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Exhibit 4.15    
  




AMENDED AND RESTATED

DECLARATION OF TRUST

OF

PRUDENTIAL FINANCIAL CAPITAL TRUST II  


 Dated as of                        








  



 
 

TABLE OF CONTENTS    
  



	 
	 	 
	 	Page

	ARTICLE I INTERPRETATIONS AND DEFINITIONS	 	1
	 	

SECTION 1.1	
 	

INTERPRETATIONS	
 	

1
	 	SECTION 1.2	 	DEFINITIONS	 	2
	

ARTICLE II TRUST INDENTURE ACT	
 	

6
	 	

SECTION 2.1	
 	

TRUST INDENTURE ACT; APPLICATION	
 	

6
	 	SECTION 2.2	 	LISTS OF HOLDERS OF SECURITIES	 	7
	 	SECTION 2.3	 	REPORTS BY THE PROPERTY TRUSTEE	 	7
	 	SECTION 2.4	 	PERIODIC REPORTS TO PROPERTY TRUSTEE	 	7
	 	SECTION 2.5	 	EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT	 	7
	 	SECTION 2.6	 	EVENTS OF DEFAULT; WAIVER	 	7
	 	SECTION 2.7	 	EVENTS OF DEFAULT; NOTICE	 	9
	

ARTICLE III ORGANIZATION	
 	

9
	 	

SECTION 3.1	
 	

NAME	
 	

9
	 	SECTION 3.2	 	OFFICE	 	9
	 	SECTION 3.3	 	PURPOSE; GRANTOR TRUST	 	10
	 	SECTION 3.4	 	AUTHORITY	 	10
	 	SECTION 3.5	 	TITLE TO PROPERTY OF THE TRUST	 	10
	 	SECTION 3.6	 	POWERS AND DUTIES OF THE ADMINISTRATIVE TRUSTEES	 	10
	 	SECTION 3.7	 	PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES	 	13
	 	SECTION 3.8	 	POWERS AND DUTIES OF THE PROPERTY TRUSTEE	 	15
	 	SECTION 3.9	 	CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE	 	16
	 	SECTION 3.10	 	CERTAIN RIGHTS OF THE PROPERTY TRUSTEE	 	16
	 	SECTION 3.11	 	DELAWARE TRUSTEE	 	19
	 	SECTION 3.12	 	EXECUTION OF DOCUMENTS	 	19
	 	SECTION 3.13	 	NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES	 	19
	 	SECTION 3.14	 	DURATION OF TRUST	 	19
	 	SECTION 3.15	 	MERGERS	 	20
	 	SECTION 3.16	 	PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM	 	21
	

ARTICLE IV SPONSOR	
 	

22
	 	

SECTION 4.1	
 	

SPONSOR'S PURCHASE OF COMMON SECURITIES	
 	

22
	 	SECTION 4.2	 	RIGHTS AND RESPONSIBILITIES OF THE SPONSOR	 	22
	 	SECTION 4.3	 	RIGHT TO PROCEED	 	22
	 	SECTION 4.4	 	EXPENSES	 	22
	

ARTICLE V TRUSTEES	
 	

23
	 	

SECTION 5.1	
 	

NUMBER OF TRUSTEES	
 	

23
	 	SECTION 5.2	 	DELAWARE TRUSTEE	 	23
	 	SECTION 5.3	 	PROPERTY TRUSTEE; ELIGIBILITY	 	24
	 	SECTION 5.4	 	CERTAIN QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES AND DELAWARE TRUSTEE GENERALLY	 	25
	 	SECTION 5.5	 	ADMINISTRATIVE TRUSTEES	 	25
	 	SECTION 5.6	 	APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES	 	25



i





 

	 	SECTION 5.7	 	VACANCIES AMONG TRUSTEES	 	26
	 	SECTION 5.8	 	EFFECT OF VACANCIES	 	26
	 	SECTION 5.9	 	MEETINGS	 	26
	 	SECTION 5.10	 	DELEGATION OF POWER	 	27
	 	SECTION 5.11	 	MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS	 	27
	

ARTICLE VI DISTRIBUTIONS	
 	

27
	 	

SECTION 6.1	
 	

DISTRIBUTIONS	
 	

27
	

ARTICLE VII ISSUANCE OF SECURITIES	
 	

28
	 	

SECTION 7.1	
 	

GENERAL PROVISIONS REGARDING SECURITIES	
 	

28
	 	SECTION 7.2	 	PAYING AGENT; REGISTRAR	 	29
	 	SECTION 7.3	 	PAYING AGENT TO HOLD MONEY IN TRUST	 	29
	

ARTICLE VIII TERMINATION OF TRUST	
 	

29
	 	

SECTION 8.1	
 	

DISSOLUTION OF TRUST	
 	

29
	

ARTICLE IX TRANSFER OF INTERESTS	
 	

30
	 	

SECTION 9.1	
 	

TRANSFER OF SECURITIES	
 	

30
	 	SECTION 9.2	 	TRANSFER OF CERTIFICATES	 	30
	 	SECTION 9.3	 	DEEMED SECURITY HOLDERS	 	31
	 	SECTION 9.4	 	BOOK-ENTRY INTERESTS	 	31
	 	SECTION 9.5	 	NOTICES TO CLEARING AGENCY	 	32
	 	SECTION 9.6	 	APPOINTMENT OF SUCCESSOR CLEARING AGENCY	 	32
	 	SECTION 9.7	 	DEFINITIVE PREFERRED SECURITY CERTIFICATES	 	32
	 	SECTION 9.8	 	MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES	 	33
	 	SECTION 9.9	 	CANCELLATION	 	33
	

ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS	
 	

33
	 	

SECTION 10.1	
 	

LIABILITY	
 	

33
	 	SECTION 10.2	 	EXCULPATION	 	33
	 	SECTION 10.3	 	FIDUCIARY DUTY	 	34
	 	SECTION 10.4	 	INDEMNIFICATION	 	35
	 	SECTION 10.5	 	OUTSIDE BUSINESSES	 	37
	

ARTICLE XI ACCOUNTING	
 	

38
	 	

SECTION 11.1	
 	

FISCAL YEAR	
 	

38
	 	SECTION 11.2	 	CERTAIN ACCOUNTING MATTERS	 	38
	 	SECTION 11.3	 	BANKING	 	38
	 	SECTION 11.4	 	WITHHOLDING	 	38
	

ARTICLE XII AMENDMENTS AND MEETINGS	
 	

39
	 	

SECTION 12.1	
 	

AMENDMENTS	
 	

39
	 	SECTION 12.2	 	MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT	 	40



ii





 

	

ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE	
 	

41
	 	

SECTION 13.1	
 	

REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE	
 	

41
	 	SECTION 13.2	 	REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE	 	42
	

ARTICLE XIV MISCELLANEOUS	
 	

43
	 	

SECTION 14.1	
 	

NOTICES	
 	

43
	 	SECTION 14.2	 	GOVERNING LAW	 	44
	 	SECTION 14.3	 	INTENTION OF THE PARTIES	 	44
	 	SECTION 14.4	 	HEADINGS	 	44
	 	SECTION 14.5	 	SUCCESSORS AND ASSIGNS	 	44
	 	SECTION 14.6	 	PARTIAL ENFORCEABILITY	 	44
	 	SECTION 14.7	 	COUNTERPARTS	 	44
	 	SECTION 14.8	 	CUSIP NUMBERS	 	45
	

ANNEX I	
 	

TERMS OF [ • ]% TRUST PREFERRED SECURITIES AND OF [ • ]% TRUST COMMON SECURITIES	
 	

 
	EXHIBIT A-1	 	FORM OF PREFERRED SECURITY CERTIFICATE	 	 
	EXHIBIT A-2	 	FORM OF COMMON SECURITY CERTIFICATE	 	 
	EXHIBIT B	 	SPECIMEN OF DEBENTURE	 	 




iii







 
 

AMENDED AND RESTATED DECLARATION OF TRUST
  OF
  PRUDENTIAL FINANCIAL CAPITAL TRUST II    
  


Dated
as of    •    


        AMENDED
AND RESTATED DECLARATION OF TRUST (this "Declaration") dated and effective as of    •    , by the Trustees (as defined herein), the Sponsor (as
defined herein) and by the Holders (as defined herein), from time to time, of the securities representing undivided beneficial interests in the assets of the Trust (as defined herein) to be issued
pursuant to this Declaration; 


        WHEREAS,
certain of the Trustees and the Sponsor established Prudential Financial Capital Trust II (the "Trust"), a trust under the Statutory Trust Act (as defined herein) pursuant to a
Declaration of Trust dated as of April    , 2003 (the "Original Declaration"), and a Certificate of Trust filed with the Secretary of State of the State of Delaware on April 2, 2003,
for the sole purpose of issuing and selling certain securities representing undivided beneficial interests in the assets of the Trust and investing the proceeds thereof in certain Debentures of the
Debenture Issuer (each, as defined herein); 


        WHEREAS,
all of the parties hereto, by this Declaration, amend and restate each and every term and provision of the Original Declaration; and 


        NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust as a statutory trust under the Statutory Trust Act and that this Declaration constitute the governing
instrument of such statutory trust, the Trustees declare that all assets contributed to the Trust will be held in trust for the benefit of the Trust and Holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Declaration. 


 
 

ARTICLE I
  INTERPRETATIONS AND DEFINITIONS    
  


SECTION
1.1    INTERPRETATIONS.    


Unless
the context otherwise requires: 



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



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


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


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



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


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




SECTION
1.2    DEFINITIONS.    


        "Administrative
Trustee" has the meaning set forth in Section 5.1. 


        "Affiliate"
of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person.
When used with respect to any Person, "control" means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether through the ownership
of voting securities, by 





 




contract or otherwise; and the terms "controlling" and "controlled" and "under common control with" have meanings correlative to the foregoing. 


        "Agent"
means any Paying Agent or Registrar. 


        "Authorized
Officer" means (i) with respect to the Sponsor, the Chief Executive Officer, the Chief Financial Officer, the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Sponsor and (ii) with respect to any other Person, any Person that is authorized to bind such Person. 



        "Book-Entry
Interest" means a beneficial interest in a Global Certificate, ownership and transfers of which shall be maintained and made through book-entries by a
Clearing Agency as described in Section 9.4. 


        "Business
Day" means any day other than Saturday, Sunday or a day on which banking institutions and trust companies in The City of New York are authorized or required by law, regulation
or executive order to close. 


        "Certificate"
means a Common Security Certificate or a Preferred Security Certificate. 



        "Clearing
Agency" means an organization registered as a "Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as depositary for the Preferred Securities and
in whose name or in the name of a nominee of that organization shall be registered a Global Certificate and which shall undertake to effect book-entry transfers and pledges of the
Preferred Securities. 


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



        "Closing
Date" has the meaning set forth in the Underwriting Agreement. 


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


        "Commission"
means the Securities and Exchange Commission. 


        "Common
Securities Guarantee" means the Guarantee Agreement dated as of    •    of the Sponsor in respect of the Common Securities. 


        "Common
Security" has the meaning set forth in Section 7.1(a). 


        "Common
Security Certificate" means a definitive certificate in fully registered form representing a Common Security substantially in the form of Exhibit A-2. 


        "Corporate
Trust Office" means the office of JPMorgan Chase Bank, the Property Trustee, at which the corporate trust business of the Property Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this Declaration is located at 450 West 33rd Street, 15th Floor, New York, New York 10001, Attention: Institutional Trust Services. 



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


        "Creditor"
has the meaning set forth in Section 4.4. 


        "Debenture
Issuer" means Prudential Financial, Inc., a New Jersey corporation, in its capacity as issuer of the Debentures under the Indenture. 



        "Debenture
Trustee" means JPMorgan Chase Bank, a New York banking corporation, as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such
successor trustee. 


2





 



        "Debentures"
means the series of    •    %  [subordinated] debentures to be issued by the Debenture Issuer under the
Indenture, a specimen certificate for such series of Debentures being Exhibit B. 


        "Declaration"
has the meaning specified in the introductory paragraph. 


        "Definitive
Preferred Security Certificates" has the meaning set forth in Section 9.4. 


        "Delaware
Trustee" has the meaning set forth in Section 5.2. 


        "Depositary"
means, initially, DTC, until another Clearing Agency becomes its successor. 



        "Direct
Action" has the meaning set forth in Section 3.8(e). 


        "Direction"
by a Person means a written direction signed: 



        (a)  if
the Person is a natural person, by that Person; or 


        (b)  in
any other case, in the name of such Person by one or more Authorized Officers of that Person. 





        "Distribution"
means a distribution payable to Holders of Securities in accordance with Section 6.1. 


        "DTC"
means The Depository Trust Company, the initial Clearing Agency. 


        "Event
of Default" in respect of the Securities means an Event of Default (as defined in the Indenture) has occurred and is continuing in respect of the Debentures. 


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



        "Fiduciary
Indemnified Person" has the meaning set forth in Section 10.4(b). 


        "Fiscal
Year" has the meaning specified in Section 11.1. 


        "Global
Certificate" has the meaning set forth in Section 9.4. 


        "Holder"
or "holder" means a Person in whose name a Certificate representing a Security is registered, such Person being a beneficial owner within the meaning of the Statutory Trust Act. 


        "Indemnified
Person" means a Sponsor Indemnified Person or a Fiduciary Indemnified Person. 



        "Indenture"
means the Indenture dated as of    •    , among the Debenture Issuer and the Debenture Trustee, and any indenture supplemental thereto
pursuant to which the Debentures are to be issued. 


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


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



        "Legal
Action" has the meaning set forth in Section 3.6(a)(vii). 


        "Liquidation
Distribution" has the meaning set forth in Annex I. 


        "List
of Holders" has the meaning set forth in Section 2.2(a). 


        "Majority
in liquidation amount of the Securities" means, except as provided in the terms and conditions of the Preferred Securities set forth in Annex I hereto or by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities
voting separately as a class, who are the record owners of more than 50% of the aggregate liquidation amount 


3





 




(including the stated amount that would be paid on liquidation or otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class. 


