Trust Securities to be redeemed;


 


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


 


(vi)       the place or places where Trust
Securities are to be surrendered for the payment of the Redemption Price.


 


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


 


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


 


(d)           If
the Issuer Trust gives a notice of redemption in respect of any Capital
Securities, then, by 12:00 noon, Eastern Time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, with respect to
Global Securities, irrevocably deposit with the Clearing Agency for such Global
Capital Securities, to the extent available therefor, funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Global Capital Securities.  With respect
to Capital Securities that are not held in global form, if any, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the
Paying Agent, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders of the
Capital Securities upon surrender of their Capital Securities Certificates or
Restricted Securities Certificates, as applicable.  Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates.  If notice of redemption shall have been given
and funds deposited as required, then, upon the date of such deposit, all
rights of Holders holding Trust Securities so called for redemption will cease,
except the right of such Holders to receive the Redemption Price, but without
interest, and such Trust Securities will cease to be Outstanding.  In the event that any date on which any
applicable


 


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Redemption
Price is payable is not a Business Day, then payment of the applicable
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date.  In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Issuer Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accumulate, as set forth in Section 4.1, from the Redemption Date
originally established by the Issuer Trust for such Trust Securities to the
date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.


 


(e)           Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
such Trust Securities to be redeemed shall be allocated pro rata to the Common
Securities and the Capital Securities based on the relative aggregate
Liquidation Amounts of such classes.  The
particular Capital Securities to be redeemed shall be selected on a pro rata basis based on their respective Liquidation Amounts
not more than 60 days prior to the Redemption Date by the Property Trustee
from the Outstanding Capital Securities not previously called for redemption,
or if the Capital Securities are then held in the form of a Global Preferred
Security in accordance with the customary procedures for the Clearing
Agency.  The Property Trustee shall
promptly notify the Securities Registrar in writing of the aggregate
Liquidation Amount of Capital Securities to be redeemed and the particular
Capital Securities selected for redemption. 
For all purposes of this Trust Agreement, unless the context otherwise
requires, all provisions relating to the redemption of Capital Securities shall
relate, in the case of any Capital Securities redeemed, to the portion of the
aggregate Liquidation Amount of Capital Securities that has been or is to be
redeemed.


 


SECTION 4.3.  Subordination of Common Securities.


 


(a)           Payment
of Distributions (including Additional Amounts, if applicable) on, the
Redemption Price of, and the Liquidation Distribution in respect of, the Trust
Securities, as applicable, shall be made, as set forth in Section 4.2(e),
pro rata among the Common Securities and the Capital Securities based on the
Liquidation Amount of such Trust Securities; provided,
however, that if on any Distribution Date, Redemption Date or
Liquidation Date any Event of Default resulting from a Debenture Event of
Default in Sections 5.1(1) or 5.1(2) of the Indenture shall have
occurred and be continuing, no payment of any Distribution (including any
Additional Amounts) on, Redemption Price of, or Liquidation Distribution in
respect of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be
made, unless payment in full in cash of all accumulated and unpaid
Distributions (including any Additional Amounts) on all Outstanding Capital
Securities for all Distribution periods terminating on or prior thereto, or, in
the case of payment of the Redemption Price, the full amount of such Redemption
Price on all Outstanding Capital Securities then called for redemption, or in
the case of payment of the Liquidation Distribution, the full amount of such
Liquidation Distribution on all Outstanding Capital Securities, shall have been
made or provided for, and all funds immediately available to the


 


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Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
any Additional Amounts) on, or the Redemption Price of, or Liquidation
Distribution in respect of, Capital Securities then due and payable.  The existence of an Event of Default does not
entitle the Holders of Capital Securities to accelerate the maturity thereof.


 


(b)           In
the case of the occurrence of any Event of Default resulting from any Debenture
Event of Default, the Holder of the Common Securities shall be deemed to have
waived any right to act with respect to any such Event of Default under this
Trust Agreement until the effects of all such Events of Default with respect to
the Capital Securities have been cured, waived or otherwise eliminated.  Until all such Events of Default under this
Trust Agreement with respect to the Capital Securities have been so cured,
waived or otherwise eliminated, the Property Trustee shall act solely on behalf
of the Holders of the Capital Securities and not on behalf of the Holder of the
Common Securities, and only the Holders of the Capital Securities will have the
right to direct the Property Trustee to act on their behalf.


 


SECTION 4.4.  Payment Procedures.


 


Payments
of Distributions (including any Additional Amounts) in respect of the Capital
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Capital Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, which will credit
the relevant accounts on the applicable Distribution Dates.  Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.


 


SECTION 4.5.  Tax Returns and Reports.


 


The
Administrators shall prepare (or cause to be prepared), at the Depositor’s
expense, and file all United States federal, state and local tax and information
returns and reports required to be filed by or in respect of the Issuer
Trust.  In this regard, the
Administrators shall (a) prepare and file (or cause to be prepared and
filed) all Internal Revenue Service forms required to be filed in respect of
the Issuer Trust in each taxable year of the Issuer Trust and (b) prepare
and furnish (or cause to be prepared and furnished) to each Holder all Internal
Revenue Service forms required to be provided by the Issuer Trust.  The Administrators shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing.  The
Issuer Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Holders under the Trust Securities.


 


On or
before December 15 of each year during which any Capital Securities are
Outstanding, the Administrators shall furnish to the Paying Agent such
information as may be reasonably requested by the Property Trustee in order
that the Property Trustee may prepare the information which it is required to
report for such year on Internal Revenue Service Forms 1096 and 1099
pursuant to Section 6049 of the Code. 
Such information shall include the amount of original issue discount
includable in income for each Outstanding Capital Security during such year, if
any.


 


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SECTION 4.6.  Payment of Taxes, Duties, Etc. of the Issuer Trust.


 


Upon
receipt under the Junior Subordinated Debentures of Additional Sums, the
Property Trustee shall promptly pay any taxes, duties or governmental charges
of whatsoever nature (other than withholding taxes) imposed on the Issuer Trust
by the United States or any other taxing authority out of the proceeds of the
Additional Sums.


 


SECTION 4.7.  Payments under Indenture or Pursuant to Direct Actions.


 


Any
amount payable hereunder to any Holder of Capital Securities (or Owner with
respect thereof) shall be reduced by the amount of any corresponding payment
such Holder (or Owner) has directly received pursuant to Section 5.8 of
the Indenture or Section 5.13 of this Trust Agreement.


 


SECTION 4.8.  Payment of Costs and Expenses by the Holder of Common Securities.


 


The
Holder of Common Securities shall be liable for the debts and obligations of
the Issuer Trust (including, without limitation, the fees and expenses of the
trustees) as set forth in Section 6.7 of the Indenture regarding
allocation of expenses.


 


ARTICLE V


 


TRUST SECURITIES CERTIFICATES


 


SECTION 5.1.  Initial Ownership.


 


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


 


SECTION 5.2.  The Trust Securities Certificates.


 


(a)           The
Trust Securities Certificates shall be issued in fully registered form.  The Trust Securities Certificates shall be
executed on behalf of the Issuer Trust by manual or facsimile signature of at
least one Administrator.  Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Issuer Trust, shall be validly issued and
entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates.  A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and
subject to the obligations of a Holder hereunder, upon due registration of such
Trust Securities Certificate in such transferee’s name pursuant to Section 5.5.


 


24





















 


(b)           Upon
their original issuance, Capital Securities Certificates shall be issued in the
form of one or more Global Capital Securities Certificates which initially
shall bear a Restricted Capital Securities Legend, registered in the name of
Cede as the Depositary’s nominee and deposited with or on behalf of Depositary
for credit by Depositary to the respective accounts of the Owners thereof (or
such other accounts as they may direct). 
Except as set forth herein, record ownership of the Global Capital
Securities may be transferred, in whole or in part, only to another nominee of
Depositary or to a successor of the Depository or its nominee.


 


(c)           A
single Common Securities Certificate representing the Common Securities shall
be issued to the Depositor in the form of a definitive Common Securities
Certificate.


 


SECTION 5.3.  Execution and Delivery of Trust Securities Certificates.


 


At the
Closing, an Administrator shall execute, on behalf of the Trust, Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, and deliver such Trust Securities Certificates to the
Property Trustee for authentication. 
Upon such delivery, the Property Trustee shall authenticate such Trust
Securities Certificates and deliver such Trust Securities Certificates in
authorized denominations upon the written order of the Trust, executed by an
Administrator thereof, without further corporate action by the Depositor.


 


SECTION 5.4.  Global Capital Securities.


 


(a)           The
Global Capital Securities Certificates issued under this Trust Agreement shall
be registered in the name of Cede, as the nominee of the Clearing Agency and
delivered to such custodian therefor, and such Global Capital Securities
Certificate shall constitute a single Capital Security for all purposes of this
Trust Agreement, and it shall initially bear a Restricted Capital Securities
Legend.


 


(b)           Notwithstanding
any other provision in this Trust Agreement, the Global Capital Security may
not be exchanged in whole or in part for registered Capital Securities, and no
transfer of the Global Capital Security in whole or in part may be registered,
in the name of any Person other than the Clearing Agency for such Global
Capital Security, Cede, or other nominee thereof unless:  (i) such Clearing Agency advises the
Depositor and the Property Trustee in writing that such Clearing Agency is no
longer willing or able to properly discharge its responsibilities as the
Clearing Agency with respect to such Global Capital Security, and the Depositor
is unable to locate a qualified successor within 90 days, (ii) at any time
the Depositary ceases to be a Clearing Agency registered as such under the
Exchange Act, or (iii) the Issuer Trust at its option advises the
Depositary in writing that it elects to terminate the book-entry system through
the Clearing Agency.


 


(c)           If
the Global Capital Security is to be exchanged or canceled in whole, it shall
be surrendered by or on behalf of the Clearing Agency or its nominee to the
Securities Registrar for exchange or cancellation as provided in this Article V.  If the Global Capital


 


25





















 


Security
is to be exchanged or canceled in part, or if another Capital Security is to be
exchanged in whole or in part for a beneficial interest in the Global Capital
Security, then either: (i) the Global Capital Securities Certificate
representing such Global Capital Security shall be so surrendered for exchange
or cancellation as provided in this Article V, or (ii) the
Liquidation Amount thereof shall be reduced or increased by an amount equal to
the portion thereof to be so exchanged or canceled or equal to the Liquidation
Amount of such other Capital Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment
made on the Securities Register, whereupon the Property Trustee, in accordance
with the Applicable Procedures, shall instruct the Clearing Agency or its
authorized representative to make a corresponding adjustment to its
records.  Upon any such surrender or
adjustment of the Global Capital Security by the Clearing Agency, accompanied
by registration instructions, the Property Trustee shall, subject to Section 5.4(b) and
as otherwise provided in this Article V, authenticate and deliver any
Capital Securities or Restricted Capital Securities, as applicable and as
instructed by the Administrators, issuable in exchange for such Global Capital
Security (or any portion thereof) in accordance with the instructions of the
Clearing Agency.  The Property Trustee
shall not 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.