        "Officer's
Certificate" means, with respect to any Person, a certificate signed by an Authorized Officer of such Person. Any Officer's Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall include: 



        (a)  a
statement that the officer signing the Officer's Certificate has read the covenant or condition and the definitions relating thereto; 


        (b)  a
brief statement of the nature and scope of the examination or investigation undertaken by the officer in rendering the Officer's Certificate; 



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


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




        "Paying
Agent" has the meaning set forth in Section 7.2. 


        "Payment
Amount" has the meaning set forth in Section 6.1. 


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


        "Preferred
Securities Guarantee" means the Guarantee Agreement dated as of    •    of the Sponsor in respect of the Preferred Securities. 


        "Preferred
Security" has the meaning set forth in Section 7.1(a). 


        "Preferred
Security Beneficial Owner" means, with respect to a Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry Interest, as reflected
on the books of the Clearing Agency, or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case
in accordance with the rules of such Clearing Agency). 


        "Preferred
Security Certificate" means a certificate representing a Preferred Security substantially in the form of Exhibit A-1. 



        "Property
Trustee" means the Trustee meeting the eligibility requirements set forth in Section 5.3, which initially shall be JPMorgan Chase Bank. 


        "Property
Trustee Account" has the meaning set forth in Section 3.8(c). 


        "Prudential"
means Prudential Financial, Inc., a New Jersey corporation. 


        "Quorum"
means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them. 


        "Registrar"
has the meaning set forth in Section 7.2. 


        "Related
Party" means, with respect to the Sponsor, any direct or indirect wholly owned subsidiary of the Sponsor or any other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor. 


4





 



        "Responsible
Officer" means, with respect to the Property Trustee, any officer within the Corporate Trust Office of the Property Trustee (or any successor of the Property Trustee),
including, but not limited to, any vice president, any assistant vice president, any assistant secretary, any assistant treasurer or other officer of the Corporate Trust Office of the Property Trustee
assigned by the Property Trustee
to administer its corporate trust matters and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject, in each case who shall have direct responsibility for the administration of this Declaration. 


        "Securities"
means the Common Securities and the Preferred Securities. 


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


        "Securities
Guarantees" means the Common Securities Guarantee and the Preferred Securities Guarantee. 


        "Sponsor"
means Prudential Financial, Inc., a New Jersey corporation, or any successor entity in a merger or consolidation, in its capacity as sponsor of the Trust. 


        "Sponsor
Indemnified Person" means (a) any Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders,
members, partners, employees, representatives or agents of any Administrative Trustee or any Affiliate of any Administrative Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates. 


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


        "Successor"
has the meaning set forth in the Indenture. 


        "Successor
Common Securities" has the meaning specified in Section 3.15(b)(i)(B). 



        "Successor
Delaware Trustee" has the meaning set forth in Section 5.6(b)(ii). 


        "Successor
Entity" has the meaning set forth in Section 3.15(b)(i). 


        "Successor
Property Trustee" has the meaning set forth in Section 3.8(f)(ii). 


        "Successor
Securities" has the meaning specified in Section 3.15(b)(i)(B). 


        "Super
Majority" has the meaning set forth in Section 2.6(a)(ii). 



        "10%
in liquidation amount of the Securities" means, except as provided in the terms of the Preferred Securities set forth in Annex I hereto or by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may require, Holders of outstanding Preferred Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of 10% or more of the aggregate liquidation amount of all outstanding Securities of the relevant class. 


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


        "Trust"
has the meaning specified in the first Recital. 


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


        "Trustee"
or "Trustees" means each Person who has signed this Declaration as a trustee, so long as such Person shall continue in office in accordance with the terms hereof, and all other
Persons who 


5





 




may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or
Persons solely in their capacity as trustees hereunder. 


        "Underwriting
Agreement" means the Underwriting Agreement for the offering and sale of the Preferred Securities. 


 
 

ARTICLE II
  TRUST INDENTURE ACT    
  


SECTION
2.1    TRUST INDENTURE ACT; APPLICATION.    



        (a)  This
Declaration is subject to the provisions of the Trust Indenture Act that are required to be part of this Declaration and shall, to the extent applicable, be
governed by such provisions. 


        (b)  The
Property Trustee shall be the only Trustee which is a Trustee for the purposes of the Trust Indenture Act. 


        (c)  If
and to the extent that any provision of this Declaration limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control. 


6







  





        (d)  Any application of the Trust Indenture Act to this Declaration shall not affect the nature of the Securities as equity securities representing undivided beneficial
interests in the assets of the Trust. 


SECTION
2.2    LISTS OF HOLDERS OF SECURITIES.    



        (a)  Each
of the Sponsor and the Administrative Trustees, on behalf of the Trust, shall provide the Property Trustee (i) within 15 days after each record date
for payment of Distributions, a list, in such form as the Property Trustee may reasonably require, of the names and addresses of the Holders of the Securities ("List of Holders") as of such record
date, provided that neither the Sponsor nor the Administrative Trustees, on behalf of the Trust, shall be obligated to provide such List of Holders at
any time the List of Holders does not differ from the most recent List of Holders given to the Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust, and
(ii) at any other time, within 30 days of receipt by the Trust of a written request by the Property Trustee for a List of Holders as of a date no more than 15 days before such
List of Holders is given to the Property Trustee, excluding from any such list names and addresses provided by the Property Trustee in its capacity as Registrar. The Property Trustee shall preserve,
in as current a form as is reasonably practicable, all information contained in the Lists of Holders given to it or which it receives in the capacity as Registrar (if acting in such capacity),  provided
that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders. 


        (b)  The
Property Trustee shall comply with its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act. 


SECTION
2.3    REPORTS BY THE PROPERTY TRUSTEE.    



        Within
60 days after May 15 of each year, commencing    •    , the Property Trustee shall provide to the Holders of the Preferred
Securities such reports as are required by Section 313(a) of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the other requirements of Section 313(d) of the Trust Indenture Act. The Sponsor shall promptly notify the Property Trustee if and when the Preferred
Securities are listed on any stock exchange. 


SECTION
2.4    PERIODIC REPORTS TO PROPERTY TRUSTEE.    



        Each
of the Sponsor and the Administrative Trustees, on behalf of the Trust, shall provide to the Property Trustee such documents, reports and information as required by
Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a)(4) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314(a)(4) of the Trust Indenture Act, such compliance certificate to be delivered annually on or before 120 days after the end of each fiscal year of the Sponsor. 


SECTION
2.5    EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.    



        Each
of the Sponsor and the Administrative Trustees, on behalf of the Trust, shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Declaration 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) may be given in the form of an Officer's Certificate. 


SECTION
2.6    EVENTS OF DEFAULT; WAIVER.    



        (a)  The
Holders of a Majority in liquidation amount of Preferred Securities may, by vote, on behalf of the Holders of all of the Preferred Securities, waive any past Event
of Default in respect of 


7





 




the Preferred Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: 



        (i)    is
not waivable under the Indenture, the Event of Default under this Declaration shall also not be waivable; or 



        (ii)  requires
the consent or vote of greater than a majority in principal amount of the holders of the Debentures (a "Super Majority") to be waived under the Indenture, the
Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. 




        The
foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded
from this Declaration and the Preferred Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent thereon. Any waiver by the Holders of the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Event of Default with respect to the Common Securities for all purposes of this Declaration
without any further act, vote, or consent of the Holders of the Common Securities. 



        (b)  The
Holders of a Majority in liquidation amount of the Common Securities may, by vote, on behalf of the Holders of all of the Common Securities, waive any past Event of
Default with respect to the Common Securities and its consequences, provided that, if the underlying Event of Default under the Indenture: 



        (i)    is
not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Event of Default under this Declaration as provided
below in this Section 2.6(b) and Section 2.6(c), the Event of Default under this Declaration shall also not be waivable; or 



        (ii)  requires
the consent or vote of a Super Majority to be waived, except where the Holders of the Common Securities are deemed to have waived such Event of Default under
this Declaration as provided below in this Section 2.6(b), the Event of Default under this Declaration may only be waived by the vote of the Holders of at least the proportion in liquidation
amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding; 




provided further, each Holder of Common Securities will be deemed to have waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect to the Preferred Securities have been cured, waived or otherwise eliminated, and until such Events of Default have been
so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with the terms of the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Declaration and the Securities, as permitted
by the Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon such waiver, any such default shall cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such waiver shall extend to any subsequent or other 


8





 


default or Event of Default with respect to the Common Securities or impair any right consequent thereon. 


        (c)  A
waiver of an Event of Default under the Indenture by the Property Trustee at the direction of the Holders of the Preferred Securities constitutes a waiver of the
corresponding Event of Default with respect to the Preferred Securities under this Declaration. Any waiver of an Event of Default under the Indenture by the Property Trustee at the direction of the
Holders of the Preferred Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of the corresponding Event of Default under this Declaration with respect to the
Common Securities for all purposes of this Declaration without further act, vote or consent of the Holders of the Common Securities. The foregoing provisions of this Section 2.6(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Declaration and the Securities, as
permitted by the Trust Indenture Act. 


SECTION
2.7    EVENTS OF DEFAULT; NOTICE.    



        (a)  The
Property Trustee shall, within 90 days after a Responsible Officer of the Property Trustee obtains actual knowledge of the occurrence of an Event of Default,
actually known to such Responsible Officer of the Property Trustee, transmit by mail, first class postage prepaid, to the Holders of the Securities, notices of all such defaults with respect to the
Securities, unless such defaults have been cured before the giving of such notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby defined to be an Event of Default as
defined in the Indenture, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein);  provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures, the Property Trustee shall
be protected in withholding such notice if and so long as a Responsible Officer of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders
of the Securities. 


        (b)  The
Property Trustee shall not be deemed to have knowledge of any default except: 



        (i)    a
default under Sections 501(1) and 501(2) of the Indenture provided that the Property Trustee is also the Paying Agent
under the Indenture; or 


        (ii)  any
default as to which the Property Trustee shall have received written notice which references the Securities and this Declaration at its Corporate Trust Office or of
which a Responsible Officer of the Property Trustee charged with the administration of this Declaration shall have actual knowledge. 




        The
Sponsor and the Administrative Trustee shall file annually with the Property Trustee a certification as to whether or not they are in compliance with all the conditions applicable to
them under this Declaration. 


 
 

ARTICLE III
  ORGANIZATION    
  


SECTION
3.1    NAME.    


        The
Trust is named "Prudential Financial Capital Trust II," as such name may be modified from time to time by the Administrative Trustees following written notice to the Delaware
Trustee, the Property Trustee and Holders of the Securities. The Trust's activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrative Trustees. 


SECTION
3.2    OFFICE.    


        The
address of the principal office of the Trust, for purposes of the Delaware Statutory Trust Act, is c/o Chase Manhattan Bank USA, National Association, 500 Stanton Christiana Road,
Building 4, 3rd 


9





 




Floor, Newark, Delaware 19713, Attn: Institutional Trust Services, Fax:                        . On ten Business Days' written
notice to the Property Trustee and Holders of the Securities, the Administrative
Trustees may designate another principal office. 


SECTION
3.3    PURPOSE; grantor trust.    


        (a)  The
exclusive purposes and functions of the Trust are: 



        (i)    to
issue and sell the Securities and use the gross proceeds from such sale to acquire the Debentures; 


        (ii)  to
enter into and perform its obligations under the documents relating to the Securities to which the Trust is a party, including the Underwriting Agreement, a
remarketing agreement, a debenture subscription agreement and a common securities subscription agreement; and 



        (iii)  except
as otherwise set forth herein, to engage in only those other activities necessary, appropriate, convenient or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust. 




        (b)  It
is the intent of the parties to this Declaration for the Trust to be classified as a grantor trust for United States federal income tax purposes under Subpart E of
Subchapter J of the Code, pursuant to which the owners of the Preferred Securities and the Common Securities will be the owners of the Trust for United States federal income tax purposes, and such
owners will include directly in their gross income the income, gain, deduction or loss of the Trust as if the Trust did not exist. By the acceptance of this Declaration, the Trustees, the Sponsor, the
Preferred Security Beneficial Owners and the holders of the Common Securities agree that they will not take any position for United States federal income tax purposes which is contrary to the
classification of the Trust as a grantor trust. 


SECTION
3.4    AUTHORITY.    


        Subject
to the limitations provided in this Declaration and to the specific duties of the Property Trustee, the Administrative Trustees shall have exclusive and complete authority to
carry out the purposes of the Trust. An action taken by the Administrative Trustees on behalf of the Trust in accordance with their powers shall constitute the act of and serve to bind the Trust and
an action taken by the Property Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust. In dealing with the Trustees acting on behalf of
the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration. 


SECTION
3.5    TITLE TO PROPERTY OF THE TRUST.    


        Except
as provided in Section 3.8 with respect to the Debentures and the Property Trustee Account or as otherwise provided in this Declaration, legal title to all assets of the
Trust shall be vested in the Trust. A Holder shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial interest in the assets of the Trust. 


SECTION
3.6    POWERS AND DUTIES OF THE ADMINISTRATIVE TRUSTEES.    



        (a)  The
Administrative Trustees shall have the exclusive power, duty and authority and are hereby authorized and directed to cause the Trust to engage in the following
activities: 



        (i)    to
execute, deliver, issue and sell the Preferred Securities and the Common Securities in accordance with this Declaration;  provided, however, that the Trust
may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided  



10





 

 further, that there shall be no interests in the Trust other than the Securities, and the issuance of Securities shall be limited to a simultaneous issuance of both Preferred
Securities and Common Securities on each Closing Date; 


        (ii)  in
connection with the issue and sale of the Preferred Securities to: 



        (A)  execute
and file with the Commission the registration statement and the prospectus relating to the registration statement on Form S-3 or on another
appropriate form prepared by the Sponsor (including, if appropriate, a registration statement under Rule 462(b) of the Securities Act) and any pre-effective or
post-effective amendments or supplements thereto, relating to the registration under the Securities Act of the Preferred Securities and to take any other action relating to the
registration and sale of the Preferred Securities under federal and state securities laws; 



        (B)  execute
and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has determined to qualify or register such Preferred Securities for sale; 


        (C)  execute
and file an application, prepared by the Sponsor, to the New York Stock Exchange, Inc. or any other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any Preferred Securities; 



        (D)  execute
and file with the Commission a registration statement on Form 8-A, including any amendments thereto, prepared by the Sponsor, relating to the
registration of the Preferred Securities under Section 12(b) of the Exchange Act; 


        (E)  execute
and deliver the documents relating to the Securities to which the Trust is a party, including the Underwriting Agreement, a remarketing agreement, a debenture
subscription agreement and a common securities subscription agreement; and 


        (F)  execute
and deliver letters, documents or instruments with DTC and other Clearing Agencies relating to the Preferred Securities; 




        (iii)  to
acquire the Debentures with the proceeds of the sale of the Preferred Securities and the Common Securities;  provided, however, that the Administrative
Trustees shall cause legal title to the Debentures to be held
of record in the name of the Property Trustee for the benefit of the Trust and the Holders of the Preferred Securities and the Holders of Common Securities; 


        (iv)  to
establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes
of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, repayments, redemptions and exchanges, and to issue relevant notices to the Holders of Preferred Securities and
Holders of Common Securities as to such actions and applicable record dates; 


        (v)  to
take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of the Securities and this Declaration; 


        (vi)  to
the fullest extent permitted by law, to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section 3.8(e) the Property Trustee has the exclusive power to bring such Legal Action; 



        (vii) to
employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors, and consultants and pay such
compensation for such services as from time to time is agreed upon in writing; 



11





 




        (viii)  to
cause the Trust to comply with the Trust's obligations under the Trust Indenture Act; 



        (ix)  to
give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative
Trustee; 


        (x)  to
incur expenses that are necessary, appropriate, convenient or incidental to carry out any of the purposes of the Trust; 


        (xi)  to
act as, or appoint another Person to act as, registrar and transfer agent for the Securities; 


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


        (xiii)  to
take any action, not inconsistent with this Declaration or with applicable law, that the Administrative Trustees determine in their discretion to be
necessary or desirable in carrying out the activities of the Trust, including, but not limited to: 



        (A)  causing
the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act; 


        (B)  causing
the Trust to be classified for United States federal income tax purposes as a grantor trust; and 


        (C)  cooperating
with the Debenture Issuer to ensure that the Debentures will be treated as indebtedness of the Debenture Issuer for United States federal income tax
purposes, provided that such action relating to this clause (C) does not adversely affect the interests of Holders; 




12











  



      (xiv)  to
take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly
prepared and filed by the Administrative Trustees, on behalf of the Trust; and 



      (xv)  to
execute all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary, appropriate,
convenient or incidental to the foregoing. 




        (b)  The
Administrative Trustees must exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Trust set
out in Section 3.3, and the Administrative Trustees shall not take any action that is inconsistent with the purposes and functions of the Trust set forth in Section 3.3. 



        (c)  Subject
to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8.
No permission or authority available to the Administrative Trustees shall be construed to be a duty. 


SECTION
3.7    PROHIBITION OF ACTIONS BY THE TRUST AND THE TRUSTEES.    


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



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


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


        (iii)  possess
Trust property for other than a Trust purpose; 


        (iv)  make
any loans or incur any indebtedness for borrowed money, other than loans represented by the Debentures; 



        (v)  possess
any power or otherwise act in such a way as to vary the Trust assets or the terms of the Securities in any way whatsoever; 


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


      (vii)  other
than as provided in this Declaration or Annex I, 



        (A)  direct
the time, method and place of exercising any trust or power conferred upon the Debenture Trustee with respect to the Debentures, 


        (B)  waive
any past default that is waivable under the Indenture, 


        (C)  exercise
any right to rescind or annul any declaration that the principal of all the Debentures shall be due and payable, or 


        (D)  consent
to any amendment, modification or termination of the Indenture or the Debentures where such consent shall be required, unless, in the case of clauses (B),
(C) and (D), the Trust shall have received an opinion of counsel to the effect that for United States federal income tax purposes the Trust will not be classified as other than a grantor trust
as a result of such action. 





SECTION
3.8    POWERS AND DUTIES OF THE PROPERTY TRUSTEE.    


        (a)  The
legal title to the Debentures shall be owned by and held of record in the name of the Property Trustee in trust for the benefit of the Trust and the Holders of the
Securities. The right, title 


13





 




and interest of the Property Trustee to the Debentures shall vest automatically in each Person who may hereafter be appointed as Property Trustee in accordance with Section 5.6. Such vesting
and cessation of
title shall be effective whether or not conveyancing documents with regard to the Debentures have been executed and delivered. 


        (b)  The
Property Trustee shall not transfer its right, title and interest in the Debentures to the Administrative Trustees or to the Delaware Trustee (if the Property
Trustee does not also act as Delaware Trustee). 


        (c)  The
Property Trustee shall: 



          (i)  establish
and maintain a segregated non-interest bearing trust account (the "Property Trustee Account") in the name of and under the exclusive control of
the Property Trustee on behalf of the Trust and the Holders of the Securities and, upon the receipt of payments of funds made in respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Trustee Account and make payments to the Holders of the Preferred Securities and Holders of the Common Securities from the Property Trustee Account in accordance with
Section 6.1. Funds in the Property Trustee Account shall be held uninvested until disbursed in accordance with this Declaration. The Property Trustee Account shall be an account that is
maintained with a banking institution whose long-term unsecured indebtedness is rated at least "A" or above by a "nationally recognized statistical rating organization," as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act; 


        (ii)  engage
in such ministerial activities as shall be necessary, appropriate, convenient or incidental to effect the repayment of the Preferred Securities and the Common
Securities to the extent the Debentures mature or are redeemed; and 


        (iii)  upon
written notice of distribution issued by the Administrative Trustees in accordance with the terms of the Securities, engage in such ministerial activities as
shall be necessary, appropriate, convenient or incidental to effect the distribution of the Debentures to Holders of Securities upon the dissolution of the Trust as set forth herein and in the terms
of the Securities attached as Annex I hereto. 




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


        (e)  (i) Subject
to Section 3.9(a), the Property Trustee may take any Legal Action which arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the Property Trustee's duties and obligations under this Declaration, or the Trust Indenture Act;  provided, however, that if the Property Trustee fails to enforce its rights under the Debentures after a
Holder of Preferred Securities has made a written request, such Holder of Preferred Securities may, to the fullest extent permitted by applicable law, institute a legal proceeding
against the Debenture Issuer without first instituting any legal proceeding against the Property Trustee or any other Person. 



        (ii)  Notwithstanding
the foregoing clause (i), if an Event of Default has occurred and is continuing and such event is attributable to the failure of the Debenture
Issuer to pay interest on or principal of the Debentures on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding for enforcement of payment to such Holder of the principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation
amount of the Preferred Securities of such holder (a "Direct Action") on or after the due date specified in the Debentures. In connection with such Direct Action, the rights of the Holders of Common
Securities will be subordinated to the rights of such Holders of Preferred Securities. In connection with such Direct Action, the Debenture Issuer shall be subrogated to the rights of such Holder of 



14





 


Preferred Securities with respect to payments on the Preferred Securities under this Declaration to the extent of any payment made by the Debenture Issuer to such Holder of Preferred Securities in
such Direct Action. Except as provided in the preceding sentences, the Holders of Preferred Securities will not be able to exercise directly any other remedy available to the Holders of the
Debentures. 




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



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



        (ii)  a
Successor Property Trustee has been appointed and has accepted that appointment in accordance with Section 5.6 (a "Successor Property Trustee"). 




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



        (h)  Subject
to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in
Section 3.6. The Property Trustee is authorized to undertake any actions set forth in Section 317(a) of the Trust Indenture Act. 


        (i)    The
Property Trustee must exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Trust set out in
Section 3.3, and the Property Trustee shall not take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.3. 



SECTION
3.9    CERTAIN DUTIES AND RESPONSIBILITIES OF THE PROPERTY TRUSTEE.    


        (a)  The
Property Trustee, before the occurrence of any Event of Default and after the curing or waiver of all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this Declaration and no implied covenants or obligations shall be read into this Declaration against the Property Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Property Trustee has actual knowledge, the Property Trustee shall exercise
such of the rights and powers vested in it by this Declaration, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs. 


        (b)  No
provision of this Declaration 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 an 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 Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this Declaration, and no implied covenants or obligations shall be read into this Declaration against the
Property Trustee; 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 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 Declaration; but in the case of any such certificates or 




15





 






opinions that by any provision hereof 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 on
their face they conform to the requirements of this Declaration (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein); 




        (ii)  the
Property Trustee shall not be liable for any error of judgment made in good faith by a Responsible 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
not less than a Majority in liquidation amount of the 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 Declaration; 



        (iv)  no
provision of this Declaration 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 it shall have reasonable grounds for believing that the repayment of such funds is not reasonably assured to it under the
terms of this Declaration or if indemnity reasonably satisfactory to the Property Trustee against such risk or liability is not reasonably assured to it; 


        (v)  the
Property Trustee's sole duty with respect to the custody, safekeeping and physical preservation of the Debentures and the Property Trustee Account shall be to deal
with such property in a similar manner as the Property Trustee deals with similar property for its fiduciary accounts generally, subject to the protections and limitations on liability afforded to the
Property Trustee under this Declaration, the Statutory Trust Act and the Trust Indenture Act; 


        (vi)  the
Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the Debentures or the payment of any
taxes or assessments levied thereon or in connection therewith; 


      (vii)  the
Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree in writing with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds held by it except in relation to the Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and 


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




SECTION
3.10    CERTAIN RIGHTS OF THE PROPERTY TRUSTEE.    


        (a)  Subject
to the provisions of Section 3.9: 



          (i)  the
Property Trustee may in absence of bad faith conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be
genuine (and with respect to the certificates, reports, statements and opinions, are, in the absence of bad faith, believed by it to be true and accurate) and to have been signed, sent or presented by
the proper party or parties; 



16





 

        (ii)  any
direction or act of the Sponsor or the Administrative Trustees contemplated by this Declaration shall be sufficiently evidenced by a Direction or an Officer's
Certificate; 


        (iii)  whenever
in the administration of this Declaration, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of negligence or bad faith on its part, request and conclusively rely
upon an Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees; 


        (iv)  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; 



        (v)  the
Property Trustee may consult with counsel or other experts of its selection and the advice or opinion of such counsel and experts with respect to matters or advice
within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time
to seek instructions concerning the administration of this Declaration from any court of competent jurisdiction; 



        (vi)  the
Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration at the request or direction of any Holder,
unless such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the reasonable costs, expenses (including reasonable
attorneys' fees and expenses and the reasonable expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee, provided that nothing contained in this Section 3.10(a)(vi) 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 Declaration in the manner provided by Section 3.9(a); 


      (vii)  the
Property Trustee shall be under no obligation to conduct an investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see fit; 


      (viii)  the
Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees
or attorneys and 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 in compliance with this
Declaration; 


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



        (x)  whenever
in the administration of this Declaration 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 of the 



17





 





Securities which instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would be entitled to direct the Property Trustee under the terms of
the 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 protected in conclusively relying on or acting in accordance with such instructions; 


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


      (xii)  the
Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without negligence, and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon it by this Declaration; 



      (xiii)  the
Property Trustee shall not be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the Trust under this Declaration, except if such breach or failure is due to any negligence, willful misconduct or bad faith of
the Property Trustee; and 


      (xiv)  without
prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in
connection with a bankruptcy, such expenses (including the reasonable fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration
under any bankruptcy law or law relating to creditors' rights generally. 



18











  





        (b)  No provision of this Declaration shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty
or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the 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 the Property Trustee shall be construed to be a duty. 


SECTION
3.11    DELAWARE TRUSTEE.    


        (a)  Notwithstanding
any other provision of this Declaration other than Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Trustees (except as required under the Statutory Trust Act) described in this Declaration. Except as set forth in
Section 5.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Statutory Trust Act. In the event that the
Delaware Trustee shall at any time be required to take any action or perform any duty hereunder, the Delaware Trustee shall be entitled to the benefits of Section 3.9(b)(ii) through
(viii) and Section 3.10. No implied covenants or obligations shall be read into this Declaration against the Delaware Trustee. 


        (b)  It
is expressly understood and agreed by the parties hereto that in fulfilling its obligations as Delaware Trustee hereunder on behalf of the Trust (i) any
agreements or instruments executed and delivered by Chase Manhattan Bank USA, National Association, or any Successor Delaware Trustee, are executed and delivered not in its individual capacity but
solely as Delaware Trustee under this Declaration in the exercise of the powers and authority conferred and vested in it, (ii) each of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as representations, warranties, covenants, undertakings and agreements by Chase Manhattan Bank USA, National Association, or any Successor
Delaware Trustee, in its individual capacity but is made and intended for the purpose of binding only the Trust, and (iii) under no circumstances shall Chase Manhattan Bank USA, National
Association, or any Successor Delaware Trustee, in its individual capacity be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the Trust under this Declaration, except if such breach or failure is due to any gross negligence, willful misconduct or bad
faith of the Delaware Trustee. 


SECTION
3.12    EXECUTION OF DOCUMENTS.    


        Except
as otherwise required by applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents that the Administrative Trustees have the power
and authority to execute pursuant to Section 3.6. 


SECTION
3.13    NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.    



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


SECTION
3.14    DURATION OF TRUST.    


        The
Trust, unless dissolved pursuant to the provisions of Article VIII hereof, shall dissolve on    •    


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SECTION
3.15    MERGERS.    


        (a)  The
Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to
any Person, except as described in Section 3.15(b) and (c). 


        (b)  The
Trust may, with the consent of the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees and without the consent of the
Holders of the Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by a trust organized as such under the laws of any State if: 



          (i)  the
Trust is not the surviving entity, and the successor entity (the "Successor Entity") either: 



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


        (B)  substitutes
for the Preferred Securities other securities having substantially the same terms as the Preferred Securities (the "Successor Securities"), so long as the
Successor Securities rank the same as the Preferred Securities rank with respect to Distributions and payments upon liquidation, redemption, repayment and otherwise; 




        (ii)  the
Debenture Issuer expressly acknowledges a trustee of the Successor Entity that possesses the same powers and duties as the Property Trustee as the holder of the
Debentures; 


        (iii)  the
Preferred Securities are listed or quoted, any Successor Securities will be listed or quoted upon notification of issuance, on any national securities exchange,
national automated quotation system or with another organization on which the Preferred Securities are then listed or quoted; 


        (iv)  such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization; 


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


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


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



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


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



        (C)  following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Trust (or the Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax purposes; 




20





 






      (viii)  the
Sponsor owns, directly or indirectly, all of the common securities of such Successor Entity; 



        (ix)  the
Sponsor guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Securities Guarantees; and 


        (x)  there
shall have been furnished to the Property Trustee an Officer's Certificate and an Opinion of Counsel, each to the effect that all conditions precedent in this
Declaration to such transaction have been satisfied. 