 


(d)           Every
Capital Security or Restricted Capital Security authenticated and delivered
upon registration of, transfer of, or in exchange for or in lieu of, the Global
Capital Security or any portion thereof, whether pursuant to this Article V
or Article IV or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Capital Security, unless such Global Capital
Security is registered in the name of a Person other than the Clearing Agency
for such Global Capital Security or a nominee thereof.


 


(e)           The
Clearing Agency or its nominee, as the registered owner of the Global Capital
Security, shall be considered the Holder of the Capital Securities or the
Restricted Capital Securities represented by the Global Capital Security for
all purposes under this Trust Agreement and the Capital Securities, and owners
of beneficial interests in the Global Capital Security shall hold such
interests pursuant to the Applicable Procedures and, except as otherwise
provided herein, shall not be entitled to have any of the individual Capital
Securities or the Restricted Capital Securities represented by the Global
Capital Security registered in their names, shall not receive nor be entitled
to receive physical delivery of any such Capital Securities or the Restricted
Capital Securities in definitive form and shall not be considered the Holders
thereof under this Trust Agreement. 
Accordingly, any such owner’s beneficial interest in the Global Capital
Security shall be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Clearing Agency or its
nominee.  Neither the Property Trustee
nor the Securities Registrar shall have any liability in respect of any
transfers effected by the Clearing Agency.


 


(f)            The
rights of owners of beneficial interests in the Global Capital Security shall
be exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such owners and the Clearing Agency.


 


26





















 


SECTION 5.5.  Registration of Transfer and Exchange Generally; Certain Transfers and
Exchanges; Capital Securities Certificates; Securities Act Legends. 


 


(a)           The
Property Trustee shall keep or cause to be kept at its Corporate Trust Office a
register or registers (the “Securities Register”) for the purpose of
registering Capital Securities Certificates and Common Securities Certificates
and transfers and exchanges of Capital Securities Certificates and Common
Securities Certificates and acting as the registrar and transfer agent with
respect to the Capital Securities Certificates and Common Securities
Certificates (the “Securities Registrar”), subject to such reasonable
regulations as it may prescribe, and shall provide for the registration of
Capital Securities Certificates and Common Securities Certificates (subject to Section 5.11
in the case of Common Securities Certificates) in the Securities Register.  The Property Trustee is hereby appointed
Securities Registrar.  The Securities
Registrar shall maintain stop transfer instructions in the Securities Register
and as it otherwise deems appropriate to restrict the transfer of Restricted
Capital Securities consistent with the terms of this Agreement.


 


Upon
surrender for registration of transfer of any Capital Securities Certificate at
the offices or agencies of the Property Trustee designated for that purpose,
the Administrators shall execute, and the Property Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Capital Securities Certificates of the same series of any authorized
denominations of like tenor and aggregate principal amount and bearing such
restrictive legends (including the Restricted Capital Securities Legend) as may
be required by this Trust Agreement.


 


At the
option of the Holder, Capital Securities Certificates may be exchanged for
other Capital Securities Certificates of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such restrictive legends
(including the Restricted Capital Securities Legend) as may be required by this
Trust Agreement, upon surrender of the Capital Securities Certificates to be
exchanged at such office or agency of the Property Trustee.  Whenever any securities are so surrendered
for exchange, the Administrators shall execute and the Property Trustee shall
authenticate and deliver the Capital Securities Certificates that the Holder
making the exchange is entitled to receive.


 


All
Capital Securities issued upon any transfer or exchange of Capital Securities
shall be the valid obligations of the Issuer Trust, evidencing the same
obligations, and entitled to the same benefits under this Trust Agreement, as
the Capital Securities surrendered upon such transfer or exchange.


 


Every
Capital Securities Certificate presented or surrendered for transfer or
exchange shall (if so required by the Property Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder’s attorney duly authorized in writing.


 


No
service charge shall be made to a Holder for any transfer or exchange of
Capital Securities Certificates, but the Property Trustee may require payment
of a sum sufficient


 


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to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Capital Securities Certificates.


 


Neither
the Issuer Trust nor the Property Trustee shall be required, pursuant to the
provisions of this Section:  (i) to
issue, register the transfer of, or exchange any Capital Securities
Certificates during a period beginning 15 Business Days before the day of
selection for redemption of Capital Securities pursuant to Article IV and
ending at the close of business on the day of mailing of the notice of
redemption, or (ii) to register the transfer of or exchange any Capital
Security so selected for redemption in whole or in part, except, in the case of
any such Capital Security to be redeemed in part, any portion thereof not to be
redeemed.


 


(b)           Certain
Transfers and Exchanges. 
Notwithstanding any other provision of this Trust Agreement, transfers
and exchanges of Capital Securities and beneficial interests in a Global
Capital Security shall be made only in accordance with this Section 5.5(b).


 


(i)         Non-Global
Restricted Capital Security to Global Capital Security.  If the Holder of a Restricted Capital
Security (other than the Global Capital Security) wishes at any time to
transfer all or any portion of such Restricted Capital Security to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Global Capital Security, such transfer may be effected only in accordance with
the provisions of this clause (b)(i) and subject to the Applicable Procedures.  Upon receipt by the Securities Registrar of (A) such
Restricted Capital Security as provided in Section 5.5(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Capital Security in a specified Liquidation
Amount not greater than the Liquidation Amount of such Restricted Capital
Security to be credited to a specified Clearing Agency Participant’s account,
and (B) a Restricted Securities Certificate duly executed for transfer by
such Holder or such Holder’s attorney duly authorized in writing, then the
Securities Registrar shall cancel such Restricted Capital Security (and issue a
new Restricted Capital Security in respect of any untransferred portion
thereof) as provided in Section 5.5(a) and increase the aggregate
Liquidation Amount of the Global Capital Security by the specified Liquidation
Amount as provided in Section 5.4(c).


 


(ii)        Non-Global
Capital Security to Non-Global Capital Security.  A Capital Security that is not a Global
Capital Security may be transferred, in whole or in part, to a Person who takes
delivery in the form of another Capital Security that is not a Global Capital
Security as provided in Section 5.5(a), provided that if
the Capital Security to be transferred in whole or in part is a Restricted
Capital Security, the Securities Registrar shall have received a Restricted
Securities Certificate duly executed by the transferor Holder or such Holder’s
attorney duly authorized in writing and the Securities Registrar shall only be
required to register the transfer of such Restricted Securities Certificate
upon direction from the Depositor that such transfer is permissible.


 


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(iii)       Exchanges
Between Global Capital Security and Non-Global Capital Security.  A beneficial interest in the Global Capital
Security may be exchanged for a Capital Security that is not a Global Capital
Security only as provided in Section 5.4.


 


(iv)       Certain
Initial Transfers of Non-Global Capital Securities.  In the case of Capital Securities initially
issued other than in global form, an initial transfer or exchange of such
Capital Securities that does not involve any change in beneficial ownership may
be made to an institutional accredited investor or investors as if such
transfer or exchange were not an initial transfer or exchange; provided that written certification shall be provided by the
transferee and transferor of such Capital Securities to the Securities
Registrar that such transfer or exchange does not involve a change in
beneficial ownership.


 


(v)        Limitations
Relating to Principal Amount. 
Notwithstanding any other provision of this Trust Agreement and unless
otherwise specified as permitted by this Trust Agreement, Capital Securities or
portions thereof may be transferred or exchanged only in principal amounts of
not less than $1,000.00.  Any transfer,
exchange or other disposition of Capital Securities in contravention of this Section 5.5(b)(v) shall
be deemed to be void and of no legal effect whatsoever, any such transferee
shall be deemed not to be the Holder or Owner of any beneficial interest in
such Capital Securities for any purpose, including but not limited to the
receipt of Distributions payable on such Capital Securities, such transferee shall
be deemed to have no interest whatsoever in such Capital Securities, and the
Securities Registrar shall not record any such transfer in the Securities
Register.


 


(c)           Restricted
Securities Legend.  Except as set
forth below, all Capital Securities shall bear a Restricted Capital Securities
Legend:


 


(i)         subject
to the following Clauses of this Section 5.5(c), a Capital Security or any
portion thereof that is exchanged, upon transfer or otherwise, for a Global
Capital Security or any portion thereof shall bear the Restricted Capital
Securities Legend while represented thereby;


 


(ii)        subject
to the following Clauses of this Section 5.5(c), a new Capital Security
which is not a Global Capital Security and is issued in exchange for another
Capital Security (including a Global Capital Security) or any portion thereof,
upon transfer or otherwise, shall, if such new Capital Security is required to
be issued in the form of a Restricted Capital Security, bear a Restricted
Capital Securities Legend;


 


(iii)       a new
Capital Security (other than a Global Capital Security) that does not bear a
Restricted Capital Securities Legend may be issued in exchange for or in lieu
of a Restricted Capital Security or any portion thereof that bears such a
legend if, in the Depositor’s judgment, placing such a legend upon such


 


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new Capital Security is not necessary to ensure
compliance with the requirements of the Securities Act and is permissible under
Commission Rule 144(k), and the Property Trustee, at the written direction
of the Administrator of the Issuer Trust in the form of an Officers’
Certificate, shall authenticate and deliver such new Capital Security as
provided in this Article V;


 


(iv)       notwithstanding
the foregoing provisions of this Section 5.5(c), a Successor Capital
Security of a Capital Security that does not bear a Restricted Capital
Securities Legend shall not bear such form of legend, unless the Depositor has
reasonable cause to believe that such Successor Capital Security is a “restricted
security” within the meaning of Rule 144 under the Securities Act, in
which case the Property Trustee, at the written direction of any Administrator
of the Issuer Trust in the form of an Officers’ Certificate, shall authenticate
and deliver a new Capital Security bearing a Restricted Capital Securities
Legend in exchange for such Successor Capital Security as provided in this Article V;
and


 


(v)        Junior
Subordinated Debentures distributed to a Holder of Capital Securities upon
dissolution of the Issuer Trust shall bear a Restricted Capital Securities
Legend, if the Capital Securities bear a similar legend, absent instructions
from the Depositor that such legend can be removed consistent with the
requirements of the Securities Act, and Commission Rule 144 thereunder.