        (c)  Notwithstanding
Section 3.15(b), the Trust shall not, except with the consent of Holders of 100% in liquidation amount of the Securities, consolidate, amalgamate,
merge with or into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes. 


SECTION
3.16    PROPERTY TRUSTEE MAY FILE PROOFS OF CLAIM.    


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



        (a)  to
file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the 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 moneys 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
herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or compensation affecting the 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. 


21





 


 
 

ARTICLE IV
  SPONSOR    
  


SECTION
4.1    SPONSOR'S PURCHASE OF COMMON SECURITIES.    


        On
the Closing Date, the Sponsor will purchase all of the Common Securities issued by the Trust, in an amount at least equal to    % of the capital of the Trust, at the same
time as the Preferred Securities are sold. 


SECTION
4.2    RIGHTS AND RESPONSIBILITIES OF THE SPONSOR.    



        In
connection with the issue, sale and, if necessary, the remarketing of the Preferred Securities, the Sponsor shall have the exclusive right and responsibility to engage in the
following activities: 


        (a)  to
prepare for filing by the Trust with the Commission and execute a registration statement on Form S-3 or on another appropriate form (including, if
appropriate, a registration statement under Rule 462(b) of the Securities Act) and any pre-effective or post-effective amendments or supplements thereto, relating to the
registration under the Securities Act of the Preferred Securities; 


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


        (c)  if
necessary, to prepare for filing by the Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of the Units and, if applicable, of the Preferred Securities; 


        (d)  if
necessary, to prepare for filing by the Trust with the Commission of a registration statement on Form 8-A, including any pre-effective
or post-effective amendment thereto, relating to the registration of the Preferred Securities under Section 12(b) of the Exchange Act, including any amendments thereto; and 



        (e)  to
negotiate the terms of and execute on behalf of the Trust, the Underwriting Agreement providing for the sale of the Preferred Securities. 


SECTION
4.3    RIGHT TO PROCEED.    


        The
Sponsor acknowledges the rights of Holders to institute a Direct Action as set forth in Section 3.8(e) hereto. 


SECTION
4.4    EXPENSES.    


        In
connection with the offering, sale and issuance of the Debentures to the Property Trustee and in connection with the sale of the Securities by the Trust, the Sponsor, in its capacity
as borrower with respect to the Debentures, shall: 


        (a)  pay
all costs and expenses relating to the offering, sale and issuance of the Debentures, including commissions to the underwriters payable pursuant to the Underwriting
Agreement and compensation of the Debenture Trustee under the Indenture in accordance with the provisions of the Indenture; 


        (b)  be
responsible for and shall pay all debts and obligations (other than with respect to the Securities) and all costs and expenses of the Trust including, but not limited
to, costs and expenses relating to the organization, maintenance and dissolution of the Trust, the offering, sale and issuance of the Securities (including commissions to the underwriters in
connection therewith), the fees and expenses (including reasonable counsel fees and expenses) of the Property Trustee, the Delaware 


22





 




Trustee and the Administrative Trustees (including any amounts payable under Article X of this Declaration), the costs and expenses relating to the operation of the Trust, including, without
limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and computing or accounting equipment, paying agent(s), registrar(s),
transfer agent(s), duplicating, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the acquisition, financing, and disposition of Trust
assets and the enforcement by the Property Trustee of the rights of the Holders of the Securities; 


        (c)  be
primarily liable for any indemnification obligations arising under Section 10.4 with respect to this Declaration; and 


        (d)  pay
any and all taxes (other than United States withholding taxes attributable to the Trust or its assets) and all liabilities, costs and expenses with respect to such
taxes of the Trust. 


        The
Sponsor's obligations under this Section 4.4 shall be for the benefit of, and shall be enforceable by, any person to whom such debts, obligations, costs, expenses and taxes
are owed (a "Creditor") whether or not such Creditor has received notice hereof. Any such Creditor may enforce the Sponsor's obligations under this Section 4.4 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such Creditor take any action against the Trust or any other Person before proceeding against the Sponsor. The Debenture Issuer
agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 4.4. 


 
 

ARTICLE V
  TRUSTEES    
  


SECTION
5.1    NUMBER OF TRUSTEES.    


        (a)  The
number of Trustees initially shall be five (5). 


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



        (c)  After
the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of the Common Securities; provided, however,
that, the number of Trustees shall in no event be less than two (2), provided further that (i) one Trustee shall meet the requirements of
Section 5.2(a) and (b); (ii) there shall be at least one Trustee who is an employee or officer of, or is affiliated with the Sponsor (an "Administrative Trustee"); and (iii) one
Trustee shall be the Property Trustee for so long as this Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Property Trustee may also serve as Delaware Trustee
if it meets the applicable requirements. 


SECTION
5.2    DELAWARE TRUSTEE.    


        If
required by the Statutory Trust Act, one Trustee (the "Delaware Trustee") shall be: 


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


        (b)  if
not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law,  provided that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the requirements of applicable
law, then the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have no application. 


23





 



        (c)  The
initial Delaware Trustee shall be: 





Chase
Manhattan Bank USA, National Association

500 Stanton Christiana Road, Building 4, 3rd Floor

Newark, Delaware 19713

Attn: Institutional Trust Services 

Fax: 






SECTION
5.3    PROPERTY TRUSTEE; ELIGIBILITY.    


        (a)  There
shall at all times be one Trustee which shall act as Property Trustee for so long as this Declaration is required to qualify as an Indenture under the Trust
Indenture Act, which shall: 



          (i)  not
be an Affiliate of the Sponsor; and 


        (ii)  be
a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as a Property Trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by Federal, State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority referred to above, then for the purposes of this
Section 5.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. 




        (b)  If
at any time the Property Trustee shall cease to be eligible to so act under Section 5.3(a), the Property Trustee shall immediately resign in the manner and
with the effect set forth in Section 5.6(c). 


        (c)  If
the Property Trustee has or shall acquire any "conflicting interest" within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act. 


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


24









  





        (e)  The initial Property Trustee shall be: 




JPMorgan
Chase Bank

450 West 33rd Street, 15th Floor

New York, New York 10001

Attn: Institutional Trust Services

Fax: 





SECTION
5.4    CERTAIN QUALIFICATIONS OF ADMINISTRATIVE TRUSTEES AND DELAWARE TRUSTEE GENERALLY.    


        Each
Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age
or a legal entity that shall act through one or more Authorized Officers. 


SECTION
5.5    ADMINISTRATIVE TRUSTEES.    


        The
initial Administrative Trustees shall be: 




Richard
Vaccaro

Scott D. Kaplan

Jonathan P. Hunt 





        (a)  Except
as otherwise expressly set forth in this Declaration and except if a meeting of the Administrative Trustees is called with respect to any matter over which the
Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee. 



        (b)  Except
as otherwise required by applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents which the Administrative
Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6. 


SECTION
5.6    APPOINTMENT, REMOVAL AND RESIGNATION OF TRUSTEES.    


        (a)  Subject
to Section 5.6(b), Trustees may be appointed or removed with or without cause at any time: 



          (i)  until
the issuance of any Securities, by written instrument executed by the Sponsor; and 



        (ii)  after
the issuance of any Securities, by vote of the Holders of a Majority in liquidation amount of the Common Securities voting as a class at a meeting of the Holders
of the Common Securities. 




        (b)  (i) The
Trustee that acts as Property Trustee shall not be removed in accordance with Section 5.6(a) until a Successor Property Trustee possessing the
qualifications to act as Property Trustee under Section 5.3 has been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and delivered
to the Administrative Trustees and the Sponsor; and 



        (ii)  The
Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 5.6(a) until a successor Delaware Trustee possessing the qualifications
to act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor Delaware Trustee") has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Administrative Trustees and the Sponsor. 




        (c)  A
Trustee appointed to office shall hold office until such Trustee's successor shall have been appointed or until such Trustee's death, removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee 


25





 


and delivered to the Sponsor and the Administrative Trustee, which resignation shall take effect upon such delivery or upon such later date as is specified therein;  provided, however, that: 



          (i)  no
such resignation of the Trustee that acts as the Property Trustee shall be effective: 



        (A)  until
a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the
Administrative Trustee, the Sponsor and the resigning Property Trustee; or 


        (B)  until
the assets of the Trust have been completely liquidated and the proceeds thereof distributed to the Holders of the Securities; and 




        (ii)  no
such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such
appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee. 




        (d)  The
Holders of the Common Securities shall use reasonable efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if
the Property Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this Section 5.6. 



        (e)  If
no Successor Property Trustee or Successor Delaware Trustee shall have been appointed and accepted appointment as provided in this Section 5.6 within
60 days after delivery to the Sponsor and the Trust of an instrument of resignation, the resigning Property Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction for appointment of a Successor Property Trustee or Successor Delaware Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor
Property Trustee or Successor Delaware Trustee, as the case may be. 



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


        (g)  At
the time of resignation or removal of the Property Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee any amounts that may be owed to such Trustee
pursuant to the Indenture. 


SECTION
5.7    VACANCIES AMONG TRUSTEES.    


        If
a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is increased pursuant to
Section 5.1, a vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two Administrative Trustees, a majority of
the Administrative Trustees shall be conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section 5.6. 


SECTION
5.8    EFFECT OF VACANCIES.    


        The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to dissolve, terminate
or annul the Trust. Whenever a vacancy among the Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with
Section 5.6, the Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon
the Administrative Trustees by this Declaration. 


SECTION
5.9    MEETINGS.    


        If
there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call of any Administrative Trustee. Regular meetings of
the 


26





 




Administrative Trustees may be held at a time and place fixed by resolution of the Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, followed by a hard copy by overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings
of the Administrative Trustees or any committee thereof shall be hand delivered or otherwise delivered in writing (including by facsimile, followed by a hard copy by overnight courier) not less than
24 hours before a meeting. Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting. The presence (whether in person or by telephone) of an
Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative Trustee attends a meeting for the express purpose of objecting to the transaction
of any activity on the ground that the meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration, any action of the Administrative Trustees may be taken at
(i) a meeting by vote of a majority of the Administrative Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter,  provided that a Quorum is present,
or (ii) without a meeting and without prior notice by the unanimous written consent of the Administrative
Trustees. In the event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee. 


SECTION
5.10    DELEGATION OF POWER.    


        (a)  Any
Administrative Trustee 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 that the Administrative Trustees have power and authority to cause the Trust to execute pursuant to Section 3.6, including any registration statement or
amendment thereto filed with the Commission, or making any other governmental filing. 



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


SECTION
5.11    MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.    


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


 
 

ARTICLE VI
  DISTRIBUTIONS    
  


SECTION
6.1    DISTRIBUTIONS.    


        Holders
shall receive distributions (each, a "Distribution") in accordance with the applicable terms of the relevant Holder's Securities. Distributions shall be made on the Preferred
Securities and the Common Securities in accordance with the preferences set forth in their respective terms, attached hereto as Annex I. If and to the extent that the Debenture Issuer makes a payment
of interest (including compounded interest), premium and/or principal on the Debentures held by the Property Trustee (the amount of any such payment being a "Payment Amount"), the Property Trustee
shall and 


27





 




is directed, to the extent it has actually received such funds which are available for that purpose, to make a distribution of the Payment Amount to Holders. Distributions and any other payments with
respect to the Securities shall be payable in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. 


 
 

ARTICLE VII
  ISSUANCE OF SECURITIES    
  


SECTION
7.1    GENERAL PROVISIONS REGARDING SECURITIES.    


        (a)  The
Administrative Trustees shall, on behalf of the Trust, issue one class of preferred securities representing undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Annex I (the "Preferred Securities") and one class of common securities representing undivided beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Common Securities"). The Trust shall issue no securities or other interests in the assets of the Trust other than the Preferred Securities and the Common Securities. 


        (b)  (i) The
Certificates shall be signed on behalf of the Trust by an Administrative Trustee. Such signature shall be the manual or facsimile signature of any
present or any future Administrative Trustee. In case any Administrative Trustee who shall have signed any of the Securities shall cease to be such Administrative Trustee before the Certificates so
signed shall be delivered by the Trust, such Certificates nevertheless may be delivered as though the Person who signed such Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by such Persons who, at the actual date of execution of such Certificate, shall be the Administrative Trustees of the Trust, although at the date of
the execution and delivery of the Declaration any such Person was not such an Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced in any other manner as
is reasonably acceptable to the Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or
endorsements as the Administrative Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Securities may be listed,
or to conform to usage. 



        (ii)  A
Certificate representing Preferred Securities shall not be valid until authenticated by the manual signature of an authorized officer of the Property Trustee. Such
signature shall be conclusive evidence that such Certificate has been authenticated under this Trust Agreement. 


        (iii)  The
Preferred Security Certificates and the Common Security Certificates shall be dated their date of authentication. 


        (iv)  Upon
a written order of the Trust signed by one Administrative Trustee, the Property Trustee shall concurrently with the initial issuance of the Securities,
authenticate the Certificates representing the Preferred Securities. 


        (v)  The
Property Trustee may appoint an authenticating agent acceptable to the Trust to authenticate Certificates. An authenticating agent may authenticate Certificates
whenever the Property Trustee may do so. Each reference in this Declaration to authentication by the Property Trustee includes authentication by such agent. An authenticating agent has the same rights
as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor. 




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


        (d)  Upon
issuance of the Securities as provided in this Declaration, subject to Section 10.1(b), the Securities so issued shall be deemed to be validly issued, fully
paid and non-assessable undivided beneficial interests in the assets of the Trust. 


28





 



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


SECTION
7.2    PAYING AGENT; REGISTRAR.    


        (a)  In
the event that the Preferred Securities are not in book-entry only form, the Trust shall maintain an office or agency in the Borough of Manhattan, The
City of New York where the Preferred Securities may be presented for payment ("Paying Agent"), and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. The
Administrative Trustee on behalf of the Trust may appoint the Paying Agent and may appoint one or more additional paying agents in such other locations, as it shall determine. The term "Paying Agent"
includes any additional paying agent. The Administrative Trustee may change any Paying Agent without prior notice to any Holder. The Administrative Trustee shall notify the Property Trustee of the
name and address of any Paying Agent not a party to this Declaration. If the Administrative Trustee fails to appoint or maintain another entity as Paying Agent, the Property Trustee shall act as such.
The Administrative Trustee or any of its Affiliates (including the Sponsor) may act as Paying Agent. The Property Trustee at its Corporate Trust Office shall initially act as Paying Agent for the
Preferred Securities and the Common Securities. 


        (b)  The
Trust shall maintain in the Borough of Manhattan, The City of New York, an office or agency where Preferred Securities may be presented for registration of transfer
("Registrar"). The Registrar shall keep a register of the Preferred Securities and of their transfer. The Administrative Trustee may appoint the Registrar and may appoint one or more
co-registrars in such other locations as it shall
determine. The term "Registrar" includes any additional registrar. The Administrative Trustee may change any Registrar or co-registrar without prior notice to any Holder. The
Administrative Trustee shall notify the Property Trustee of the name and address of any Agent not a party to this Declaration. If the Administrative Trustee fails to appoint or maintain another entity
as Registrar, the Property Trustee shall act as such. The Administrative Trustee or any of its Affiliates may act as Registrar. The Trust shall act as Registrar for the Common Securities. 



        (c)  Notwithstanding
Sections 3.6(a)(iii)(F) and 3.6(a)(xii), the Trust initially appoints the Property Trustee as Registrar for the Preferred Securities and authorizes it to
execute and deliver letters, documents and instruments with DTC and other Clearing Agencies relating to the Preferred Securities. 


SECTION
7.3    Paying Agent to hold money in Trust.    


        The
Trust shall require each Paying Agent other than the Property Trustee to agree in writing that the Paying Agent will hold in Trust for the benefit of Holders or the Property Trustee
all money held by the Paying Agent for the payment of principal or distributions on securities, and will notify the Property Trustee if there are insufficient funds, while any such insufficiency
continues, the Property Trustee may require a Paying Agent to pay all money held by it to the Property Trustee. The Trust at any time may require a Paying Agent to pay all money held by it to the
Property Trustee and to account for any money disbursed by it. Upon payment to the Property Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust) shall have no further
liability for the money. If the Trust or the Sponsor or an Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall segregate and hold in a separate Trust fund for the benefit of the
Holders all money held by it as Paying Agent. 


 
 

ARTICLE VIII
  TERMINATION OF TRUST    
  


SECTION
8.1    DISSOLUTION OF TRUST.    


        (a)  The
Trust shall dissolve upon the first of the following to occur: 



          (i)  upon
the bankruptcy of any Holder of the Common Securities or the Sponsor; 



29







  




        (ii)  upon
the filing of a certificate of dissolution or its equivalent with respect to the Sponsor; or the revocation of the Sponsor's charter and the expiration of
90 days after the date of revocation without a reinstatement thereof; 


        (iii)  upon
the entry of a decree of judicial dissolution of the Holder of the Common Securities, the Sponsor or the Trust; 


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


        (v)  upon
the written consent to dissolve of all of the Administrative Trustees and the Sponsor; or 


        (vi)  the
expiration of the term of the Trust provided in Section 3.14 of this Declaration. 




        (b)  As
soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and upon completion of the winding-up of the Trust in
accordance with Section 3808 of the Statutory Trust Act, the Administrative Trustees shall file a certificate of cancellation of the certificate of trust of the Trust with the Secretary
of State of the State of Delaware. 


        (c)  The
provisions of Section 4.4 and Article X shall survive the termination of the Trust. 


 
 

ARTICLE IX
  TRANSFER OF INTERESTS    
  


SECTION
9.1    TRANSFER OF SECURITIES.    


        (a)  Securities
may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Declaration and in the terms of the Securities. To
the fullest extent permitted by law, any transfer or purported transfer of any Security not made in accordance with this Declaration shall be null and void. 


        (b)  Subject
to this Article IX, Preferred Securities shall be freely transferable. 


        (c)  Subject
to this Article IX, the Sponsor and any Related Party may only transfer Common Securities to the Sponsor or a Related Party of the Sponsor;  provided, that any such transfer is subject to the
condition precedent that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not cause more than an insubstantial risk that: 



          (i)  the
Trust would not be classified for United States federal income tax purposes as a grantor trust; and 


        (ii)  the
Trust would be an Investment Company or the transferee would become an Investment Company. 




SECTION
9.2    TRANSFER OF CERTIFICATES.    


        The
Registrar shall provide for the registration of Certificates and of transfers of Certificates, which will be effected without charge but only upon payment (with such reasonable
indemnity as the Registrar may require) in respect of any tax or other government charges that may be imposed in relation to it. Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall execute, and in the case of Preferred Securities the Property Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount. At the option of the Holder, Securities may be exchanged for
other Securities of any authorized 


30





 




denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Trust
shall execute, and in the case of Preferred Securities the Property Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Every
Certificate surrendered for registration of transfer shall be accompanied by a written instrument of transfer in form satisfactory to the Property Trustee duly executed by the Holder or such Holder's
attorney duly
authorized in writing. Each Certificate surrendered for registration of transfer shall be canceled by the Registrar. A transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a Certificate. By acceptance of a Certificate, each transferee shall be deemed to have agreed to be bound by this Declaration. 


SECTION
9.3    DEEMED SECURITY HOLDERS.    


        The
Trustees may treat the Person in whose name any Certificate shall be registered in the register maintained by the Registrar or on the books and records of the Trust as the sole
Holder of such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions (subject to the record date provisions hereof) and for all other purposes
whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Securities represented by such Certificate on the part of any
Person, whether or not the Trust shall have actual or other notice thereof. 


SECTION
9.4    BOOK-ENTRY INTERESTS.    


        Unless
otherwise specified in the terms of the Preferred Securities, the Preferred Securities Certificates, on original issuance, will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global Certificate"), to be delivered to DTC, (the initial Clearing Agency) or its custodian, by, or on behalf of, the Trust. Such Global
Certificate(s) shall initially be registered on the books and records of the Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security Beneficial Owner will receive a
definitive Preferred Security Certificate representing such Preferred Security Beneficial Owner's interests in such Global Certificate(s), except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive Preferred Security Certificates) have been issued to the Preferred Security Beneficial Owners pursuant to
Section 9.7: 



        (a)  the
provisions of this Section 9.4 shall be in full force and effect; 


        (b)  the
Trust and the Trustees shall be entitled to deal with the Clearing Agency for all purposes of this Declaration (including the payment of Distributions on the Global
Certificate(s) and receiving approvals, votes or consents hereunder) as the Holder of the Preferred Securities and the sole holder of the Global Certificate(s) and shall have no obligation to the
Preferred Security Beneficial Owners; 


        (c)  to
the extent that the provisions of this Section 9.4 conflict with any other provisions of this Declaration, the provisions of this Section 9.4 shall
control; and 


        (d)  the
rights of the Preferred Security Beneficial Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and
agreements between such Preferred Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants to receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book-entry transfers among the Clearing Agency Participants; provided, that, solely for the purposes of determining whether
the Holders of the requisite amount of Preferred Securities have voted on any matter provided for in this Declaration, so long as Definitive Preferred Security Certificates have not been issued, the
Trustees may conclusively rely on, and shall be protected in relying on, any written instrument (including a proxy) delivered to the Trustees by the Clearing Agency setting forth the Preferred
Security 



31





 





Beneficial Owners' votes or assigning the right to vote on any matter to any other Persons either in whole or in part. None of the Trustees or the Sponsor will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Certificate or maintaining, supervising or reviewing any records relating to such
beneficial ownership interests. 


        (e)  Notwithstanding
any other provisions of this Declaration (other than the provisions set forth in Section 9.1), Global Certificates may not be transferred as a
whole except by the Clearing Agency to a nominee of the Clearing Agency or by a nominee of the Clearing Agency to the Clearing Agency or another nominee of the Clearing Agency or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee of such successor Clearing Agency. 




SECTION
9.5    NOTICES TO CLEARING AGENCY.    


        Whenever
a notice or other communication to the Preferred Security Holders is required under this Declaration, unless and until definitive fully registered Preferred Security
Certificates shall have been issued to the Preferred Security Beneficial Owners pursuant to Section 9.7 or otherwise, the Trustees shall give all such notices and communications specified
herein to be given to the Preferred Security Holders to the Clearing Agency, and the Trustees shall have no notice obligations to the Preferred Security Beneficial Owners. 


SECTION
9.6    APPOINTMENT OF SUCCESSOR CLEARING AGENCY.    


        If
any Clearing Agency elects to discontinue its services as securities depositary with respect to the Preferred Securities, the Administrative Trustees may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Preferred Securities. 


SECTION
9.7    DEFINITIVE PREFERRED SECURITY CERTIFICATES.    


        (a)  If:




          (i)  a
Clearing Agency elects to discontinue its services as securities depositary with respect to the Preferred Securities and a successor Clearing Agency is not appointed
within 90 days after such discontinuance pursuant to Section 9.6; or 



        (ii)  the
Administrative Trustees elect after consultation with the Sponsor to terminate the book-entry system through the Clearing Agency with respect to the
Preferred Securities, then: 




definitive
fully registered Preferred Security Certificates shall be prepared by the Administrative Trustees on behalf of the Trust with respect to such Preferred Securities. 


        (b)  Upon
surrender of the Global Certificate(s) by the Clearing Agency in connection with the preparation of Definitive Preferred Securities Certificates, accompanied by
registration instructions, the Administrative Trustees on behalf of the Trust shall cause definitive fully registered Preferred Securities Certificates to be delivered to Preferred Security Beneficial
Owners in accordance with the instructions of the Clearing Agency. Neither the Trustees nor the Trust shall be liable for any delay in delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions of the Clearing Agency. The definitive fully registered Preferred Security Certificates shall be printed, lithographed or engraved or
may be produced in any other manner as is reasonably acceptable to the Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements as the Administrative Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which Preferred Securities may be listed, or to conform to usage. 


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SECTION
9.8    MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.    


        If:




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


        (b)  there
shall be delivered to the Administrative Trustees, the Property Trustee and any Registrar such security or indemnity as may be required by them to keep each of
them and the Trust harmless, then, 




in
the absence of notice that such Certificate shall have been acquired by a protected purchaser, any Administrative Trustee on behalf of the Trust shall execute and deliver, and, with respect to
Preferred Securities Certificates, the Property Trustee shall authenticate in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this Section 9.8, the Administrative Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time. The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement of mutilated, destroyed, lost or stolen Certificates. 


SECTION
9.9    CANCELLATION.    


        All
Certificates surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Property Trustee, be delivered to the
Property Trustee and shall be promptly cancelled by it. No Certificates shall be executed or authenticated in lieu of or in exchange for any Certificates cancelled as provided in this Section, except
as permitted by this Trust Agreement. All cancelled Certificates held by the Property Trustee shall be disposed of by it in accordance with its customary procedures. 


 
 

ARTICLE X
  LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS    
  


SECTION
10.1    LIABILITY.    


        (a)  Except
as expressly set forth in this Declaration, the Debentures, the Securities Guarantees and the terms of the Securities, the Sponsor shall not be: 



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


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




        (b)  Pursuant
to Section 3803(a) of the Statutory Trust Act, the Holders of the Preferred Securities shall be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. 


SECTION
10.2    EXCULPATION.    


        (a)  No
Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in 


33





 




a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person's negligence, bad faith or willful misconduct with respect to such acts or omissions. 


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


SECTION
10.3    FIDUCIARY DUTY.    


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


        (b)  Unless
otherwise expressly provided herein: 



          (i)  whenever
a conflict of interest exists or arises between any Covered Person and an Indemnified Person; or 



        (ii)  whenever
this Declaration or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms
that are, fair and reasonable to the Trust or any Holder of Securities, the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case
the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of this Declaration or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law
or in equity or otherwise. 




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



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



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



34





 





SECTION
10.4    INDEMNIFICATION.    



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



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


        (iii)  Any
indemnification under paragraphs (i) and (ii) of this Section 10.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the Sponsor Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (A) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were
not parties to such action, suit or proceeding, (B) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion, or (C) by the Common Security Holder of the Trust. 


        (iv)  Expenses
(including reasonable attorneys' fees) incurred by a Sponsor Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the Sponsor in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking in form and substance satisfactory to the Sponsor (including with respect to such Sponsor Indemnified Person's solvency) by or on behalf of such Sponsor Indemnified Person to
repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Sponsor as authorized in this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Sponsor if a
determination is reasonably and promptly made (A) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (B) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (C) the Common Security Holder of the 



35





 





Trust, that, based upon the facts known to the Administrative Trustees, independent legal counsel or Common Security Holder at the time such determination is made, such person acted in bad faith or
in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal proceeding, that such Sponsor Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security Holder
reasonably determine that such person deliberately breached such person's duty to the Trust or its Common or Preferred Security Holders. 



        (v)  The
indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 10.4(a) shall not be deemed exclusive of
any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of shareholders or disinterested directors of the Sponsor or Preferred
Security Holders of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. All rights to indemnification under this
Section 10.4(a) shall be deemed to be provided by a contract between the Sponsor and each Sponsor Indemnified Person who serves in such capacity at any time while this Section 10.4(a) is
in effect. Any repeal or modification of this Section 10.4(a) shall not affect any rights or obligations then existing. 



        (vi)  The
Sponsor or the Trust may purchase and maintain insurance on behalf of any person who is or was a Sponsor Indemnified Person against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Sponsor would have the power to indemnify him against such liability under the provisions of this
Section 10.4(a). 


      (vii)  For
purposes of this Section 10.4(a), references to "the Trust" shall include, in addition to the resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was
serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this
Section 10.4(a) with respect to the resulting or surviving entity as such person would have with respect to such constituent entity if its separate existence had continued. 


      (viii)  The
indemnification and advancement of expenses provided by, or granted pursuant to, this Section 10.4(a) shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a Sponsor Indemnified Person and shall inure to the benefit of the successors, heirs, executors and administrators of such a person. 