 


SECTION 5.6.  Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.


 


If (a) any mutilated Trust Securities Certificate
shall be surrendered to the Securities Registrar, or if the Securities
Registrar shall receive evidence to its satisfaction of the destruction, loss
or theft of any Trust Securities Certificate and (b) there shall be
delivered to the Securities Registrar and the Administrators such security,
indemnity and/or other assurance as may be required by them, in their
discretion, to save each of them harmless, then in the absence of notice that
such Trust Securities Certificate shall have been acquired by a bona fide purchaser, the Administrators, or any one of them,
on behalf of the Issuer Trust shall execute and make available for delivery,
and the Property Trustee shall authenticate, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new
Trust Securities Certificate of like class, tenor and denomination.  In connection with the issuance of any new
Trust Securities Certificate under this Section, the Administrators or the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection
therewith.  Any duplicate Trust
Securities Certificate issued pursuant to this Section 5.6 shall
constitute conclusive evidence of an undivided beneficial interest in the
assets of the Issuer Trust corresponding to that evidenced by the lost, stolen
or destroyed Trust Securities Certificate, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.


 


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SECTION 5.7.  Persons Deemed Holders.


 


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


 


SECTION 5.8.  Access to List of Holders’ Names and Addresses.


 


Each Holder and each Owner shall be deemed to have
agreed not to hold the Depositor, the Property Trustee, or the Administrators
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.


 


SECTION 5.9.  Maintenance of Office or Agency.


 


The Property Trustee shall designate, with the consent
of the Administrators, which consent shall not be unreasonably withheld, an
office or offices or agency or agencies where Capital Securities Certificates
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer Trustees in respect of the Trust Securities
Certificates may be served.  The Property
Trustee initially designates its Corporate Trust Office as its corporate trust
office for such purposes.  The Property
Trustee shall give prompt written notice to the Depositor, the Administrators
and to the Holders of any change in the location of the Securities Register or
any such office or agency.


 


SECTION 5.10.  Appointment of Paying Agent.


 


The Paying Agent shall make Distributions to Holders
from the Payment Account and shall report the amounts of such Distributions to
the Property Trustee, the Administrators and the Depositor.  Any Paying Agent shall have the revocable
power to withdraw funds from the Payment Account solely for the purpose of
making the Distributions referred to above. 
The Property Trustee may revoke such power and remove any Paying Agent
in its sole discretion.  The Paying Agent
shall initially be the Property Trustee. 
Any Person acting as Paying Agent shall be permitted to resign as Paying
Agent upon 30 days’ written notice to the Administrators and the Property
Trustee.  In the event that the Property
Trustee shall no longer be the Paying Agent or a successor Paying Agent shall
resign or its authority to act be revoked, the Property Trustee shall appoint a
successor (which shall be a bank or trust company) that is reasonably
acceptable to the Administrators to act as Paying Agent.  Such successor Paying Agent or any additional
Paying Agent appointed by the Administrators shall execute and deliver to the
Issuer Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Issuer Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such Holders.  The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property
Trustee.  The provisions of Sections 8.1,
8.3 and 8.6 herein shall apply to the Bank also in its role as


 


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Paying Agent, for so long as the Bank shall act as Paying Agent and, to
the extent applicable, to any other paying agent appointed hereunder.  Any reference in this Trust Agreement to the
Paying Agent shall include any co-paying agent chosen by the Property Trustee,
unless the context requires otherwise.


 


SECTION 5.11.  Ownership of Common Securities by Depositor.


 


At Closing, the Depositor shall acquire and retain
beneficial and record ownership of the Common Securities.  Neither the Depositor nor any successor
Holder of the Common Securities may transfer less than all the Common
Securities, and the Depositor or any such successor Holder may transfer the
Common Securities only (i) in connection with a consolidation or merger of
the Depositor into another Person or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, or (ii) to an
Affiliate of the Depositor in compliance with applicable law (including the
Securities Act and applicable state securities and blue sky laws); provided that, any such
transfer pursuant to clause (ii) shall be subject to the condition that
the transferor shall have obtained (A) either a ruling from the Internal
Revenue Service or an unqualified written Opinion of Counsel by a firm
experienced in such matters addressed to the Issuer Trust and delivered to the
Issuer Trustees to the effect that such transfer will not (1) cause the
Issuer Trust to be treated as issuing a class of interests in the Issuer Trust
differing from the class of interests represented by the Common Securities
originally issued to the Depositor, (2) result in the Issuer Trust acquiring
or disposing of, or being deemed to have acquired or disposed of, an asset, or (3) result
in or cause the Issuer Trust to be treated as anything other than a grantor
trust for United States Federal income tax purposes and (B) an unqualified
written Opinion of Counsel by a firm experienced in such matters addressed to
the Issuer Trust and delivered to the Issuer Trustees to the effect that such
transfer will not cause the Issuer Trust to be an “investment company” or
controlled by an “investment company” that is required to be registered under
the Investment Company Act.  To the
fullest extent permitted by law, any attempted transfer of the Common
Securities, other than as set forth in the immediately preceding sentence,
shall be void.  The Administrators shall
cause each Common Securities Certificate issued to the Depositor to contain a
legend stating “THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH
APPLICABLE LAW AND SECTION 5.11 OF THE TRUST AGREEMENT.”


 


SECTION 5.12.  Notices to Clearing Agency.


 


To the extent that a notice or other communication to
the Holders is required under this Trust Agreement, with respect to Capital
Securities represented by Global Capital Securities Certificates, the
Administrators and the Issuer Trustees shall give all such notices and
communications specified herein to be given to the Clearing Agency, and shall
have no obligations to give such notice or other communication to the Owners.


 


SECTION 5.13.  Rights of Holders.


 


(a)           The legal title to the Trust Property
is vested exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.10, and the Holders shall not have


 


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any right or title therein other than the undivided
beneficial ownership interest in the assets of the Issuer Trust conferred by
their Trust Securities and they shall have no right to call for any partition
or division of property, profits or rights of the Issuer Trust, except as
described below.  The Trust Securities
shall be personal property giving only the rights specifically set forth
therein and in this Trust Agreement.  The
Trust Securities shall have no preemptive or similar rights, and when issued
and delivered to Holders against payment of the purchase price therefor, as
provided herein, will be fully paid and nonassessable by the Issuer Trust.  The Holders of the Trust Securities, in their
capacities as such, shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the
General Corporation Law of the State of Delaware.


 


(b)           For so long as any Capital Securities
remain Outstanding, if, upon a Debenture Event of Default, the Indenture
Trustee fails or the holders of not less than 25% in principal amount of the
outstanding Junior Subordinated Debentures fail to declare the principal of all
of the Junior Subordinated Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Capital Securities then
Outstanding shall have such right to make such declaration by a notice in
writing to the Property Trustee, the Depositor and the Indenture Trustee.


 


At any time after such a declaration of acceleration
with respect to the Junior Subordinated Debentures has been made and before a
judgment or decree for payment of the money due has been obtained by the
Indenture Trustee as provided in the Indenture, the Holders of a Majority in
Liquidation Amount of the Capital Securities, by written notice to the Property
Trustee, the Depositor and the Indenture Trustee, may rescind and annul such
declaration and its consequences if:


 


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


 


(A)       all
overdue installments of interest on all of the Junior Subordinated Debentures,


 


(B)        any
accrued Additional Interest on all of the Junior Subordinated Debentures,


 


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


 


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


 


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


 


If the Property Trustee fails to annul any such
declaration and waive such default, the Holders of at least a Majority in
Liquidation Amount of the Capital Securities shall also have the right to
rescind and annul such declaration and its consequences by written notice to
the Depositor, the Property Trustee and the Indenture Trustee, subject to the
satisfaction of the conditions set forth in clauses (i) and (ii) of
this Section 5.13(b).


 


The Holders of at least a Majority in Liquidation
Amount of the Capital Securities may, on behalf of the Holders of all the
Capital Securities, waive any past default under the Indenture, except a
default in the payment of principal or interest (unless such 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
Indenture Trustee) or a default in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each outstanding Junior Subordinated Debenture.  No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of the Capital Securities, all or part of which is represented by the Global
Capital Securities Certificate, 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
Property Trustee receives such notice. 
The Holders on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to join in such notice, whether or not
such Holders remain Holders after such record date; provided
that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is
90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall
automatically and without further action by any Holder be canceled and of no
further effect.  Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after
expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which 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 5.13(b).


 


(c)           For so long as any Capital Securities
remain Outstanding, to the fullest extent permitted by law and subject to the
terms of this Trust Agreement and the Indenture, upon a Debenture Event of
Default specified in Section 5.1(1) or 5.1(2) of the Indenture,
any Holder of Capital Securities shall have the right to institute a proceeding
directly against the Depositor, pursuant to Section 5.8 of the Indenture,
for enforcement of payment to such Holder of the principal amount of or
interest on Junior Subordinated Debentures having an aggregate principal amount
equal to the aggregate Liquidation Amount of the Capital Securities of such
Holder (a “Direct Action”). 
Except as set forth in Sections 5.13(b) and 5.13(c), the Holders of
Capital


 


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Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Junior Subordinated
Debentures.


 


ARTICLE VI


 


ACTS OF HOLDERS; MEETINGS; VOTING


 


SECTION 6.1.  Limitations on Holders’ Voting Rights.


 


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


 


(b)           So long as any Junior Subordinated
Debentures are held by the Property Trustee on behalf of the Issuer Trust, the
Property Trustee shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
execute any trust or power conferred on the Property Trustee with respect to
such Junior Subordinated Debentures, (ii) waive any past default that may
be waived under Section 5.13 of the Indenture, (iii) exercise any
right to rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures shall be due and payable or (iv) consent to any
amendment, modification or termination of the Indenture or the Junior
Subordinated Debentures, where such consent shall be required, without, in each
case, obtaining the prior approval of the Holders of at least a Majority in
Liquidation Amount of the Capital Securities, provided,
however, that where a consent under the Indenture would require the
consent of each holder of Junior Subordinated Debentures affected thereby, no
such consent shall be given by the Property Trustee without the prior written
consent of each Holder of Capital Securities. 
The Property Trustee shall not revoke any action previously authorized
or approved by a vote of the Holders of Capital Securities, except by a
subsequent vote of the Holders of Capital Securities.  The Property Trustee shall notify all Holders
of the Capital Securities of any notice of default received with respect to the
Junior Subordinated Debentures.  In
addition to obtaining the foregoing approvals of the Holders of the Capital
Securities, prior to taking any of the foregoing actions, the Property Trustee
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that such action will not cause the
Issuer Trust to be taxable other than as a grantor trust for United States
Federal income tax purposes.