        (b)  To
the fullest extent permitted by law, the Sponsor agrees to indemnify (i) the Property Trustee, (ii) the Delaware Trustee, (iii) any Affiliate of
the Property Trustee or the Delaware Trustee, and (iv) any officers, directors, shareholders, members, partners, employees, representatives, custodians, nominees or agents of the Property
Trustee or the Delaware Trustee (each of the Persons in (i) through (iv) being referred to as a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified Person
harmless against, any loss, liability or expense incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses (including reasonable legal fees and expenses) of defending itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The provisions of this Section 10.4(b) shall survive the termination of this Declaration, the dissolution of the Trust or the
resignation or removal of the Property Trustee or the Delaware Trustee, as the case may be. 


36





 

SECTION
10.5    OUTSIDE BUSINESSES.    



        (a)  Any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee (subject to Section 5.3(c)) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of
this Declaration in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper. Any Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall not be obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have
the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for,
or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates. 


        (b)  The
Sponsor agrees: 



          (i)  to
pay to the Property Trustee and Delaware Trustee from time to time such compensation as the Sponsor and the Property Trustee and Delaware Trustee shall from time to
time agree in writing for all services rendered by them hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); 


        (ii)  to
reimburse the Property Trustee and the Delaware Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee
or Delaware Trustee
in accordance with any provision of this Declaration (including the compensation and the expenses and disbursements of agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith. 




The
provisions of this Section shall survive the termination of this Declaration, the dissolution of the Trust and the resignation or removal of the Property Trustee or Delaware Trustee. 


37






  



 
 

ARTICLE XI
  ACCOUNTING    
  


SECTION
11.1    FISCAL YEAR.    


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


SECTION
11.2    CERTAIN ACCOUNTING MATTERS.    


        (a)  At
all times during the existence of the Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account, records and supporting documents,
which shall reflect in reasonable detail each transaction of the Trust. The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting
principles consistently applied. The Trust shall use the accrual method of accounting for United States federal income tax purposes. The books of account and the records of the Trust shall be examined
by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Administrative Trustees. 


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


        (c)  The
Administrative Trustees on behalf of the Trust shall cause to be duly prepared and filed with the appropriate taxing authority an annual United States federal income
tax return, on a Form 1041 or such
other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Trust with any state or local taxing authority. 


SECTION
11.3    BANKING.    


        The
Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided,  however, that all payments of funds in respect
of the Debentures held by the Property Trustee shall be made directly to the Property Trustee Account and
no other funds of the Trust shall be deposited in the Property Trustee Account. The sole signatories for such accounts shall be designated by the Administrative Trustees;  provided, however, that the Property Trustee shall designate the signatories for the Property Trustee
Account. 


SECTION
11.4    WITHHOLDING.    


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


38





 


 
 

ARTICLE XII
  AMENDMENTS AND MEETINGS    
  


SECTION
12.1    AMENDMENTS.    


        (a)  Except
as otherwise provided in this Declaration or by any applicable terms of the Securities, this Declaration may only be amended by a written instrument approved and
executed by the Sponsor and the Administrative Trustees (or, if there are more than two Administrative Trustees, a majority of the Administrative Trustees);  provided that 



          (i)  if
the amendment affects the rights, powers, duties, obligations or immunities of the Property Trustee, also by a written instrument approved and executed by the
Property Trustee; and 


        (ii)  if
the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee, also by a written instrument approved and executed by the
Delaware Trustee. 




        (b)  No
amendment shall be made: 



          (i)  unless,
in the case of any proposed amendment, the Property Trustee shall have first received; 



        (A)  an
Officer's Certificate from each of the Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Declaration (including the terms
of the Securities) and that all conditions precedent to the execution and delivery of such amendment have been satisfied; and 



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




        (ii)  to
the extent the result of such amendment would be to: 



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



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


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





        (c)  At
such time after the Trust has issued any Securities that remain outstanding, any amendment that would materially and adversely affect the rights, privileges or
preferences of any Holder of Securities may be effected only with such additional requirements as may be set forth in the terms of such Securities. 



        (d)  Section 9.1(c)
and this Section 12.1 shall not be amended without the consent of all of the Holders of the Securities. 


        (e)  Article IV
shall not be amended without the consent of the Holders of a Majority in liquidation amount of the Common Securities. 


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


39





 



        (g)  Notwithstanding
Section 12.1(c), this Declaration may be amended without the consent of the Holders of the Securities to: 



          (i)  cure
any ambiguity; 


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


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


        (iv)  conform
to any change in the Investment Company Act or the rules and regulations promulgated thereunder or any written change in interpretation or application of such
act or such rules or regulations by any legislative body, court, government agency or regulatory authority which amendment does not have a material adverse effect on the right, preferences or
privileges of the Holders; 


        (v)  modify,
eliminate and add to any provision of the Declaration to such extent as may be necessary; and 


        (vi)  cause
the Trust to continue to be classified for United States federal income tax purposes as a grantor trust. 




SECTION
12.2    MEETINGS OF THE HOLDERS OF SECURITIES; ACTION BY WRITTEN CONSENT.    


        (a)  Meetings
of the Holders of any class of Securities may be called at any time by the Administrative Trustees (or as provided in the terms of the Securities) to consider
and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Declaration, the terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 25% in
liquidation amount of such class of Securities. Such direction shall be given by delivering to the Administrative Trustees one or more requests to call a meeting in writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing
the Certificates held by the Holders of Securities exercising the right to call a meeting and only those Securities specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met. 


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



          (i)  notice
of any such meeting shall be given to all the Holders of Securities having a right to vote thereat at least 7 days and not more than 60 days before
the date of such meeting. Whenever a vote, consent or approval of the Holders of Securities is permitted or required under this Declaration, the terms of the Securities or the rules of any stock
exchange on which the Preferred Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of action without a meeting shall be given to the Holders of Securities entitled to vote who have not consented in writing. The Administrative
Trustees may specify that any written ballot submitted to the Security Holder for the purpose of taking any 



40





 


action without a meeting shall be returned to the Trust within the time specified by the Administrative Trustees; 


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


        (iii)  each
meeting of the Holders of the Securities shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate;
and 


        (iv)  unless
the Statutory Trust Act, this Declaration, the terms of the Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Preferred
Securities are then listed or traded otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities,
including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the
establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote. 



 
 

ARTICLE XIII
  REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE    
  


SECTION
13.1    REPRESENTATIONS AND WARRANTIES OF PROPERTY TRUSTEE.    


        The
Trustee that acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the date of this Declaration, and each Successor Property Trustee represents
and warrants to the Trust and the Sponsor at the time of the Successor Property Trustee's acceptance of its appointment as Property Trustee, that: 



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


        (b)  the
Property Trustee satisfies the requirements set forth in Section 5.3(a); 


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


        (d)  the
execution, delivery and performance of the Declaration by the Property Trustee does not conflict with or constitute a breach of the Articles of Organization or
By-laws of the Property Trustee; and 



41





 




        (e)  no
consent, approval or authorization of, or registration with or notice to, any State or Federal banking authority having jurisdiction over the trust powers of the
Property Trustee is required for the execution, delivery or performance by the Property Trustee, of the Declaration. 




SECTION
13.2    REPRESENTATIONS AND WARRANTIES OF DELAWARE TRUSTEE.    



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



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



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


        (c)  no
consent, approval or authorization of, or registration with or notice to, any State of Delaware or Federal banking authority is required for the execution, delivery
or performance by the Delaware Trustee of the Declaration; 


        (d)  the
execution, delivery and performance of the Declaration by the Delaware Trustee does not conflict with or constitute a breach of the Articles of Organization or
By-laws of the Delaware Trustee; and 


        (e)  the
Delaware Trustee is a natural person who is a resident of the State of Delaware or, if not a natural person, an entity which has its principal place of business in
the State of Delaware. 



42










  



 
 

ARTICLE XIV
  MISCELLANEOUS    
  


SECTION
14.1    NOTICES.    



        All
notices provided for in this Declaration shall be in writing, duly signed by the party giving such notice, and shall be delivered by first class mail, telecopied or sent by overnight
courier as follows: 



        (a)  if
given to the Trust, in care of the Administrative Trustees at the Trust's mailing address set forth below (or such other address as the Trust may give notice of to
the Property Trustee, the Delaware Trustee and the Holders of the Securities): 




c/o
Prudential Financial, Inc.

751 Broad Street

Newark, New Jersey 07102

Attn: Treasurer

Fax: 






with
a copy to: 





c/o
Chase Manhattan Bank USA, National Association

500 Stanton Christiana Road, Building 4, 3rd Floor

Newark, Delaware 19713

Attn: Institutional Trust Services

Fax: 





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




Chase
Manhattan Bank USA, National Association

500 Stanton Christiana Road, Building 4, 3rd Floor

Newark, Delaware 19713

Attn: Institutional Trust Services 

Fax: 






with
a copy to: 





JPMorgan
Chase Bank

450 West 33rd Street, 15th Floor

New York, New York 10001

Attn: Institutional Trust Services

Fax: 





        (c)  if
given to the Property Trustee, at its Corporate Trust Office to the attention of Institutional Trust Services (or such other address as the Property Trustee may give
notice of to the Administrative Trustees, the Delaware Trustee and the Holders of the Securities): 




JPMorgan
Chase Bank

450 West 33rd Street, 15th Floor

New York, New York 10001

Attn: Institutional Trust Services

Fax: 





43





 




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




Prudential
Financial, Inc.

751 Broad Street

Newark, New Jersey 07102

Attn: Treasurer

Fax: 





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




        All
such notices shall be deemed to have been given when received in person, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to
deliver. 


SECTION
14.2    GOVERNING LAW.    


        This
Declaration and the rights and obligations of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to
principles of conflict of laws, provided that the immunities and standard of care of the Property Trustee in connection with the administration of its trusts hereunder shall be governed by and
interpreted in accordance with the laws of the jurisdiction of its incorporation. 


SECTION
14.3    INTENTION OF THE PARTIES.    


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


SECTION
14.4    HEADINGS.    


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


SECTION
14.5    SUCCESSORS AND ASSIGNS.    


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


SECTION
14.6    PARTIAL ENFORCEABILITY.    


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


SECTION
14.7    COUNTERPARTS.    


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


44





 



SECTION
14.8    CUSIP NUMBERS.    



        The
Trust in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustees shall use "CUSIP" numbers in notices of redemption 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
Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Administrative Trustees will promptly notify the Property Trustee of any change in the "CUSIP" numbers. 



        IN
WITNESS WHEREOF, the undersigned has caused these presents to be executed as of the day and year first above written. 



	 	 	

	 	 	Richard Vaccaro, as Administrative Trustee of the Trust
	

 	
 	


	 	 	Scott D. Kaplan, as Administrative Trustee of the Trust
	

 	
 	


	 	 	Jonathan Hunt, as Administrative Trustee of the Trust
	

 	
 	

CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,

as Delaware Trustee
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title:
	

 	
 	

JPMORGAN CHASE BANK,

as Property Trustee
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title:
	

 	
 	

PRUDENTIAL FINANCIAL, INC.

as Sponsor
	

 	
 	

By:	
 	

 
	 	 	 	 	
 Name:

Title:




45






  



 
 

ANNEX I
  TERMS OF
  [            ]% TRUST PREFERRED SECURITIES
  [            ]% TRUST COMMON
SECURITIES    
  


        Pursuant to Section 7.1 of the Amended and Restated Declaration of Trust, dated as of  
[                        ] (as amended from time to time, the "Declaration"), the designation, rights,
privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the Common Securities are set out below (each capitalized term used but not defined herein has the meaning set forth in the
Declaration or, if not defined in such Declaration, as defined in the Prospectus referred to below): 


        1.    Designation
and Number. 



        (a)  Preferred
Securities. [                        
(            )] Preferred Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of [                        ]
 dollars  [($                        )] and a liquidation amount with respect to the assets of the
Trust of [$                        ]
per preferred security, are hereby designated for
the purposes of identification only as "[    ]% Trust Preferred Securities" (the "Preferred Securities"). The
Preferred Security Certificates evidencing the Preferred Securities shall be substantially in the form of Exhibit A-1 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Preferred Securities are listed. 


        (b)  Common
Securities. [                        
(            )] Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of [                        ]
 dollars  [($                        )] and a liquidation amount with respect to the assets of the
Trust of [$                        ]
per common security, are hereby designated for the
purposes of identification only as "[            ]% Trust Common Securities" (the "Common Securities"). The Common Security
Certificates evidencing the Common Securities shall be substantially in the form of Exhibit A-2 to the Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice. 




        2.    Distributions.




        (a)  Distributions
payable on each Security will be fixed at a rate per annum of [            ]%
(the "Coupon Rate") of the stated liquidation amount of [$            ] per
Security, such rate being the rate of interest payable on the Debentures to be held by the Property Trustee. Distributions in arrears beyond the first date such Distributions are payable (or would be
payable if not for any Extension Period (as defined below) or default by the Debenture Issuer on the Debentures) will bear interest thereon at the Coupon Rate compounded quarterly (to the extent
permitted by applicable law) from the relevant payment date for such Distribution. The term "Distributions" as used herein includes such cash distributions and any such interest payable unless
otherwise stated. A Distribution is payable only to the extent that payments are made in respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds
available therefor. The amount of Distributions payable for any period will be computed for any full quarterly Distribution period on the basis of a 360-day year consisting of twelve
30-day months. Distributions payable for any period shorter than a full quarterly Distribution period for which Distributions are computed will be computed on the basis of a
30-day month and, for periods of less than one month, the actual number of days elapsed during such month. 


        (b)  Distributions
on the Securities will be cumulative, will accrue from and including  [                        ]
, and will be payable quarterly in arrears, on  [                        ]
, [                        ],
[                        ] and 
[                        ] of each year,
commencing on [                        ,
            ]. When, 



I-1





 





as and if available for payment, Distributions will be made by the Property Trustee, except as otherwise described below. The Debenture Issuer has the right under the Indenture to defer payments of
interest on the Debentures by extending each interest payment period from time to time on the Debentures for a period not exceeding 20 consecutive quarterly periods (each an "Extension Period"),
during which Extension Period no interest shall be due and payable on the Debentures, provided that no Extension Period may extend beyond the date of
maturity or prepayment of the Debentures. As a consequence of the Debenture Issuer's extension of the interest payment period, Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon Rate compounded quarterly (to the extent permitted by applicable law) from the
relevant payment date for such Distribution during any such Extension Period. In the event that the Debenture Issuer exercises its right to extend the interest payment period, then (a) the
Debenture Issuer shall not declare or pay any dividend on, make any distributions with respect to, or redeem, purchase, acquire or make a liquidation payment with respect to, any of its capital stock
or make any guarantee payment with respect thereto (other than (i) repurchases, redemptions or other acquisitions of shares of capital stock of Prudential in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of employees, officers, directors or consultants, (ii) repurchases, redemptions or other acquisitions of shares of
capital stock of Prudential Companies or such subsidiary as a result of an exchange or conversion of any class or series of capital stock of Prudential for any other class or series of the capital
stock of Prudential's or such subsidiary's, (iii) the purchase of fractional interests in shares of capital stock of Prudential pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, or (iv) distributions of rights under any shareholders' rights plan adopted by Prudential or such subsidiary) and (b) the Debenture
Issuer shall not make any payment of interest on or principal of (or premium, if any, on), or repay, repurchase or redeem, any debt securities issued by the Debenture Issuer or its subsidiaries that
rank pari passu with or junior to the Debentures. The foregoing, however, will not apply to any stock dividends paid by Prudential where the dividend
stock is the same stock as that on which the dividend is being paid. Prior to the termination of any such Extension Period, the Debenture Issuer may further extend such Extension Period;  provided that
such Extension Period, together with all such previous and further extensions thereof, may not exceed 20 quarterly periods;  provided, further, that no
Extension Period may extend beyond the maturity of the Debentures. Payments
of accrued Distributions will be payable to Holders as they appear on the books and records of the Trust on the first record date after the end of the Extension Period. Upon the termination of
any Extension Period and the payment of all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. The Administrative Trustees will give notice
to each Holder of any Extension Period upon their receipt of notice thereof from the Debenture Issuer. 


        (c)  Distributions
on the Securities will be payable to the Holders thereof as they appear on the books and records of the Trust at the close of business on the relevant
record dates. While the Preferred Securities remain in book-entry only form, the relevant record dates shall be one Business Day prior to the relevant payment dates which payment dates
shall correspond to the interest payment dates on the Debentures. Subject to any applicable laws and regulations and the provisions of the Declaration, each such payment in respect of the Preferred
Securities will be made as described under the heading "[Book-Entry
Issuance]" in the prospectus supplement, dated 
[                        ] to
the Prospectus, dated [                        ] (collectively, the "Prospectus"),
of the Trust included in the Registration Statement on
Form S-3 of the Sponsor and the Trust. The relevant record dates for the Common Securities shall be the same record date as for the Preferred Securities. If the Preferred Securities
shall not continue to remain in book-entry only form, the relevant record dates for the Preferred Securities shall conform to the rules of any 



I-2





 





securities exchange on which the securities are listed and, if none, shall be selected by the Administrative Trustees, which dates shall be at least 14 days but no more than 60 days
before the relevant payment dates, which payment dates shall correspond to the interest payment dates on the Debentures. Distributions payable on any Securities that are not punctually paid on any
Distribution payment date, as a result of the Debenture Issuer having failed to make a payment under the Debentures (other than while an Extension Period shall be continuing), will cease to be payable
to the Person in whose name such Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Securities are
registered on the special record date or other specified date determined in accordance with the Indenture. If any date on which Distributions are payable on the Securities is not a Business Day, then
payment of the Distribution 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 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 such
Distribution payment date. 


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




        3.    Liquidation
Distribution Upon Dissolution. 


        In
the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Trust, the Holders of the Securities on the date of the liquidation, dissolution or
winding-up, as the case may be, will be entitled to receive out of the assets of the Trust available for distribution to Holders of Securities after satisfaction of liabilities of
creditors, distributions in an amount equal to the aggregate of the stated liquidation amount of [$             ]
 per Security plus accrued and unpaid Distributions thereon to
the date of payment (such amount being the "Liquidation Distribution"), unless, in connection with such liquidation, dissolution or winding-up, Debentures in an aggregate principal amount
equal to the aggregate stated liquidation amount of, with an interest rate equal to the Coupon Rate, and bearing accrued and unpaid interest in an amount equal to the accrued and unpaid Distributions
on, such Securities outstanding at such time, have been distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities. 


        If,
upon any such liquidation, dissolution, or winding-up the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis, as such term is defined in Section 8 below. 


        4.    Redemption
and Distribution. 



        (a)  Upon
the repayment of the Debentures in whole or in part, whether at maturity or upon redemption (either at the option of the Debenture Issuer or pursuant to a Special
Event, as described below), the proceeds from such repayment or payment shall be simultaneously applied to redeem Securities having an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so repaid or redeemed at a redemption price equal to the proceeds from such repayment or redemption of the Debentures (the "Redemption Price"). Holders shall be given not less
than 30 nor more than 60 days notice of such redemption. 



        (b)  If
fewer than all the outstanding Securities are to be so redeemed, the Securities will be redeemed Pro Rata and the Preferred Securities to be redeemed will be as
described in Section 4(h)(ii) below. 


        (c)  The
Debenture Issuer shall have the right, at any time, to dissolve the Trust and, after satisfaction of creditors, cause Debentures held by the Property Trustee, having
an aggregate 



I-3





 





principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the Coupon Rate, and with accrued and unpaid interest equal to accrued and unpaid
Distributions on, the Securities outstanding at such time, to be distributed to the Holders of the Securities in liquidation of such Holders' interests in the Trust on a Pro Rata basis. 


        (d)  The
Debenture Issuer shall have the right (subject to the conditions set forth in the Indenture) to elect to prepay the Debentures, in whole or in part, at any time on
or after [                        ] (the "Initial Optional Redemption Date"), and,
simultaneous with such prepayment, to cause a Like
Amount (as defined below) of the Debentures to be redeemed by the Trust at the Optional Redemption Price on a Pro Rata basis. 


        "Like
Amount" means, with respect to a redemption of the Securities, Securities having a stated liquidation amount equal to the principal amount of Debentures to be paid in accordance
with their terms. 


        "Optional
Redemption Price" means an amount equal to 100% of the stated liquidation amount of the Securities to be redeemed by the Trust plus accumulated and unpaid Distributions
thereon, if any to the date of such redemption. 


        (e)  The
Debenture Issuer shall have the right, upon not less than 30 nor more than 60 days notice, to redeem the Debentures, in whole but not in part, for cash within
90 days following the occurrence of a Tax Event or an Investment Company Event (each as defined below, and each a "Special Event"), and, following such redemption, Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so redeemed shall be redeemed by the Trust at the Redemption Price on a Pro Rata basis. 


        "Tax
Event" means that the Administrative Trustees shall have received an opinion of a nationally recognized independent tax counsel experienced in such matters (a "Tax Event Opinion")
to the effect that, as a result of (a) 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 (b) as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of the original issuance of the Securities there is more than an insubstantial
risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or, within 90 days of the date of such opinion, will be subject to more than a de minimis amount of other taxes, duties or other governmental charges, or
(iii) interest payable to the Trust on the Debentures is not or will not, within 90 days of the date of such opinion, be deductible, in whole or in part, by the Debenture Issuer for
United States federal income tax purposes. 


        "Investment
Company Event" means that the Administrative Trustees shall have received an opinion of a nationally recognized independent counsel experienced in practice under the
Investment Company Act (an "Investment Company Event Opinion") to the effect that, as a result of (a) an amendment to or a change (including any announced prospective change) in law or
regulation of the United States or any rules, guidelines or policies of any applicable regulatory authority for the Debenture Issuer, or (b) as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of the
original issuance of the Securities (a "Change in 1940 Act Law"), there is a more than an insubstantial risk that the Trust is or will be considered, within 90 days of the date of such opinion,
an Investment Company which is required to be registered under the Investment Company Act. 



I-4





 




        On
and from the date fixed by the Administrative Trustees for any distribution of Debentures and dissolution of the Trust: (i) the Securities will no longer be deemed to be
outstanding, (ii) DTC or its nominee (or any successor Clearing Agency or its nominee), as the record Holder of the Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution and (iii) any certificates representing Securities, except for certificates representing Preferred Securities
held by DTC or its nominee (or any successor Clearing Agency or its nominee), will be deemed to represent beneficial interests in the Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid Distributions on such Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or reissue. 



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


        (g)  If
the Debentures are distributed to Holders of the Securities, pursuant to the terms of the Indenture, the Debenture Issuer will use its best efforts to have the
Debentures listed on the New York Stock Exchange or on such other exchange as the Preferred Securities were listed immediately prior to the distribution of the Debentures. 


        (h)  Redemption
or Distribution procedures will be as follows: 



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


        (ii)  In
the event that fewer than all the outstanding Securities are to be redeemed, the Securities to be redeemed shall be redeemed Pro Rata from each Holder of Preferred
Securities, it being understood that, in respect of Preferred Securities registered in the name of and held of record by DTC or its nominee (or any successor Clearing Agency or its nominee) or any
nominee, the distribution of the proceeds of such redemption will be made to each Clearing Agency Participant (or Person on whose
behalf such nominee holds such securities) in accordance with the procedures applied by such agency or nominee. 




I-5













  




        (iii)  If
Securities are to be redeemed and the Trust gives a Redemption/Distribution Notice, which notice may only be issued if the Debentures are redeemed as set out in
this Section 4 (which notice will be irrevocable), then (A) while the Preferred Securities are in book-entry only form, with respect to the Preferred Securities, by 12:00
noon, New York City time, on the redemption date, provided, that the Debenture Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of
the Debentures, the Property Trustee will deposit irrevocably with DTC or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the applicable Redemption Price with respect
to the Preferred Securities and will give DTC (or any successor Clearing Agency) irrevocable instructions and authority to pay the Redemption Price to the Preferred Security Beneficial Owners, and
(B) with respect to Preferred Securities issued in definitive form and Common Securities, provided that the Debenture Issuer has paid the
Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the Debentures, the Property Trustee will pay the relevant Redemption Price to the Holders of such
Securities by check mailed to the address of the relevant Holder appearing on the books and records of the Trust on the redemption date. If a Redemption/Distribution Notice shall have been given and
funds deposited as required, if applicable, then immediately prior to the close of business on the date of such deposit, or on the redemption date, as applicable, Distributions will cease to accrue on
the Securities so called for redemption and all rights of Holders of such Securities so called for redemption will cease, except the right of the Holders of such Securities to receive the Redemption
Price, but without interest on such Redemption Price. Neither the Administrative Trustees nor the Trust shall be required to register or cause to be registered the transfer of any Securities that have
been so called for redemption. If any date fixed for redemption of Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of any such delay) except that, if such Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect as if made on such date fixed for redemption. If payment of the Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by the Property Trustee or by the Sponsor as guarantor pursuant to the Preferred Securities Guarantee, Distributions on such Securities will continue
to accrue from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the
Redemption Price. 


        (iv)  Redemption/Distribution
Notices shall be sent by the Administrative Trustees on behalf of the Trust to (A) in respect of the Preferred Securities, DTC or its
nominee (or any successor Clearing Agency or its nominee) if the Global Certificates have been issued or, if Definitive Preferred Security Certificates have been issued, to the Holder thereof, and
(B) in respect of the Common Securities to the Holder thereof. 


        (v)  Subject
to the foregoing and applicable law (including, without limitation, United States federal securities laws), the Debenture Issuer or its affiliates may at any
time and from time to time purchase outstanding Preferred Securities by tender, in the open market or by private agreement. 





        5.    Voting
Rights—Preferred Securities. 



        (a)  Except
as provided under Sections 5(b) and 7 and as otherwise required by law and the Declaration, the Holders of the Preferred Securities will have no voting rights. 


        (b)  Subject
to the requirements set forth in this paragraph, the Holders of a Majority in aggregate liquidation amount of the Preferred Securities, voting separately as a
class, may direct 



I-6





 





the time, method, and place of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of any trust or power conferred upon the Property Trustee under the
Declaration, including the right to direct the Property Trustee, as holder of the Debentures, to (i) direct the time, method and place of conducting any proceeding for any remedy available to
the Debenture Trustee, or exercise any trust or power conferred on the Debenture Trustee with respect to the Debentures, (ii) waive any past Event of Default that is waivable under the
Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Debentures shall be due and payable or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures where such consent shall be required, provided, however,
that, where a consent or action under the Indenture would require the consent or act of the Holders of greater than a majority in principal amount of Debentures affected thereby (a "Super Majority"),
the Property Trustee may only give such consent or take such action at the written direction of the Holders of at least the proportion in liquidation amount of the Preferred Securities which the
relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Except with respect to directing the time, method and place of conducting a proceeding for a remedy available to the Property Trustee, the Property Trustee, as
holder of the Debentures, shall not take any of the actions described in clauses (i), (ii), (iii) or (iv) above unless the Property Trustee has obtained, at the expense of the Holder of
Common Securities, an opinion of a nationally recognized independent tax counsel experienced in such matters to the effect that as a result of such action, the Trust will not fail to be classified as
a grantor trust for United States federal income tax purposes. If the Property Trustee fails to enforce its rights under the Declaration, (other than by reason of the failure to obtain the opinion set
forth in the previous sentence) any Holder of Preferred Securities may, to the fullest extent permitted by law, directly institute a legal proceeding against the Debenture Issuer to enforce the
Property Trustee's rights under the Debentures without first instituting a legal proceeding against the Property Trustee or any other Person. If a Declaration Event of Default has occurred and is
continuing and such event is attributable to the failure of the Debenture Issuer to pay interest or principal on the Debentures on the date such interest or principal is otherwise payable (or in the
case of redemption, on the redemption date), then a Holder of Preferred Securities may also directly institute a proceeding for enforcement of payment to such Holder (a "Direct Action") of the
principal of or interest on the Debentures having a principal amount equal to the aggregate liquidation amount of the Preferred Securities of such Holder on or after the respective due date specified
in the Debentures without first (i) directing the Property Trustee to enforce the terms of the Debentures or (ii) instituting a legal proceeding directly against the Debenture Issuer to
enforce the Property Trustee's rights under the
Debentures. Except as provided in the preceding sentence, the Holders of Preferred Securities will not be able to exercise directly any other remedy available to the Holders of the Debentures. In
connection with such Direct Action, Prudential will be subrogated to the rights of such Holder of Preferred Securities under the Declaration to the extent of any payment made by Prudential to such
Holder of Preferred Securities in such Direct Action. 