 


(c)           If any proposed amendment to the
Trust Agreement provides for, or the Issuer Trust otherwise proposes to effect,
(i) any action that would adversely affect in any material respect the
interests, powers, preferences or special rights of the Capital Securities,
whether by way of amendment to the Trust Agreement or otherwise, or (ii) the
dissolution, winding-up or termination of the Issuer Trust, other than pursuant
to the terms of this Trust Agreement, then the Holders of Outstanding Trust
Securities as a class will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval
of the Holders of at least a Majority in Liquidation Amount of the Capital


 


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Securities. 
Notwithstanding any other provision of this Trust Agreement, no
amendment to this Trust Agreement may be made if, as a result of such
amendment, it would cause the Issuer Trust to be taxable other than as a
grantor trust for United States Federal income tax purposes.


 


SECTION 6.2.  Notice of Meetings.


 


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


 


SECTION 6.3.  Meetings of Holders.


 


No annual meeting of Holders is required to be
held.  The Property Trustee, however,
shall call a meeting of Holders to vote on any matter upon the written request
of the Holders of record of 25% of the aggregate Liquidation Amount of the
Capital Securities and the Administrators or the Property Trustee may, at any
time in their discretion, call a meeting of Holders of Capital Securities to
vote on any matters as to which Holders are entitled to vote.


 


Holders of at least a Majority in Liquidation Amount
of the Capital Securities, present in person or represented by proxy, shall
constitute a quorum at any meeting of Holders of the Capital Securities.


 


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


 


SECTION 6.4.  Voting Rights.


 


Holders shall be entitled to one vote for each
$1,000.00 of Liquidation Amount represented by their Outstanding Trust
Securities in respect of any matter as to which such Holders are entitled to
vote.


 


SECTION 6.5.  Proxies, etc.


 


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


 


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


 


SECTION 6.6.  Holder Action by Written Consent.


 


Any action that may be taken by Holders at a meeting
may be taken without a meeting and without prior notice if Holders holding at
least a Majority in Liquidation Amount of all Trust Securities entitled to vote
in respect of such action (or such larger proportion thereof as shall be
required by any other provision of this Trust Agreement) shall consent to the
action in writing.


 


SECTION 6.7.  Record Date for Voting and Other Purposes.


 


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


 


SECTION 6.8.  Acts of Holders.


 


Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Trust Agreement
to be given, made or taken by Holders may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as otherwise
expressly provided herein, such action shall become effective when such
instrument or instruments are delivered to the Property Trustee.  Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as an “Act” of the Holders signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Trust Agreement and (subject to Section 8.1) conclusive in favor of
the Issuer Trustees, if made in the manner provided in this Section.


 


The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof.  Where such execution is by a
signer acting in a capacity other than his individual capacity, such


 


37





















 


certificate or affidavit shall also constitute sufficient proof of his
authority.  The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any Issuer
Trustee or Administrator receiving the same deems sufficient.


 


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


 


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


 


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


 


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


 


SECTION 6.9.  Inspection of Records.


 


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


 


ARTICLE VII


 


REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


(a)           The Property Trustee is a banking
corporation with trust powers, duly organized, validly existing and in good
standing under the laws of the State of Delaware with the trust powers and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of this Trust Agreement.


 


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(b)           The execution, delivery and
performance by the Property Trustee of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the Property
Trustee; and this Trust Agreement has been duly executed and delivered by the
Property Trustee, and constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, receivership, conservatorship,
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 the enforcement of such remedies is considered in a
proceeding in equity or at law).


 


(c)           The execution, delivery and
performance of this Trust Agreement by the Property Trustee: (i) do not
conflict with or constitute a breach of the certificate of incorporation or
by-laws of the Property Trustee; (ii) will not violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any of the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Property Trustee is a
party or by which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case may be,
governing the banking and trust powers of the Property Trustee or any order,
judgment or decree applicable to the Property Trustee.


 


(d)           No consent, approval or authorization
of, or registration with or notice to, any state or federal banking authority
is required for the execution, delivery or performance by the Property Trustee,
of this Trust Agreement.


 


(e)           The Delaware Trustee is duly
organized, validly existing and in good standing under the laws of the State of
Delaware, with the trust powers and authority to execute and deliver, and to
carry out and perform its obligations under the terms of, this Trust Agreement.


 


(f)            The execution, delivery and
performance by the Delaware Trustee of this Trust Agreement have been duly
authorized by all necessary corporate action on the part of the Delaware
Trustee; and this Trust Agreement has been duly executed and delivered by the
Delaware Trustee, and constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, receivership, conservatorship,
moratorium, insolvency, and other similar laws affecting creditors’ right generally
and to general principles of equity and the discretion of the court (regardless
of whether the enforcement of such remedies is considered in a proceeding in
equity or at law).


 


(g)           The execution, delivery and
performance of this Trust Agreement by the Delaware Trustee: (i) do not
conflict with or constitute a breach of the certificate of incorporation or
by-laws of the Delaware Trustee; (ii) will not violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or result
in the creation or imposition of, any Lien on any of the Trust Property
pursuant to the provisions of, any indenture, mortgage, credit agreement,
license or other agreement or instrument to which the Delaware


 


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Trustee is a party or by which it is bound, or (iii) violate
any law, governmental rule or regulation of the United States or the State
of Delaware, as the case may be, governing the banking and trust powers of the
Delaware Trustee or any order, judgment or decree applicable tot eh Delaware
Trustee.


 


(h)           No consent, approval or authorization
of, or registration with or notice to any state or Federal banking authority is
required for the execution, delivery or performance by the Delaware Trustee, of
this Trust Agreement.


 


(i)            The Delaware Trustee is an entity
that has its principal place of business in the State of Delaware.


 


SECTION 7.2.  Representations and Warranties of Depositor.


 


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


 


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


 


(b)           There are no taxes, fees or other
governmental charges payable by the Issuer Trust (or the Issuer Trustees on
behalf of the Issuer Trust) under the laws of the State of Delaware or any
political subdivision thereof in connection with the execution, delivery and
performance by either the Property Trustee or the Delaware Trustee, as the case
may be, of this Trust Agreement.


 


ARTICLE VIII


 


THE ISSUER TRUSTEES; THE ADMINISTRATORS


 


SECTION 8.1.  Certain Duties and Responsibilities.


 


(a)           The duties and responsibilities of
the Issuer Trustees and the Administrators shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture
Act.  Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Issuer Trustees or the
Administrators to expend or risk their own funds or otherwise incur any
financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.  Whether or not herein expressly so provided,
every provision of this Trust Agreement relating to the conduct or affecting
the liability of or affording protection to the Issuer Trustees or the
Administrators shall be subject to the provisions of this Section.  Nothing in this Trust Agreement shall be
construed to release an Administrator or an Issuer Trustee from liability for
its own negligent action, its own negligent failure to act, or its


 


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own willful misconduct.  To the extent that, at law or in equity, an
Issuer Trustee or Administrator has duties and liabilities relating to the
Issuer Trust or to the Holders, such Issuer Trustee or Administrator shall not
be liable to the Issuer Trust or to any Holder for such Issuer Trustee’s or
Administrator’s good faith reliance on the provisions of this Trust
Agreement.  The provisions of this Trust
Agreement, to the extent that they restrict the duties and liabilities of the
Issuer Trustees and Administrators otherwise existing at law or in equity, are
agreed by the Depositor and the Holders to replace such other duties and
liabilities of the Issuer Trustees and Administrators.


 


(b)           All payments made by the Property
Trustee or a Paying Agent in respect of the Trust Securities shall be made only
from the revenue and proceeds from the Trust Property and only to the extent
that there shall be sufficient revenue or proceeds from the Trust Property to
enable the Property Trustee or a Paying Agent to make payments in accordance
with the terms hereof.  Each Holder, by
its acceptance of a Trust Security, agrees that it will look solely to the revenue
and proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that neither the Issuer Trustees nor
the Administrators are personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security.  This Section 8.1(b) does
not limit the liability of the Issuer Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.


 


(c)           The Property Trustee, before the
occurrence of any Event of Default 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 Trust Agreement (including pursuant to Section 10.10),
and no implied covenants shall be read into this Trust Agreement against the
Property Trustee.  If an Event of Default
has occurred (that has not been cured or waived pursuant to Section 5.13
of the Indenture), the Property Trustee shall enforce this Trust Agreement for
the benefit of the Holders and shall exercise such of the rights and powers
vested in it by this Trust Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


 


(d)           No provision of this Trust Agreement
shall be construed to relieve the Property Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:


 


(i)         prior
to the occurrence of any Event of Default and after the curing or waiving of
all such Events of Default that may have occurred:


 


(A)       the duties and obligations of the
Property Trustee shall be determined solely by the express provisions of this
Trust Agreement (including pursuant to Section 10.10), and the Property
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Trust Agreement (including
pursuant to Section 10.10); and


 


(B)        in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may conclusively rely, as to the
truth of the


 


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statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Trust Agreement; but in the
case of any such certificates or opinions that by any provision hereof or of
the Trust Indenture Act are specifically required to be furnished to the
Property Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this Trust
Agreement;


 


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


 


(iii)       the
Property Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of at least a Majority in Liquidation Amount of the Capital Securities
relating to the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;


 


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


 


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


 


(vi)       the
Property Trustee shall not be responsible for monitoring the compliance by the
Administrators or the Depositor with their respective duties under this Trust
Agreement, nor shall the Property Trustee be liable for the default or
misconduct of any other Issuer Trustee, the Administrators or the Depositor;
and


 


(vii)      no
provision of this Trust Agreement shall require the Property Trustee to expend
or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers, if the Property Trustee shall have reasonable grounds for believing
that the repayment of such funds or liability is not reasonably assured to it
under the terms of this Trust Agreement or adequate indemnity against such risk
or liability is not reasonably assured to it.


 


(e)           The Administrators shall not be
responsible for monitoring the compliance by the Issuer Trustees or the
Depositor with their respective duties under this Trust Agreement,


 


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nor shall any Administrator be liable for the default
or misconduct of any other Administrator, the Issuer Trustees or the Depositor.


 


SECTION 8.2.  Certain Notices.


 


(a)           Within 15 Business Days after the
occurrence of any Event of Default actually known to the Property Trustee or a
Responsible Officer of the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the Holders and the Administrators, unless such
Event of Default shall have been cured or waived.


 


(b)           Within five Business Days after the
receipt of notice of the Depositor’s exercise of its right to defer the payment
of interest on the Junior Subordinated Debentures pursuant to the Indenture,
the Property Trustee shall transmit, in the manner and to the extent provided
in Section 10.8, notice of such exercise to the Holders and the
Administrators, unless such exercise shall have been revoked.


 


SECTION 8.3.  Certain Rights of Property Trustee.


 


Subject to the provisions of Section 8.1:


 


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


 


(b)           any direction or act of the Depositor
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers’ Certificate;


 


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


 


(d)               the
Property Trustee may consult with counsel of its own choosing (which counsel
may be counsel to the Depositor or any of its Affiliates, and may include any
of its employees) and the written advice of such counsel shall be protection
and the Property Trustee shall incur no personal liability in respect of any
action taken suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice; the Property Trustee shall have the
right at any time to seek instructions concerning the administration of this
Trust Agreement from any court of competent jurisdiction;


 


(e)               the
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any
of the Holders pursuant to this Trust Agreement, unless such Holders shall have
offered to the Property


 


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Trustee
security or indemnity 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 8.3(e) shall
be taken to relieve the Property Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by
this Trust Agreement;


 


(f)            the Property Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, debenture, note or other evidence of
indebtedness or other paper or document, unless requested in writing to do so
by one or more Holders, but the Property Trustee may make such further inquiry
or investigation into such facts or matters as it may see fit;


 


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


 


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


 


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


 


No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on any Issuer Trustee or Administrator 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 Property 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 any Issuer Trustee or Administrator shall be construed
to be a duty.


 


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SECTION 8.4.  Not Responsible for Recitals or Issuance of Securities.


 


The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Issuer Trust, and neither the Issuer
Trustees nor the Administrators assume any responsibility for their
correctness.  The Issuer Trustees and the
Administrators shall not be accountable for the use or application by the
Depositor of the proceeds of the Junior Subordinated Debentures.


 


SECTION 8.5.  May Hold Securities.


 


The Depositor, the Administrators, any Issuer Trustee or any other
agent of any Issuer Trustee or the Issuer Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject to
Sections 5.5(c), 8.8 and 8.13 and except as provided in the definition of the
term “Outstanding” in Article I, may otherwise deal with the Issuer Trust
with the same rights it would have if it were not the Depositor, an
Administrator, Issuer Trustee or such other agent.


 


SECTION 8.6.  Compensation; Indemnity; Fees.


 


The Depositor agrees:


 


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


 


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


 


(c)           to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) each Issuer Trustee, (ii) each
Administrator, (iii) any Affiliate of any Issuer Trustee, (iv) any
officer, director, shareholder, employee, representative or agent of any Issuer
Trustee, and (v) any employee or agent of the Issuer Trust, (referred to
herein as an “Indemnified Person”) from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever
incurred by such Indemnified Person arising out of or in connection with the
creation, operation or dissolution of the Issuer Trust or any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Issuer Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Trust Agreement, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of negligence, bad faith or willful misconduct with
respect to such acts or omissions.


 


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The provisions of this Section 8.6
shall survive the termination of this Trust Agreement and the resignation or
removal of the Indemnified Persons.


 


The obligation of the
Depositor under this Section 8.6 to compensate, reimburse and indemnify
the Issuer Trustees shall be secured by a Lien upon all Trust Property (except
funds held in trust for the benefit of Holders of particular Trust Securities),
but only to the extent of the interest of the Holder of the Common Securities
therein.


 


The Depositor, any
Administrator and any Issuer Trustee 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 Issuer Trust, and the
Issuer Trust and the Holders of Trust Securities shall have no rights by virtue
of this Trust Agreement 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 Issuer Trust, shall not be deemed wrongful
or improper.  Neither the Depositor, any
Administrator, nor any Issuer Trustee shall be obligated to present any
particular investment or other opportunity to the Issuer Trust even if such
opportunity is of a character that, if presented to the Issuer Trust, could be
taken by the Issuer Trust, and the Depositor, any Administrator or any Issuer
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 Issuer Trustee
may engage or be interested in any financial or other transaction with the
Depositor or any Affiliate of the Depositor, or may act as depository for,
trustee or agent for, or act on any committee or body of holders of, securities
or other obligations of the Depositor or its Affiliates.


 


SECTION 8.7.  Corporate Property Trustee Required; Eligibility of Trustees and Administrators.


 


(a)           There shall at all times be a
Property Trustee hereunder with respect to the Trust Securities.  The Property Trustee shall be a Person that
is a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least
$100,000,000.  If any such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of its supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.  If at
any time the Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article VIII.  At the time of
appointment, the Property Trustee must have securities rated in one of the
three highest rating categories by a nationally recognized statistical rating
organization.


 


(b)           There shall at all times be one or
more Administrators hereunder.  Each
Administrator shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more persons authorized to bind
that entity.  An employee, officer or
Affiliate of the Depositor may serve as an Administrator.


 


(c)           There shall at all times be a
Delaware Trustee.  The Delaware Trustee shall
either be (i) a natural person who is at least 21 years of age and a
resident of the State of


 


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Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.


 


SECTION 8.8.  Conflicting Interests.


 


(a)           If the Property Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.


 


(b)           The Guarantee and the Indenture shall
be deemed to be sufficiently described in this Trust Agreement for the purposes
of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.


 


SECTION 8.9.  Co-Trustees and Separate Trustee.


 


Unless and until a Debenture Event of Default shall have occurred and
be continuing, at any time or times, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any
part of the Trust Property may at the time be located, the Holder of the Common
Securities and the Administrators shall have power to appoint one or more
Persons either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to the extent required by law to act as
separate trustee of any such property, in either case with such powers as may
be provided in the instrument of appointment, and to vest in such Person or
Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section.  If a Debenture Event of Default shall have
occurred and be continuing, the Property Trustee shall have the power with the
consent of the Holders to appoint such a co-trustee or separate trustee, and upon
the written request of the Property Trustee, the Depositor and the
Administrators shall for such purpose join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint such co-trustee or separate trustee.  Any co-trustee or separate trustee appointed
pursuant to this Section shall either be (i) a natural person who is
at least 21 years of age and a resident of the United States or (ii) a
legal entity with its principal place of business in the United States that
shall act through one or more persons authorized to bind such entity.


 


Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to such
co-trustee or separate trustee such property, title, right, or power, any and
all such instruments shall, on request, be executed, acknowledged and delivered
by the Depositor.


 


Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:


 


(a)           The Trust Securities shall be
executed by one or more Administrators, and the Trust Securities shall be
authenticated and delivered by the Property Trustee and all rights,


 


47





















 


powers, duties, and obligations hereunder in respect
of the custody of securities, cash and other personal property held by, or
required to be deposited or pledged with, the Property Trustee specified
hereunder, shall be exercised, solely by the Property Trustee and not by such
co-trustee or separate trustee.


 


(b)           The rights, powers, duties, and
obligations hereby conferred or imposed upon the Property Trustee in respect of
any property covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Property Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument appointing such
co-trustee or separate trustee, except to the extent that under any law of any
jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.


 


(c)           The Property Trustee at any time, by
an instrument in writing executed by it, with the written concurrence of the
Depositor, may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section, and, in case a Debenture Event of Default
has occurred and is continuing, the Property Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor.  Upon
the written request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or removal.  A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided in this Section 8.9.


 


(d)           No co-trustee or separate trustee
hereunder shall be personally liable by reason of any act or omission of the
Property Trustee or any other trustee hereunder.


 


(e)           The Property Trustee shall not be
liable by reason of any act of a co-trustee or separate trustee.


 


(f)            Any Act of Holders delivered to the
Property Trustee shall be deemed to have been delivered to each such co-trustee
and separate trustee.


 


SECTION 8.10.  Resignation and Removal; Appointment of Successor.


 


(a)           No resignation or removal of any
Issuer 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 Section 8.11.


 


(b)           Subject to the immediately preceding
paragraph, a Relevant Trustee may resign at any time by giving written notice
thereof to the Holders and the Depositors. 
The Holder of the Common Securities shall appoint a successor by
requesting from at least three Persons meeting the eligibility requirements of Section 8.7
such Persons’ expenses and charges to serve as the successor trustee on a form
provided by the Administrators, and selecting the


 


48





















 


Person who agrees to the lowest expenses and
charges.  If the instrument of acceptance
by the successor trustee required by Section 8.11 shall not have been
delivered to the Relevant Trustee within 60 days after the giving of such
notice of resignation, the Relevant Trustee may petition, at the expense of the
Issuer Trust, any court of the State of Delaware for the appointment of a
successor Relevant Trustee.


 


(c)           The Property Trustee or the Delaware
Trustee may be removed (i) at any time without cause by the holder of the
Common Securities or (ii) for cause or if a Debenture Event of
Default shall have occurred and be continuing at any time, by Act of the
Holders of at least a Majority in Liquidation Amount of the Capital Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Issuer Trust).


 


(d)           If a Relevant Trustee shall be
removed or become incapable of acting as Issuer Trustee, or if any vacancy
shall occur in the office of any Issuer Trustee for any cause, the Holder of
the Common Securities shall promptly appoint a successor Relevant Trustee or
Trustees, and such successor Issuer Trustee shall comply with the applicable
requirements of Section 8.11, provided, however, if
a Debenture Event of Default shall have occurred and be continuing at such
time, the Holders of the Capital Securities, by Act of the Holders of record of
not less than 25% in aggregate Liquidation Amount of the Capital Securities
then Outstanding delivered to such Relevant Trustee, shall appoint such
successor trustee.  If no successor
trustee shall have been so appointed by the Holder of the Common Securities or
the Holders of the Capital Securities, as applicable, or shall not have
accepted appointment in the manner required by Section 8.11 hereof, any
Holder, on behalf of himself and all others similarly situated, or any other
Issuer Trustee, may petition any court in the State of Delaware for the
appointment of a successor trustee.


 


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


 


(f)            Notwithstanding the foregoing or any
other provision of this Trust Agreement, in the event any Delaware Trustee who
is a natural person dies or becomes, in the opinion of the Holder of the Common
Securities, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Property Trustee following the
procedures regarding expenses and charges set forth above (with the successor
in each case being a Person who satisfies the eligibility requirements for the
Delaware Trustee, as the case may be, set forth in Section 8.7).


 


SECTION 8.11.  Acceptance of Appointment by Successor.


 


In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each such successor Relevant Trustee (if
requested by the Depositor) with respect to the Trust Securities shall execute,
acknowledge and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall


 


49





















 


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 Trust
Securities and the Issuer Trust, and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Issuer Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustee a co-trustee, 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 Issuer 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
Trust Securities and the Issuer Trust.


 


Upon request of any such successor Relevant Trustee, the Issuer Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the preceding paragraph.


 


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


 


SECTION 8.12.  Merger, Conversion, Consolidation or Succession to Business.


 


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


 


SECTION 8.13.  Preferential Collection of Claims Against Depositor or Issuer Trust.


 


If and when the Property Trustee shall be or become a creditor of the
Depositor (or any other obligor upon the Trust Securities), the Property
Trustee shall be subject to the provisions of the Trust Indenture Act regarding
the collection of claims against the Depositor (or any such other obligor).


 


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SECTION 8.14.  Trustee May File Proofs of Claim.


 


In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial
proceeding relative to the Issuer Trust or any other obligor upon the Trust
Securities or the property of the Issuer Trust or of such other obligor, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable and irrespective of whether the
Property Trustee shall have made any demand on the Issuer Trust for the payment
of any past due Distributions) shall be entitled and empowered, to the fullest
extent permitted by law, by intervention in such proceeding or otherwise:


 


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


 


(b)           to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Property Trustee and, in the event
the Property Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property
Trustee.


 


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


 


SECTION 8.15.  Reports by Property Trustee.


 


(a)           Not later than January 31 of
each year commencing with January 31, 2006, the Property Trustee shall
transmit to all Holders in accordance with Section 10.8, and to the
Depositor, a brief report dated as of the immediately preceding December 31
with respect to:


 


(i)         its
eligibility under Section 8.7 or, in lieu thereof, if to the best of its
knowledge it has continued to be eligible under said Section, a written
statement to such effect; and


 


(ii)        any
change in the property and funds in its possession as Property Trustee since the
date of its last report and any action taken by the Property Trustee in the
performance of its duties hereunder which it has not previously reported and
which in its opinion materially affects the Trust Securities.


 


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(b)           In addition the Property Trustee
shall transmit to Holders such reports concerning the Property Trustee and its
actions under this Trust Agreement as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.


 


(c)           A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Property Trustee with
the Depositor.


 


SECTION 8.16.  Reports to the Property Trustee.


 


The Depositor and the Administrators on behalf of the Issuer Trust
shall provide to the Property Trustee such documents, reports and information
as required or specified by Section 314 of the Trust Indenture Act (if any
and to the extent applicable) and the compliance certificate required or specified
by Section 314(a) of the Trust Indenture Act in the form, in the
manner and at the times set forth in Section 314 of the Trust Indenture
Act.  The Depositor and the
Administrators shall annually file with the Property Trustee a certificate
specifying whether such Person is in compliance with all the terms and
covenants applicable to such Person hereunder.


 


SECTION 8.17.  Evidence of Compliance with Conditions Precedent.


 


Each of the Depositor and the Administrators on behalf of the Issuer
Trust shall provide to the Property Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Trust Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act.  Any certificate or
opinion required to be given by an officer pursuant to Section 314(c)(1) of
the Trust Indenture Act shall be given in the form of an Officers’ Certificate.


 


SECTION 8.18.  Number of Issuer Trustees.


 


(a)           The number of Issuer Trustees shall
be two; provided, however, the Property Trustee
and the Delaware Trustee may be the same Person, in which case, the number of
Issuer Trustees may be one.


 


(b)           If an Issuer Trustee ceases to hold
office for any reason, a vacancy shall occur. 
The vacancy shall be filled with an Issuer Trustee appointed in
accordance with Section 8.10.


 


(c)           The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of an
Issuer Trustee shall not operate to dissolve, terminate or annul the Issuer
Trust or terminate this Trust Agreement.


 


SECTION 8.19.  Delegation of Power.


 


(a)           Any Administrator may, by power of
attorney consistent with applicable law, delegate to any other natural person
over the age of 21 his or her power for the purpose of executing any documents
contemplated in Section 2.8(a) or making any governmental filing; and


 


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(b)           The Administrators shall have power
to delegate from time to time to such of their number the doing of such things
and the execution of such instruments either in the name of the Issuer Trust or
the names of the Administrators or otherwise as the Administrators may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement.


 


SECTION 8.20.  Appointment of Administrators.


 


(a)           The Administrators shall be appointed
by the Holder of the Common Securities and may be removed by the Holder of the
Common Securities or may resign at any time. 
Upon any resignation or removal, the Holder of the Common Securities
shall appoint a successor Administrator. 
Each Administrator shall execute this Trust Agreement thereby agreeing
to comply with, and be legally bound by, all of the terms, conditions and
provisions of this Trust Agreement.  If
at any time there is no Administrator, the Property Trustee or any Holder who
has been a Holder of Trust Securities for at least six months may petition any
court of competent jurisdiction for the appointment of one or more Administrators.


 


(b)           Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the appointment of
an Administrator in accordance with this Section 8.20, the Administrators
in office, regardless of their number (and notwithstanding any other provision
of this Agreement), shall have all the powers granted to the Administrators and
shall discharge all the duties imposed upon the Administrators by this Trust
Agreement.


 


(c)           Notwithstanding the foregoing, or any
other provision of this Trust Agreement, in the event any Administrator who is
a natural person dies or becomes, in the opinion of the Holder of the Common
Securities, incompetent, or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Holder of the Common Securities
(with the successor being a Person who satisfies the eligibility requirement
for Administrators, as the case may be, set forth in Section 8.7).


 


Except as otherwise provided in this Trust Agreement, or by applicable
law, any one Administrator may execute any document or otherwise take any
action that the Administrators are authorized to take under this Trust
Agreement.


 


ARTICLE IX


 


DISSOLUTION, LIQUIDATION AND MERGER


 


SECTION 9.1.  Dissolution Upon Expiration Date.


 


Unless earlier dissolved, the Issuer Trust shall automatically dissolve
on December 31, 2036 (the “Expiration Date”), and thereafter the
Trust Property shall be distributed in accordance with Section 9.4.


 


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SECTION 9.2.  Early Dissolution.


 


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


 


(a)           the occurrence of the appointment of
a receiver or other similar official in any liquidation, insolvency or similar
proceeding with respect to the Depositor or all or substantially all of its
property, or entry by a court or other governmental agency of a decree or order
and such decree or order shall remain unstayed and undischarged for a period of
60 days, unless the Depositor shall transfer the Common Securities as
provided by Section 5.11, in which case this provision shall refer instead
to any such successor Holder of the Common Securities;


 


(b)           the written direction to the Property
Trustee from the Holder of the Common Securities at any time to dissolve the
Issuer Trust and, after paying or making reasonable provision to pay all
charges and obligations of the Issuer Trust in accordance with Section 3808(e) of
the Delaware Statutory Trust Act, to distribute the Junior Subordinated
Debentures to Holders in exchange for the Trust Securities (which direction,
subject to Section 9.4(a), is optional and wholly within the discretion of
the Holder of the Common Securities);


 


(c)           the repayment of all of the Capital
Securities in connection with the repayment at maturity or redemption of all
the Junior Subordinated Debentures; and


 


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


 


SECTION 9.3.  Termination.


 


As soon as is practicable after the occurrence of an event referred to
in Section 9.1 or 9.2, and upon the completion of the winding-up and
liquidation of the Issuer Trust, the Administrators and the Issuer Trustees
(each of whom is hereby authorized to take such action) shall file a
certificate of cancellation with the Secretary of State of the State of
Delaware terminating the Issuer Trust and, upon such filing, the respective
obligations and responsibilities of the Issuer Trustees, the Administrators and
the Issuer Trust created and continued hereby shall terminate.


 


SECTION 9.4.  Liquidation.


 


(a)           If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.2 occurs
or upon the Expiration Date, the Issuer Trust shall be wound-up and liquidated
by the Property Trustee as expeditiously as the Property Trustee determines to
be possible by distributing, after paying or making reasonable provision to pay
all claims and obligations of the Issuer Trust in accordance with Section 3808(e) of
the Delaware Statutory Trust Act, to each Holder a Like Amount of Junior
Subordinated Debentures, subject to Section 9.4(d).  Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid, mailed not later than 15
nor more than 45 days prior to the Liquidation Date to each Holder of
Trust


 


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Securities at such Holder’s address appearing in the
Securities Register.  All notices of
liquidation shall:


 


(i)         state
the Liquidation Date;


 


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


 


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


 


(b)           Except where Section 9.2(c) or
9.4(d) applies, in order to effect the liquidation of the Issuer Trust and
distribution of the Junior Subordinated Debentures to Holders, the Property
Trustee shall establish a record date for such distribution (which shall be not
more than 30 days prior to the Liquidation Date) and, either itself acting
as exchange agent or through the appointment of a separate exchange agent,
shall establish such procedures as it shall deem appropriate to effect the
distribution of Junior Subordinated Debentures in exchange for the Outstanding
Trust Securities Certificates.


 


(c)           Except where Section 9.2(c) or
9.4(d) applies, after the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) the Clearing Agency for
the Global Capital Securities or its nominee, as the registered Holder of the
Global Capital Securities Certificates, shall receive a registered global
certificate or certificates representing the Junior Subordinated Debentures to
be delivered upon such distribution with respect to Capital Securities held by
the Clearing Agency or its nominee, and (iii) any Trust Securities
Certificates not held by the Clearing Agency for the Global Capital Securities
or its nominee as specified in clause (ii) above will be deemed to
represent Junior Subordinated Debentures having a principal amount equal to the
stated Liquidation Amount of the Trust Securities represented thereby and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until such certificates are
presented to the Securities Registrar for transfer or reissuance.


 


(d)           If, notwithstanding the other provisions
of this Section 9.4, whether because of an order for dissolution entered
by a court of competent jurisdiction or otherwise, distribution of the Junior
Subordinated Debentures is not practical, or if any Early Termination Event
specified in clause (c) of Section 9.2 occurs, the Issuer Trust
shall be dissolved, and the Trust Property shall be liquidated, by the Property
Trustee in such manner as the Property Trustee determines.  In such event, on the date of the dissolution
of the Issuer Trust, Holders will be entitled to receive out of the assets of
the Issuer Trust available for distribution to Holders, after paying or making
reasonable provision to pay all claims and obligations of the Issuer Trust in
accordance with Section 3808(e) of the Delaware Statutory Trust Act,
an amount equal to the aggregate of Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions


 


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thereon to the date of payment (such amount being the “Liquidation
Distribution”).  If, upon any such
dissolution, the Liquidation Distribution can be paid only in part because the
Issuer Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Issuer Trust on the Trust Securities shall be paid on a
pro rata basis (based upon Liquidation Amounts).  The Holder of the Common Securities will be
entitled to receive Liquidation Distributions upon any such dissolution, pro
rata (determined as aforesaid) with Holders of Capital Securities, except that,
if a Debenture Event of Default in Sections 5.1(1) or 5.1(2) of the
Indenture has occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities as provided in Section 4.3.


 


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


 


The Issuer Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to, any entity, except pursuant to this Section 9.5
or Section 9.4.  At the request of
the Holder of the Common Securities, and with the consent of the Holders of at
least a Majority in Liquidation Amount of the Capital Securities, but without
the consent of the Issuer Trustees, the Issuer Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any state; provided that (i) such
successor entity either (a) expressly assumes all of the obligations of
the Issuer Trust with respect to the Capital Securities or (b) substitutes
for the Capital Securities other securities having substantially the same terms
as the Capital Securities (the “Successor Capital Securities”) so long
as the Successor Capital Securities have the same priority as the Capital
Securities with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) a trustee of such successor entity possessing the same
powers and duties as the Property Trustee is appointed to hold the Junior
Subordinated Debentures, (iii) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not cause the Capital
Securities (including any Successor Capital Securities) to be downgraded by any
nationally recognized statistical rating organization, if such Capital
Securities have been rated by such nationally recognized statistical rating
organization, (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the holders of the Capital Securities (including any
Successor Capital Securities) in any material respect, (v) such successor
entity has a purpose substantially identical to that of the Issuer Trust, (vi) prior
to such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease, the Issuer Trust has received an Opinion of Counsel from a firm
experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights preferences and privileges of the holders of
the Capital Securities (including any Successor Capital Securities) in any
material respect, and (b) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease, neither the Issuer
Trust nor such successor entity will be required to register as an “investment
company” under the Investment Company Act and (vii) the Depositor or any
permitted transferee to whom it has transferred the Common Securities hereunder
owns all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Capital Securities or Successor


 


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Capital
Securities at least to the extent provided by the Guarantee.  Notwithstanding the foregoing, the Issuer
Trust shall not, except with the consent of Holders of 100% in Liquidation
Amount of the Capital Securities, consolidate, amalgamate, merge with or into,
or be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to, any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Issuer Trust or the successor entity to be taxable other than
as a grantor trust for United States Federal income tax purposes.


 


ARTICLE X


 


MISCELLANEOUS PROVISIONS


 


SECTION 10.1.  Limitation of Rights of Holders.


 


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


 


SECTION 10.2.  Amendment.


 


(a)           This Trust Agreement may be amended
from time to time by the Holder of the Common Securities, without the consent
of any Holder of the Capital Securities (i) to cure any ambiguity, correct
or supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Trust Agreement, provided,
however, such amendment shall not adversely affect in any material
respect the interests of any Holder or (ii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable other than as a grantor trust
for United States Federal income tax purposes at any time that any Trust
Securities are Outstanding or to ensure that the Issuer Trust will not be
required to register as an investment company under the Investment Company Act.


 


(b)           Except as provided in Section 10.2(c) hereof,
any provision of this Trust Agreement may be amended by the Holder of the
Common Securities with (i) the consent of Holders of at least a Majority
in Liquidation Amount of the Capital Securities and (ii) receipt by the
Issuer Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Issuer Trust’s being taxable as a grantor
trust for United States Federal income tax purposes or the Issuer Trust’s
exemption from status of an “investment company” under the Investment Company
Act.


 


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(c)           In addition to and notwithstanding
any other provision in this Trust Agreement, without the consent of each
affected Holder, this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust 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.


 


(d)           Notwithstanding any other provisions
of this Trust Agreement, no Issuer Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Issuer Trust to fail or
cease to qualify for the exemption from status as an “investment company” under
the Investment Company Act or be taxable other than as a grantor trust for
United States Federal income tax purposes.


 


(e)           Notwithstanding anything in this
Trust Agreement to the contrary, without the consent of the Depositor and the
Administrators, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Depositor or the Administrators.


 


(f)            In the event that any amendment to
this Trust Agreement is made, the Administrators or the Property Trustee shall
promptly provide to the Depositor a copy of such amendment.


 


(g)           No amendment to this Trust Agreement
may be adopted that adversely affects the Property Trustee’s or the Delaware
Trustee’s rights, duties or immunities under this Trust Agreement, except with
the consent of such Property Trustee or Delaware Trustee.  The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers’ Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement.


 


(h)           Any amendments to this Trust
Agreement made pursuant to Section 10.2(a) shall become effective
when notice of such amendment is given to the Holders of the Trust Securities.


 


SECTION 10.3.  Separability.


 


In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be determined to be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


SECTION 10.4.  Governing Law.


 


THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
HOLDERS, THE ISSUER TRUST, THE DEPOSITOR, THE ISSUER TRUSTEES AND THE
ADMINISTRATORS SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE AND ALL RIGHTS 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


 


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APPLICATION
OF THE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE; PROVIDED,
HOWEVER, THAT THERE SHALL NOT BE APPLICABLE TO THE HOLDERS, THE ISSUER TRUST,
THE DEPOSITOR, THE ISSUER TRUSTEES, THE ADMINISTRATORS OR THIS TRUST AGREEMENT
ANY PROVISION OF THE LAWS (STATUTORY OR COMMON) OF THE STATE OF DELAWARE
PERTAINING TO TRUSTS OTHER THAN THE DELAWARE STATUTORY TRUST ACT THAT RELATE TO
OR REGULATE, IN A MANNER INCONSISTENT WITH THE TERMS HEREOF (A) THE FILING
WITH ANY COURT OR GOVERNMENTAL BODY OR AGENCY OF TRUSTEE ACCOUNTS OR SCHEDULES
OF TRUSTEE FEES AND CHARGES, (B) AFFIRMATIVE REQUIREMENTS TO POST BONDS
FOR TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (C) THE NECESSITY
FOR OBTAINING COURT OR OTHER GOVERNMENTAL APPROVAL CONCERNING THE ACQUISITION,
HOLDING OR DISPOSITION OF REAL OR PERSONAL PROPERTY, (D) FEES OR OTHER
SUMS PAYABLE TO TRUSTEES, OFFICERS, AGENTS OR EMPLOYEES OF A TRUST, (E) THE
ALLOCATION OF RECEIPTS AND EXPENDITURES TO INCOME OR PRINCIPAL, (F) RESTRICTIONS
OR LIMITATIONS ON THE PERMISSIBLE NATURE, AMOUNT OR CONCENTRATION OF TRUST
INVESTMENTS OR REQUIREMENTS RELATING TO THE TITLING, STORAGE OR OTHER MANNER OF
HOLDING OR INVESTING TRUST ASSETS OR (G) THE ESTABLISHMENT OF FIDUCIARY OR
OTHER STANDARDS OF RESPONSIBILITY OR LIMITATIONS ON THE ACTS OR POWERS OF
TRUSTEES THAT ARE INCONSISTENT WITH THE LIMITATIONS OR LIABILITIES OR
AUTHORITIES AND POWERS OF THE ISSUER TRUSTEES OR THE ADMINISTRATOR AS SET FORTH
OR REFERENCED IN THIS TRUST AGREEMENT.  SECTION 3540
OF TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THE ISSUER TRUST.


 


SECTION 10.5.  Payments Due on Non-Business Day.


 


If the date fixed for any payment on any Trust Security shall be a day
that is not a Business Day, then such payment need not be made on such date but
may be made on the next succeeding day that is a Business Day except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case, with the same
force and effect as though made on the date fixed for such payment, and no Distributions
or interest shall accumulate on such unpaid amount for the period after such
date.


 


SECTION 10.6.  Successors.


 


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


 


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SECTION 10.7.  Headings.


 


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


 


SECTION 10.8.  Reports, Notices and Demands.


 


Any report, notice, demand or other communication that by any provision
of this Trust Agreement is required or permitted to be given or served to or
upon any Holder or the Depositor may be given or served in writing by deposit
thereof, first class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Holder of Capital Securities, to such Holder as such Holder’s name and address
may appear on the Securities Register; and (b) in the case of the Holder
of Common Securities or the Depositor, to GAINSCO, INC., 3333 Lee Parkway, Suite 1200,
Dallas, Texas 75219, Attention: Chief Financial Officer, facsimile no.: (972)
629-4401 or to such other address as may be specified in a written notice by
the Depositor to the Property Trustee. 
Such notice, demand or other communication to or upon a Holder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.  Such
notice, demand or other communication to or upon the Depositor shall be deemed
to have been sufficiently given or made only upon actual receipt of the writing
by the Depositor.


 


Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Issuer Trust, the Property Trustee, the Delaware Trustee, the
Administrators, or the Issuer Trust shall be given in writing addressed (until
another address is published by the Issuer Trust) as follows:  (a) with respect to the Property Trustee
to Wilmington Trust Company, 1100 North Market Street, Rodney Square North,
Wilmington, Delaware 19890-0001, Attention: Corporate Trust Administration; (b) with
respect to the Delaware Trustee to 1100 North Market Street, Rodney Square
North, Wilmington, Delaware 19890-0001, Attention: Corporate Trust
Administration; and (c) with respect to the Administrators, to them at the
address above for notices to the Depositor, marked “Attention:  GAINSCO Capital Trust I Administrators.”  Such notice, demand or other communication to
or upon the Issuer Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the
Issuer Trust, the Property Trustee, or such Administrator.


 


SECTION 10.9.  Agreement Not to Petition.


 


Each of the Issuer Trustees, the Administrators and the Depositor agree
for the benefit of the Holders that, until at least one year and one day after
the Issuer Trust has been terminated in accordance with Article IX, they
shall not file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, “Bankruptcy Laws”) or otherwise join in the commencement
of any proceeding against the Issuer Trust under any Bankruptcy Law.  In the event the Depositor takes action in
violation of this Section 10.9, the Property Trustee agrees, for the
benefit of Holders, that at the expense of the Depositor, it shall file an
answer with the bankruptcy court or other court or otherwise properly contest
the


 


60





















 


filing
of such petition by the Depositor against the Issuer Trust or the commencement
of such action and raise the defense that the Depositor has agreed in writing
not to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust
may assert.  If any Issuer Trustee or
Administrator takes action in violation of this Section 10.9, the
Depositor agrees, for the benefit of the Holders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by such Person against the
Depositor or the commencement of such action and raise the defense that such
Person has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as counsel for the Issuer
Trustee or the Issuer Trust may assert. The provisions of this Section 10.9
shall survive the termination of this Trust Agreement.


 


SECTION 10.10.  Trust Indenture Act; Conflict with Trust Indenture Act.


 


(a)           Trust Indenture Act;
Application.  (i) This
Trust Agreement is subject to the provisions of the Trust Indenture Act that
are required to be a part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions; (ii) if and to the extent that
any provision of this Trust Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control; (iii) for purposes of this Trust
Agreement, the Property Trustee, to the extent permitted by applicable law
and/or the rules and regulations of the Commission, shall be the only
Issuer Trustee which is a trustee for the purposes of the Trust Indenture Act;
and (iv) the application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Capital Securities and the Common
Securities as equity securities representing undivided beneficial interests in
the assets of the Issuer Trust.


 


(b)           Lists of Holders of Capital Securities.  (i) Each of the Depositor and the
Administrators on behalf of the Trust shall provide the Property Trustee with
such information as is required under Section 312(a) of the Trust
Indenture Act at the times and in the manner provided in Section 312(a) and
(ii) the Property Trustee shall comply with its obligations under Sections
310(b), 311 and 312(b) of the Trust Indenture Act.


 


(c)           Reports by the
Property Trustee.  Within 60
days after January 31 of each year commencing January 31, 2007, the
Property Trustee shall provide to the Holders of the Trust Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form, in the manner and at the times provided by Section 313 of the
Trust Indenture Act.  The Property
Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.


 


(d)           Periodic Reports to the
Property Trustee.  Each of the
Depositor and the Administrators on behalf of the Issuer Trust shall provide to
the Property Trustee, the Commission and the Holders of the Trust Securities,
as applicable, such documents, reports and information as may be required by Section 315(a)(1) –
(3) (if any) of the Trust Indenture Act and the compliance certificates
required by Section 314(a)(4) and (c) of the Trust Indenture Act
(provided that any certificate to be provided pursuant to Section 314(a)(4) of
the Trust Indenture Act shall be provided within 120 days of the end of each
fiscal year of the Issuer Trust.


 


61





















 


(e)           Evidence of Compliance
with Conditions Precedent.  Each of the Depositor and the Administrators
on behalf of the Issuer Trust shall provide to the Property Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Trust Agreement which relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act.  Any certificate
or opinion required to be given pursuant to Section 314(c) shall
comply with Section 314(e) of the Trust Indenture Act.


 


(f)            Disclosure Information.  The disclosure of information as to the names
and addresses of the Holders of Trust Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section 312
of the Trust Indenture Act, nor shall the Property Trustee be held accountable
by reason of mailing any material pursuant to a request made under Section 312(b) of
the Trust Indenture Act.


 


SECTION 10.11.  Acceptance of Terms of Trust Agreement, Guarantee and Indenture.


 


THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN
BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE
THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF
THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE
ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS
TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER
TRUST AND SUCH HOLDER AND SUCH OTHERS.


 


* * * *


 


This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.  The exchange of copies of this Trust
Agreement and of signature pages by facsimile or electronic transmission
shall constitute effective execution and delivery of this Trust Agreement as to
the parties hereto, and may be used in lieu of the original signature pages to
this Trust Agreement for all purposes.


 


[Signatures on Next Page]


 


62





















 


IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed, all as of the day and year first above written.


 


	
   

  	
  GAINSCO,
  INC.,

  
	
   

  	
  as Depositor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Glenn W.
  Anderson

  	
   

  
	
   

  	
  Name: Glenn W.
  Anderson

  
	
   

  	
  Title: President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as Property
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janel R.
  Havrilla

  	
   

  
	
   

  	
  Name: Janel R.
  Havrilla

  
	
   

  	
  Title: Senior
  Financial Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  individually and
  as Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Janel R.
  Havrilla

  	
   

  
	
   

  	
  Name: Janel R.
  Havrilla

  
	
   

  	
  Title: Senior
  Financial Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/ Glenn W. Anderson

  	
   

  
	
   

  	
  Name: Glenn W.
  Anderson

  
	
   

  	
  Title:
  Administrator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/ Daniel J. Coots

  	
   

  
	
   

  	
  Name: Daniel J.
  Coots

  
	
   

  	
  Title:
  Administrator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   /s/ Richard M. Buxton

  	
   

  
	
   

  	
  Name: Richard M.
  Buxton

  
	
   

  	
  Title:
  Administrator

  
									



 


63





















 


EXHIBIT A


 


CERTIFICATE OF TRUST


OF


GAINSCO CAPITAL TRUST I


 


A-1





















 


EXHIBIT B


 


RESTRICTED SECURITIES CERTIFICATE


 


(For transfers pursuant to § 5.5(b)

of the Trust Agreement)


 


Wilmington Trust Company,


as Securities Registrar


1100 North Market Street


Rodney Square North


Wilmington, Delaware  19890-0001


Attention:       Corporate Trust Administration


 


Re:          Floating
Rate Capital Securities (“Capital Securities”)

of Gainsco Capital Trust I (the “Trust”)


 


Reference
is made to the Amended and Restated Trust Agreement, dated as of January 13,
2006 (the “Trust Agreement”), among Gainsco, Inc., as Depositor,
Wilmington Trust Company, as Property Trustee and as Delaware Trustee, the
Administrators named therein, and the Holders (as defined therein) from time to
time.  Terms used herein and defined in
the Trust Agreement or in Regulation D, Rule 144A or Rule 144 under
the U.S. Securities Act of 1933 (the “Securities Act”) are used herein
as so defined.


 


This
certificate relates to $                       
aggregate Liquidation Amount of Capital Securities, which are evidenced by the
following certificate(s) (the “Specified Securities”):


 


CUSIP
No(s).                                             


 


CERTIFICATE
No(s).                                         


 


CURRENTLY
IN BOOK-ENTRY FORM:          Yes         
No (check one)


 


The person in whose name
this certificate is executed below (the “Undersigned”) hereby certifies
that either (i) it is the sole beneficial owner of the Specified
Securities or (ii) it is acting on behalf of all the beneficial owners of
the Specified Securities and is duly authorized by them to do so.  Such beneficial owner or owners are referred
to herein collectively as the “Owner.” 
If the Specified Securities are represented by a Global Capital
Securities Certificate, they are held through the Clearing Agency or a Clearing
Agency Participant in the name of the Undersigned, as or on behalf of the
Owner.  If the Specified Securities are
not represented by a Global Capital Securities Certificate, they are registered
in the name of the Undersigned, as or on behalf of the Owner.


 


B-1





















 


The
Owner has requested that the Specified Securities be transferred to a person
(the “Transferee”) who will take delivery in the form of a Restricted
Capital Security.  In connection with
such transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities Act,
it is being effected in accordance with Rule 144A, Rule 904 or Rule 144
under the Securities Act or other exemption from registration under the
Securities Act, and all applicable securities laws of the states of the United
States and other jurisdictions. 
Accordingly, the Owner hereby further certifies as follows:


 


1.             Rule 144A
Transfers.  If the
transfer is being effected in accordance with Rule 144A:


 


(A)          the
Specified Securities are being transferred to a person that the Owner and any
person acting on its behalf reasonably believe is a “qualified institutional
buyer” within the meaning of Rule 144A, acquiring for its own account or
for the account of a qualified institutional buyer; and


 


(B)           the
Owner and any person acting on its behalf have taken reasonable steps to ensure
that the Transferee is aware that the Owner may be relying on Rule 144A in
connection with the transfer.


 


2.             Rule 904
Transfers.  If the
transfer is being effected in accordance with Rule 904:


 


(A)          the
Owner is not a distributor of the Capital Securities, an affiliate of the
Depositor or the Trust or any such distributor or a person acting on behalf of
any of the foregoing;


 


(B)           the
offer of the Specified Securities was not made to a person in the United
States;


 


(C)           either:


 


(i)            at
the time the buy order was originated, the Transferee was outside the United
States or the Owner and any person acting on its behalf reasonably believed
that the Transferee was outside the United States, or


 


(ii)           the
transaction is being executed in, on or through the facilities of the Eurobond market,
as regulated by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner nor any person
acting on its behalf knows that the transaction has been prearranged with a
buyer in the United States;


 


B-2





















 


(D)          no
directed selling efforts within the meaning of Rule 902 of Regulation S
have been made in the United States by or on behalf of the Owner or any
affiliate thereof; and


 


(E)           the
transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.


 


3.             Rule 144
Transfers.  If the transfer is being
effected pursuant to Rule 144:


 


(A)          the
transfer is occurring after a holding period of at least one year (computed in
accordance with paragraph (d) of Rule 144 or such shorter time as may
be provided therein) has elapsed since the date the Specified Securities were
acquired from the Depositor or the Trust or from an affiliate (as such term is
defined in Rule 144) of the Depositor or the Trust, with the full amount
of the purchase price paid at the date of purchase, whichever is later, and is
being effected in accordance with the applicable amount, manner of sale and
notice requirements of paragraphs (c), (e), (f) and (h) of Rule 144;
or


 


(B)           the
transfer is occurring after a holding period of at least two years (or such
shorter time as may be provided in Rule 144(k) has elapsed since the date
the Specified Securities were acquired from the Depositor or the Trust or from
an affiliate (as such term is defined in Rule 144) of the Depositor or the
Trust, with the full amount of the purchase price paid at the date of purchase,
whichever is later, and the Owner is not, and during the preceding three months
has not been, an affiliate of the Depositor or the Trust.


 


4.             Other
Transfers.  If the Owner seeks to
make a transfer in reliance on any other exemption under the Securities Act, it
shall attach hereto a letter stating the exemption relied upon and the facts
under which such exemption is available for the requested transfer, and shall
attach an opinion of counsel satisfactory to the Depositor stating that such
exemption is available and is being properly used.


 


This
certificate and the statements contained herein are made for your benefit and
the benefit of the Depositor, the Trust and the Holders.


 


 


	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  (Print the name
  of the Undersigned, as such term is defined in the second paragraph of this
  certificate.)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  (If the
  Undersigned is a corporation, partnership, fiduciary or entity, the correct
  name of the entity, and the name and title of the person signing on behalf of
  the Undersigned must be stated.)

  



 


B-3





















 


EXHIBIT C


 


FORM OF COMMON SECURITIES
CERTIFICATE


 


C-1





















 


EXHIBIT D


 


FORM OF CAPITAL SECURITIES
CERTIFICATE


 


D-1





















 


EXHIBIT E


 


FORM OF PLACEMENT AGREEMENT


 


E-1