        (c)  Any
required approval or direction of Holders of Preferred Securities may be given at a separate meeting of Holders of Preferred Securities convened for such purpose, at
a meeting of all of the Holders of Securities in the Trust or pursuant to written consent. The Administrative Trustees or, at their election, the Property Trustee, will cause a notice of any meeting
at which Holders of Preferred Securities are entitled to vote to be mailed to each Holder of record of Preferred Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of such 



I-7





 





matter upon which written consent is sought and (iii) instructions for the delivery of proxies or consents. 



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


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





        6.    Voting
Rights—Common Securities. 



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


        (b)  The
Holders of the Common Securities are entitled, in accordance with Article V of the Declaration, to vote to appoint, remove or replace any Trustee or to
increase or decrease the number of Trustees. 


        (c)  Subject
to Section 2.6 of the Declaration and only after the Event of Default with respect to the Preferred Securities has been cured, waived, or otherwise
eliminated and subject to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in aggregate liquidation amount of the Common Securities, voting separately as a
class, may direct the time, method, and place
of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of any trust or power conferred upon the Property Trustee under the Declaration, including
(i) directing the time, method, and place of conducting any proceeding for any remedy available to the Debenture Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waiving any past default and its consequences that is waivable under the Indenture, or (iii) exercising any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable, provided that, where a consent or action under the Indenture would require the
consent or act of Super Majority, the Property Trustee may only give such consent or take such action at the written direction of the Holders of at least the proportion in liquidation amount of the
Common Securities which the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding. Pursuant to this Section 6(c), the Property Trustee shall not
revoke any action previously authorized or approved by a vote of the Holders of the Preferred Securities. Other than with respect to directing the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or the Debenture Trustee as set forth above, the Property Trustee shall not take any action in accordance with the directions of the Holders of the
Common Securities under this paragraph unless the Property Trustee has obtained, at the expense of the Holder of Common Securities, an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than a grantor trust on account of such action. If the Property Trustee fails to enforce its rights under the Declaration,
any Holder of Common Securities may institute a legal proceeding directly against any Person to enforce the Property Trustee's rights under the Declaration without first instituting a legal proceeding
against the Property Trustee or any other Person. 


        Any
approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders
of Securities in the Trust or pursuant to written consent. The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote to be mailed to
each Holder of record of Common Securities. Each such notice will include a statement 



I-8





 





setting forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote and
(iii) instructions for the delivery of proxies. 


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




        7.    Amendments
to Declaration and Indenture. 



        (a)  In
addition to any requirements under Section 12.1 of the Declaration, if any proposed amendment to the Declaration provides for, or the Administrative Trustees
otherwise propose to effect, (i) any action that would adversely affect the powers, preferences or special rights of the Securities, whether by way of amendment to the Declaration or otherwise,
or (ii) the dissolution, winding-up or termination of the Trust, other than as described in Section 8.1 of the Declaration, then the Holders of outstanding Securities as a
class, will be entitled to vote on such amendment or proposal (but not on any other
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 Securities, voting together as
a single class; provided, however, if any amendment or proposal referred to in clause (i) above
would adversely affect only the Preferred Securities or only the Common Securities, then only the affected class will be entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of a Majority in liquidation amount of such class of Securities. 


        (b)  In
the event the consent of the Property Trustee as the holder of the Debentures is required under the Indenture with respect to any amendment, modification or
termination on the Indenture or the Debentures, the Property Trustee shall request the written direction of the Holders of the Securities with respect to such amendment, modification or termination
and shall vote with respect to such amendment, modification or termination as directed by a Majority in liquidation amount of the Securities voting together as a single class;  provided, however, that where a consent under the Indenture would require the consent of the holders of
greater than a majority in aggregate principal amount of the Debentures (a "Super Majority", as defined in Section 5(b)), the Property Trustee may only give such consent at the direction of the
Holders of at least the proportion in liquidation amount of the Securities which the relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding;  provided,
further, that the Property Trustee shall not take any action in accordance with the directions
of the Holders of the Securities under this Section 7(b) unless the Property Trustee has obtained, at the expense of the Holder of Common Securities, an opinion of tax counsel to the effect
that for the purposes of United States federal income tax the Trust will not be classified as other than a grantor trust on account of such action. 




        8.    Pro
Rata. 


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


I-9





 



        9.    Ranking. 


        The
Preferred Securities rank pari passu and payment thereon shall be made Pro Rata with the Common Securities except that, where an Event
of Default occurs and is continuing under the Indenture in respect of the Debentures held by the Property Trustee, the rights of Holders of the Common Securities to payment in respect of Distributions
and payments upon liquidation, redemption and otherwise are subordinated to the rights to payment of the Holders of the Preferred Securities. 


        10.  Listing. 


        The
Administrative Trustees shall use their reasonable best efforts to cause the Preferred Securities to be listed on the New York Stock Exchange, Inc. 


        11.  Acceptance
of Securities Guarantee and Indenture. 


        Each
Holder of Preferred Securities and Common Securities, by the acceptance thereof, agrees to the provisions of the Preferred Securities Guarantee, including the subordination
provisions therein and to the provisions of the Indenture. 


        12.  No
Preemptive Rights. 


        The
Holders of the Securities shall have no preemptive or similar rights to subscribe for any additional securities. 


        13.  Miscellaneous.



        These
terms constitute a part of the Declaration. 


        The
Sponsor will provide a copy of any one or more of the Declaration, the Preferred Securities Guarantee and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business. 


I-10








  



 
 

EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE    
  


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


        UNLESS
THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.] 




Certificate
Number                         

Number of Preferred Securities                          



CUSIP
No.                          


Certificate
Evidencing Preferred Securities of 


PRUDENTIAL
FINANCIAL CAPITAL TRUST II 




        [            ]% Trust Preferred Securities (Liquidation Amount  [$            ] per Preferred Security) 




        PRUDENTIAL
FINANCIAL CAPITAL TRUST II, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Cede & Co. (the "Holder") is the
registered owner of [                        ] preferred securities of the Trust
representing preferred undivided beneficial interests in
the assets of the Trust designated the [            ]% Trust Preferred Securities (the "Preferred Securities"). The Preferred
Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and provisions of the Preferred Securities are set forth in, and this certificate and the Preferred Securities represented
hereby are issued and shall in all respects be subject to, the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of  
[                        ] as the same may be amended from time to time (the "Declaration"), including the
designation of the terms of
the Preferred Securities as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the Declaration. The Holder is entitled to the benefits of
the Preferred Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the Declaration, the Preferred Securities Guarantee and the Indenture to a Holder without charge
upon written request to the Sponsor at its principal place of business. 


A1-1





 

        The
Holder of this certificate, by accepting this certificate, is deemed to have (i) agreed to the terms of the Indenture and the Debentures, including that the Debentures are
subordinate and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) and (ii) agreed to the terms of the Preferred Securities Guarantee, including that the
Preferred Securities Guarantee is [subordinate] in right of payment to all
Senior Indebtedness (as defined in the Indenture) of Prudential Financial, Inc. 


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


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


        IN
WITNESS WHEREOF, the Trust has executed this certificate this [            ] day of  
[                        ]. 



	 	PRUDENTIAL FINANCIAL CAPITAL TRUST II
	



	

 
	 	    
 By:

Title: Administrative Trustee




A1-2





 
 
 

PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION    
  


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



	 	 	JPMORGAN CHASE BANK,

as Property Trustee
	



	
 	

 	

 
	 	 	By:	    
 Authorized Officer




A1-3





 
 
 

[FORM OF REVERSE OF SECURITY]    
  


        Distributions payable on each Preferred Security will be fixed at a rate per annum of  
[                        ]% (the "Coupon Rate") of the stated liquidation amount of
[$                        ] per
Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee. Distributions in arrears will bear interest thereon at the Coupon Rate compounded quarterly (to the extent permitted by
applicable
law). The term "Distributions" as used herein includes such cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefor. The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year consisting of twelve 30-day months. Distributions payable for any period of less than a full quarterly
period will be computed on the basis of a 30-day month and, for periods of less than one month, the actual number of elapsed days per 30-day month. 


        Distributions
on the Preferred Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: [                        ],  [                        ], 
[            ] and
[            ] of each year, commencing on  
[              ], except as otherwise described below. The Debenture Issuer has the right under the Indenture to defer payments
of interest by extending the interest payment period from time to time on the Debentures for a period not exceeding 20 quarterly periods (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the termination of any such Extension Period, the Debenture Issuer may further extend such Extension Period;  provided that such
Extension Period together with all such previous and further extensions thereof may not exceed 20 quarterly periods or extend beyond
the maturity (whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise) of the Debentures under the Indenture. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the first record date after the end of the Extension Period. Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. 


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


A1-4





 
 
 

ASSIGNMENT    
  


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



	    

	

    

	

  


	

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

    

	

    

	

 


	

(Insert address and zip code of assignee) and irrevocably appoints
	

    

	

    






	  


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





	

Date:	

    
	
 	

 
	

Signature:	

    
	
 	

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




A1-5






  



 
 

EXHIBIT A-2    
    FORM OF COMMON SECURITY CERTIFICATE    
  


TRANSFER
OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE DECLARATION REFERRED TO BELOW 


Certificate
Number              


Number
of Common Securities              


Certificate
Evidencing Common Securities of              



PRUDENTIAL
FINANCIAL CAPITAL TRUST II 


[            ]% Trust Common Securities (Liquidation Amount [$
            ] per Common Security) 


        PRUDENTIAL
FINANCIAL CAPITAL TRUST II, a statutory trust created under the laws of the State of Delaware (the "Trust"), hereby certifies that Prudential Financial, Inc., a New
Jersey corporation, (the "Holder") is the registered owner of [            ] common securities of the Trust representing
undivided beneficial interests in the assets of the Trust designated the [            ]% Trust Common Securities (the "Common
Securities"). The Common Securities are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper
form for transfer and satisfaction of the other conditions set forth in the Declaration (as defined below), including, without limitation, Section 9.1 thereof. The designation, rights,
privileges,
restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of [                        ], as the
same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Common Securities as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the meaning given them in the
Declaration. The Sponsor will provide a copy of the Declaration and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business. 


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



        The
Holder of this certificate, by accepting this certificate, is deemed to have agreed to the terms of the Indenture and the Debentures, including that the Debentures are subordinate
and junior in right of payment to all Senior Indebtedness (as defined in the Indenture) as and to the extent provided in the Indenture. 


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


        IN
WITNESS WHEREOF, the Trust has executed this certificate this [            ] day of  
[                        ]. 



	 	 	PRUDENTIAL FINANCIAL CAPITAL TRUST II
	 	 	    
	 	 	    
	 	 	    
	 	 	
 By:

Title: Administrative Trustee




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[FORM OF REVERSE OF SECURITY]  


        Distributions payable on each Common Security will be fixed at a rate per annum of  [            ]
% (the "Coupon Rate") of the stated liquidation amount of  [$                        ] per Common Security, such rate being the rate of
interest
payable on the Debentures to be held by the Property Trustee. Distributions in arrears will bear interest thereon at the Coupon Rate compounded quarterly (to the extent permitted by applicable law).
The term "Distributions" as used herein includes such cash distributions and any such interest payable unless otherwise stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the Property Trustee has funds available therefor. The amount of Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of a 360-day year consisting of twelve 30-day months. Distributions payable for any period of less than a full quarterly period
will be computed on the basis of a 30-day month and, for periods of less than one month, the actual number of elapsed days per 30-day month. 



        Distributions
on the Common Securities will be cumulative, will accrue from the date of original issuance and will be payable quarterly in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures: [                        ],  [                        ], 
[            ] and  [            ] of each year, commencing
on  [            ], except as otherwise described below. The Debenture Issuer has the right under the Indenture to defer payments
of interest by extending the interest payment period from time to time on the Debentures for a period not exceeding 20 quarterly periods (each an "Extension Period") and, as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral, quarterly Distributions will continue to accrue with interest thereon (to the extent permitted by applicable law) at the Coupon
Rate compounded quarterly during any such Extension Period. Prior to the termination of any such Extension Period, the Debenture Issuer may further extend such Extension Period;  provided that such
Extension Period together with all such previous and further extensions thereof may not exceed 20 quarterly periods or extend beyond
the maturity (whether at the stated maturity or by declaration of acceleration, call for redemption or otherwise) of the Debentures under the Indenture. Payments of accrued Distributions will be
payable to Holders as they appear on the books and records of the Trust on the first record date after the end of the Extension Period. Upon the termination of any Extension Period and the payment of
all amounts then due, the Debenture Issuer may commence a new Extension Period, subject to the above requirements. 


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


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ASSIGNMENT  


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



	    

	

    

	

  


	

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

    

	

    

	

 


	

(Insert address and zip code of assignee) and irrevocably appoints
	

    

	

    






	  


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





	

Date:	

    
	
 	

 
	

Signature:	

    
	
 	

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




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QuickLinks



Exhibit 4.15



TABLE OF CONTENTS


AMENDED AND RESTATED DECLARATION OF TRUST OF PRUDENTIAL FINANCIAL CAPITAL TRUST II

ARTICLE I INTERPRETATIONS AND DEFINITIONS

ARTICLE II TRUST INDENTURE ACT



ARTICLE III ORGANIZATION


ARTICLE IV SPONSOR

ARTICLE V TRUSTEES


ARTICLE VI DISTRIBUTIONS

ARTICLE VII ISSUANCE OF SECURITIES

ARTICLE VIII TERMINATION OF TRUST



ARTICLE IX TRANSFER OF INTERESTS

ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS


ARTICLE XI ACCOUNTING

ARTICLE XII AMENDMENTS AND MEETINGS

ARTICLE XIII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE



ARTICLE XIV MISCELLANEOUS


ANNEX I TERMS OF [ ]% TRUST PREFERRED SECURITIES [ ]% TRUST COMMON SECURITIES


EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE

PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION

[FORM OF REVERSE OF SECURITY]

ASSIGNMENT


EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE