Exhibit 4.4


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


among


 


TCF FINANCIAL CORPORATION, as Depositor,


 


WILMINGTON TRUST COMPANY,


 


as Property Trustee,


 


WILMINGTON TRUST COMPANY,


 


as Delaware Trustee,


 


THE ADMINISTRATIVE TRUSTEES NAMED HEREIN,


 


and


 


THE SEVERAL HOLDERS (AS DEFINED HEREIN)


 


Dated as of August 19, 2008


 


TCF CAPITAL I


 

















 


TCF CAPITAL I


 


Certain Sections of this Trust Agreement
relating to


Sections 310 through 318 of the


Trust Indenture Act of 1939:


 


	
   Trust Indenture 

   Act Section

   	
    

   	
   Trust Agreement

   Section

   
	
  (§) 310 

  	
  (a)(1)

  	
   

  	
   

  	
  8.7(a)

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  8.7(a)

  
	
   

  	
  (a)(3)

  	
   

  	
   

  	
  8.9

  
	
   

  	
  (a)(4)

  	
   

  	
   

  	
  2.7(a)(ii)

  
	
   

  	
  (a)(5)

  	
   

  	
   

  	
  10.11(a)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  8.8

  
	
  (§) 311 

  	
  (a)

  	
   

  	
   

  	
  8.13

  
	
   

  	
  (b)

  	
   

  	
   

  	
  8.13

  
	
   

  	
  (c)

  	
   

  	
   

  	
  Not Applicable

  
	
  (§) 312 

  	
  (a)

  	
   

  	
   

  	
  5.7

  
	
   

  	
  (b)

  	
   

  	
   

  	
  5.7

  
	
   

  	
  (c)

  	
   

  	
   

  	
  5.7

  
	
  (§) 313 

  	
  (a)

  	
   

  	
   

  	
  8.14(a)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  8.14(a)

  
	
   

  	
  (c)

  	
   

  	
   

  	
  10.9

  
	
   

  	
  (d)

  	
   

  	
   

  	
  8.14(b)

  
	
  (§) 314 

  	
  (a)

  	
   

  	
   

  	
  8.15

  
	
   

  	
  (b)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (c)(1)

  	
   

  	
   

  	
  8.16

  
	
   

  	
  (c)(2)

  	
   

  	
   

  	
  8.16

  
	
   

  	
  (c)(3)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (d)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (e)

  	
   

  	
   

  	
  1.1,8.16

  
	
  (§) 315 

  	
  (a)

  	
   

  	
   

  	
  8.1(a), 8.3(a)

  
	
   

  	
  (b)

  	
   

  	
   

  	
  8.2,10.9

  
	
   

  	
  (c)

  	
   

  	
   

  	
  8.1(a)

  
	
   

  	
  (d)

  	
   

  	
   

  	
  8.1,8.3

  
	
   

  	
  (e)

  	
   

  	
   

  	
  Not Applicable

  
	
  (§) 316 

  	
  (a)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(1)(A)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(1)(B)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
   

  	
  5.14

  
	
   

  	
  (c)

  	
   

  	
   

  	
  6.7

  
	
  (§) 317 

  	
  (a)(1)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (a)(2)

  	
   

  	
   

  	
  Not Applicable

  
	
   

  	
  (b)

  	
   

  	
   

  	
  5.9

  
	
  (§) 318 

  	
  (a)

  	
   

  	
   

  	
  10.11

  



 


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


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINED TERMS

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II
  CONTINUATION OF THE TRUST

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 2.1

  	
  Name

  	
  10

  
	
  Section 2.2

  	
  Office of the Delaware Trustee;
  Principal Place of Business

  	
  10

  
	
  Section 2.3

  	
  Initial Contribution of Trust
  Property; Organizational Expenses

  	
  10

  
	
  Section 2.4

  	
  Issuance of the Capital Securities

  	
  10

  
	
  Section 2.5

  	
  Issuance of the Common Securities;
  Subscription and Purchase of Debentures

  	
  11

  
	
  Section 2.6

  	
  Declaration of Trust

  	
  12

  
	
  Section 2.7

  	
  Authorization to Enter into Certain
  Transactions

  	
  12

  
	
  Section 2.8

  	
  Assets of Trust

  	
  15

  
	
  Section 2.9

  	
  Title to Trust Property

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE III PAYMENT ACCOUNT

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 3.1

  	
  Payment Account

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV DISTRIBUTIONS; REDEMPTION

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 4.1

  	
  Distributions

  	
  16

  
	
  Section 4.2

  	
  Redemption

  	
  17

  
	
  Section 4.3

  	
  Subordination of Common Securities

  	
  19

  
	
  Section 4.4

  	
  Payment Procedures

  	
  20

  
	
  Section 4.5

  	
  Tax Returns and Reports

  	
  20

  
	
  Section 4.6

  	
  Payment of Expenses of the Trust

  	
  20

  
	
  Section 4.7

  	
  Payments under Indenture or
  Pursuant to Direct Actions

  	
  20

  



 


i

















 


	
  ARTICLE V
  TRUST SECURITIES CERTIFICATES

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 5.1

  	
  Initial Ownership

  	
  21

  
	
  Section 5.2

  	
  The Trust Securities Certificates

  	
  21

  
	
  Section 5.3

  	
  Execution and Delivery of Trust
  Securities Certificates

  	
  21

  
	
  Section 5.4

  	
  Registration of Transfer and
  Exchange of Capital Securities Certificate

  	
  21

  
	
  Section 5.5

  	
  Mutilated, Destroyed, Lost or
  Stolen Trust Securities Certificates

  	
  22

  
	
  Section 5.6

  	
  Persons Deemed Securityholders

  	
  23

  
	
  Section 5.7

  	
  Access to List of Securityholders’
  Names and Addresses

  	
  23

  
	
  Section 5.8

  	
  Maintenance of Office or Agency

  	
  23

  
	
  Section 5.9

  	
  Appointment of Paying Agent

  	
  23

  
	
  Section 5.10

  	
  Ownership of Common Securities by
  Depositor

  	
  24

  
	
  Section 5.11

  	
  Book-Entry Capital Securities
  Certificates; Common Securities Certificate

  	
  24

  
	
  Section 5.12

  	
  Notices to Clearing Agency

  	
  25

  
	
  Section 5.13

  	
  Definitive Capital Securities Certificates

  	
  25

  
	
  Section 5.14

  	
  Rights of Securityholders

  	
  26

  
	
  Section 5.15

  	
  CUSIP Numbers

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  ACTS OF SECURITYHOLDERS; MEETINGS; VOTING

  	
  29

  
	
   

  	
   

  	
   

  
	
  Section 6.1

  	
  Limitations on Voting Rights

  	
  29

  
	
  Section 6.2

  	
  Notice of Meetings

  	
  30

  
	
  Section 6.3

  	
  Meetings of Capital Securityholders

  	
  30

  
	
  Section 6.4

  	
  Voting Rights

  	
  30

  
	
  Section 6.5

  	
  Proxies, etc.

  	
  30

  
	
  Section 6.6

  	
  Securityholder Action by Written
  Consent

  	
  31

  
	
  Section 6.7

  	
  Record Date for Voting and Other
  Purposes

  	
  31

  
	
  Section 6.8

  	
  Acts of Securityholders

  	
  31

  
	
  Section 6.9

  	
  Inspection of Records

  	
  32

  



 


ii

















 


	
  ARTICLE VII REPRESENTATIONS AND WARRANTIES

  	
  33

  
	
   

  	
   

  	
   

  
	
  Section 7.1

  	
  Representations and Warranties of
  the Property Trustee and the Delaware Trustee

  	
  33

  
	
  Section 7.2

  	
  Representations and Warranties of
  Depositor

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII THE TRUSTEES

  	
  34

  
	
   

  	
   

  	
   

  
	
  Section 8.1

  	
  Certain Duties and Responsibilities

  	
  34

  
	
  Section 8.2

  	
  Certain Notices

  	
  36

  
	
  Section 8.3

  	
  Certain Rights of Property Trustee

  	
  36

  
	
  Section 8.4

  	
  Not Responsible for Recitals or
  Issuance of Securities

  	
  38

  
	
  Section 8.5

  	
  May Hold Securities

  	
  38

  
	
  Section 8.6

  	
  Compensation; Indemnity; Fees

  	
  38

  
	
  Section 8.7

  	
  Corporate Property Trustee
  Required; Eligibility of Trustees

  	
  40

  
	
  Section 8.8

  	
  Conflicting Interests

  	
  40

  
	
  Section 8.9

  	
  Co-Trustees and Separate Trustee

  	
  40

  
	
  Section 8.10

  	
  Resignation and Removal;
  Appointment of Successor

  	
  42

  
	
  Section 8.11

  	
  Acceptance of Appointment by
  Successor

  	
  43

  
	
  Section 8.12

  	
  Merger, Conversion, Consolidation
  or Succession to Business

  	
  44

  
	
  Section 8.13

  	
  Preferential Collection of Claims
  Against Depositor or Trust

  	
  44

  
	
  Section 8.14

  	
  Reports by Property Trustee

  	
  45

  
	
  Section 8.15

  	
  Reports to the Property Trustee

  	
  45

  
	
  Section 8.16

  	
  Evidence of Compliance with
  Conditions Precedent

  	
  45

  
	
  Section 8.17

  	
  Number of Trustees

  	
  46

  
	
  Section 8.18

  	
  Delegation of Power

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
  TERMINATION, LIQUIDATION AND MERGER

  	
  46

  
	
   

  	
   

  	
   

  
	
  Section 9.1

  	
  Termination Upon Expiration Date

  	
  46

  
	
  Section 9.2

  	
  Early Termination

  	
  47

  
	
  Section 9.3

  	
  Termination

  	
  47

  
	
  Section 9.4

  	
  Liquidation

  	
  47

  
	
  Section 9.5

  	
  Mergers, Consolidations,
  Amalgamations or Replacements of the Trust

  	
  49

  



 


iii

















 


	
  ARTICLE X
  MISCELLANEOUS PROVISIONS

  	
  50

  
	
   

  	
   

  	
   

  
	
  Section 10.1

  	
  Limitation of Rights of
  Securityholders

  	
  50

  
	
  Section 10.2

  	
  Liability of the Common
  Securityholder

  	
  50

  
	
  Section 10.3

  	
  Amendment

  	
  50

  
	
  Section 10.4

  	
  Separability

  	
  51

  
	
  Section 10.5

  	
  Governing Law

  	
  52

  
	
  Section 10.6

  	
  Payments Due on Non-Business Day

  	
  52

  
	
  Section 10.7

  	
  Successors

  	
  52

  
	
  Section 10.8

  	
  Headings

  	
  52

  
	
  Section 10.9

  	
  Reports, Notices and Demands

  	
  52

  
	
  Section 10.10

  	
  Agreement Not to Petition

  	
  53

  
	
  Section 10.11

  	
  Trust Indenture Act; Conflict with
  Trust Indenture Act

  	
  53

  
	
  Section 10.12

  	
  Acceptance of Terms of Trust
  Agreement, Guarantee and Indenture

  	
  54

  
	
  Section 10.13

  	
  Holders are Parties

  	
  54

  
	
  Section 10.14

  	
  Treatment of Trust as Grantor Trust
  and Debentures as Debt for Federal Income Tax Purposes

  	
  54

  
	
  Section 10.15

  	
  Counterparts

  	
  54

  



 


iv

















 


AMENDED
AND RESTATED TRUST AGREEMENT, dated as of August 19, 2008, among (i) TCF
Financial Corporation, a Delaware corporation (including any successors or
assigns, the “Depositor”), (ii) Wilmington Trust Company, a Delaware
banking corporation, as property trustee (in such capacity, the “Property
Trustee” and, in its separate corporate capacity and not in its capacity as Property
Trustee, the “Bank”), (iii) Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (the “Delaware Trustee”), (iv) James S.
Broucek, an individual, and Christy A. Powers, an individual, each of whose
address is c/o TCF Financial Corporation, 200 Lake Street East, Wayzata,
Minnesota 55391-1693 (each, an “Administrative Trustee,” and, collectively, the
“Administrative Trustees”) (the Property Trustee, the Delaware Trustee and the
Administrative Trustees, collectively, the “Trustees”) and (v) the several
Holders, as hereinafter defined.


 


W I T N E S S E T H


 


WHEREAS,
the Depositor and certain of the trustees have heretofore duly declared and
established a statutory trust pursuant to the Delaware Statutory Trust Act by
entering into that certain Trust Agreement, dated as of July 24, 2008 (the
“Original Trust Agreement”), and by the execution and filing with the Secretary
of State of the State of Delaware of the Certificate of Trust, filed on July 24,
2008 (the “Certificate of Trust”), each attached as Exhibit A;


 


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


 


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


 


ARTICLE
I


 


DEFINED TERMS


 


Section 1.1        Definitions.


 


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


 


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


 





















 


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


 


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


 


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


 


“Act” has the meaning specified in Section 6.8.


 


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


 


“Additional Interest” has the meaning
specified in the Supplemental Indenture.


 


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


 


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


 


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


 


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


 


(a)        the
entry of a decree or order for relief in respect to such Person by a court
having jurisdiction in the premises in an involuntary case under any applicable
bankruptcy, insolvency or reorganization law now or hereafter in effect of the
United States of America or any political subdivision thereof, and such decree
or order shall have continued unstayed and in effect for a period of 60
consecutive days; or


 


(b)        the
commencement by such Person of a voluntary case under any applicable
bankruptcy, insolvency or reorganization law now or hereafter in effect of the
United States of America or a political subdivision thereof, or consent to the
entry of an order for relief in an involuntary case under any such law.


 


2

















 


“Bankruptcy Laws” has the meaning specified in Section 10.10.


 


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


 


“Book-Entry Capital Securities Certificates” means a
beneficial interest in the Capital Securities Certificates, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.


 


“Business Day” means a day other than a Saturday or Sunday or
other day on which banking institutions in The City of New York are authorized
or required by law or executive order to remain closed, or a day on which the
Corporate Trust Office of the Property Trustee or the Debenture Trustee is
closed for business or a day on which dealings in deposits in U.S. dollars are
not transacted in the London interbank market.


 


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


 


“Capital Security” means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $25 and
having the rights provided therefor in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided
herein.


 


“Capital Securityholder” means a Holder of Capital
Securities.


 


“Certificate Depository Agreement” means the agreement among
the Trust, the Depositor and The Depository Trust Company, as the initial
Clearing Agency, dated as of the Closing Date, relating to the Trust Securities
Certificates, as the same may be amended and supplemented from time to time.


 


“Certificate of Trust” has the meaning specified in the
recitals hereof, as amended from time to time.


 


“Clearing Agency” means an organization registered as a “clearing
agency” pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.  The Depository Trust Company
will be the initial Clearing Agency.


 


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


 


“Closing Date” means the date of execution and delivery of
this Trust Agreement.


 


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


 


3

















 


“Commission” means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.


 


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


 


“Common Security” means an undivided beneficial ownership
interest in the assets of the Trust, having a Liquidation Amount of $25 and the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.


 


“Common Securityholder” means a Holder of Common Securities.


 


“Corporate Trust Office” means (i) when used with
respect to the Property Trustee, the principal office of the Property Trustee
located at Rodney Square North, 1100 North Market Street, Wilmington, Delaware
19890-1600 and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located at Rodney Square North, 1100
North Market Street, Wilmington, Delaware 19890-1600.


 


“Debenture Event of Default” means an “Event of Default” as
defined in the Indenture (as such definition is amended by the provisions of
the Supplemental Indenture).


 


“Debenture Maturity Date” means the “Maturity Date” as
defined in the Supplemental Indenture.


 


“Debenture Repayment Date” means, with respect to any
Debentures to be repaid under the Indenture, any date fixed for repayment under
the Indenture.


 


“Debenture Trustee” means Wilmington Trust Company, a
Delaware banking corporation, as trustee under the Indenture, and any successor
trustee appointed as provided therein.


 


“Debentures” means the initial $100,010,000 aggregate
principal amount (or up to $115,010,000 aggregate principal amount if the
Underwriters exercise their over-allotment option as set forth in the
Underwriters Agreement), and any additional authorized aggregate principal
amount, of the Depositor’s Junior Subordinated Notes, Series I, issued
pursuant to the Indenture, a form of which is attached as Exhibit D.


 


“Definitive Capital Securities Certificates” means either or
both (as the context requires) of (a) Capital Securities Certificates
issued as Book-Entry Capital Securities Certificates as provided in Section 5.11(a) and
(b) Capital Securities Certificates issued in certificated, fully
registered form as provided in Section 5.13.


 


4

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(d)        default
in the performance, or breach, in any material respect, of any covenant or
warranty of the Trustees in this Trust Agreement (other than a covenant or
warranty a default in the performance or breach of which is dealt with in
clause (b) or (c) above) and continuation of such default or breach
for a period of 90 days after there has been given, by registered or certified
mail, to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Capital Securities, a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or


 


(e)        the
occurrence of a Bankruptcy Event with respect to the Property Trustee and the
failure by the Depositor to appoint a successor Property Trustee within 90 days
thereof.


 


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


 


“Federal Reserve” means the Board of Governors of the Federal
Reserve System, as from time to time constituted, or if at any time after the
execution of this Trust 


 


5

















 


Agreement the Federal Reserve is not existing and performing the duties
now assigned to it, then the body performing such duties at such time.


 


“Final Debenture Repayment Date” means the “Maturity Date” as
defined in the Supplemental Indenture.


 


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


 


“Indenture” means the Indenture, dated as of August 19,
2008, between the Depositor and the Debenture Trustee, as trustee, as amended
or supplemented from time to time.


 


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


 


“Like Amount” means (a) with respect to a redemption of
Trust Securities, Trust Securities having a Liquidation Amount equal to the
principal amount of Debentures to be contemporaneously redeemed in accordance
with the Indenture the proceeds of which will be used to pay the Redemption
Price of such Trust Securities, and (b) with respect to a distribution of
Debentures to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Debentures having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such
Debentures are distributed.


 


“Liquidation Amount” means the stated amount of $25 per Trust
Security.


 


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


 


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


 


“1940 Act” means the Investment Company Act of 1940, as
amended.


 


“Officers’ Certificate” means a certificate signed by any two
of the following: Chairman of the Board, the Chief Executive Officer, the
President, any Vice Chairman of the Board, the Chief Financial Officer, any
Vice President, the Treasurer, the Secretary, the Controller, any Assistant
Controller, any Assistant Treasurer or any Assistant Secretary of the Company
(as each term is used in the Indenture). Any Officers’ Certificate delivered
with respect to compliance with a condition or covenant provided for in this
Trust Agreement shall include:


 


6
















 


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


 


(b)                                 a
brief statement of the nature and scope of the examination or investigation
upon which the statements or opinions contained in such Officers’ Certificate
are based;


 


(c)                                  a
statement that, in the opinion of each individual signing the Officer’s
Certificate, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and


 


(d)                                 a
statement as to whether, in the opinion of each individual signing the Officers’
Certificate, such condition or covenant has been complied with.


 


“Opinion of Counsel” means a written opinion of counsel, who
may be counsel for the Trust, the Property Trustee or the Depositor, and who
shall be reasonably acceptable to the Property Trustee.


 


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


 


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


 


(a)                                  Trust
Securities represented by Trust Securities Certificates theretofore cancelled
by the Securities Registrar or delivered to the Securities Registrar for
cancellation;


 


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


 


(c)                                  Trust
Securities which have been paid or that are represented by Trust Securities
Certificates in exchange for or in lieu of which other Trust Securities
Certificates have been executed and delivered pursuant to this Trust Agreement,
including pursuant to Sections 5.4, 5.5, 5.11 and 5.13; provided,
however, that in determining whether the
Holders of the requisite Liquidation Amount of the Outstanding Capital
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital Securities owned by the Depositor, any
Trustee or any Affiliate of the Depositor or any Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether
any Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Capital Securities
that such Trustee actually knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the 


 


7

















 


Outstanding Capital Securities are owned by the
Depositor, one or more of the Trustees and/or any such Affiliate. Capital
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee’s right so to act with respect to such
Capital Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.


 


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


 


“Paying Agent” means any paying agent or co-paying agent
appointed pursuant to Section 5.9 and shall initially be the Bank.


 


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


 


“Person” means any individual, corporation, partnership,
joint venture, trust, limited liability company or corporation, unincorporated
organization or government or any agency or political subdivision thereof.


 


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


 


“Redemption Date” means, with respect to any Trust Security
to be redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement; provided that each Debenture Repayment
Date and the Debenture Maturity Date shall be a Redemption Date for a Like
Amount of Trust Securities.


 


“Redemption Price” means, with respect to any Trust Security,
the amount paid by the Depositor upon the concurrent redemption of a Like
Amount of Debentures, plus accumulated and unpaid Distributions to the
Redemption Date, allocated on a pro rata basis
(based on Liquidation Amounts) among the Trust Securities.


 


“Relevant Trustee” shall have the meaning specified in Section 8.10.


 


“Securities Register” and “Securities
Registrar” have the respective meanings specified in Section 5.4.


 


8

















 


“Securityholder” or “Holder” means a
Person in whose name a Trust Security or Trust Securities Certificate is
registered in the Securities Register; any such Person shall be a beneficial
owner within the meaning of the Delaware Statutory Trust Act; provided, however, that
in determining whether the Holders of the requisite amount of Capital
Securities have voted on any matter provided for in this Trust Agreement, then
for the purpose of any such determination, so long as Definitive Capital Securities
Certificates have not been issued, the term Securityholders or Holders as used
herein shall refer to the Owners.


 


“Supplemental
Indenture” means the Supplemental
Indenture, dated as of August 19, 2008, to the Indenture, between the
Depositor and the Debenture Trustee.


 


“Trust” means the Delaware statutory trust continued hereby
and identified on the cover page to this Trust Agreement.


 


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


 


“Trust Indenture Act” means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “Trust
Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.


 


“Trust Property” means (a) the Debentures, (b) any
cash on deposit in, or owing to, the Payment Account and (c) all proceeds
and rights in respect of the foregoing.


 


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


 


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


 


“Trustees” means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.


 


“Underwriters” means the underwriters named in Schedule I to
the Underwriters Agreement.


 


“Underwriting Agreement” means the underwriting agreement,
dated as of August 13, 2008, among the Trust, the Depositor and RBC
Capital Markets Corporation, as representative of the Underwriters named
therein.


 


9

















 


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


 


“Vice President” shall have the meaning given in the
Indenture.


 


ARTICLE II


 


CONTINUATION OF THE TRUST


 


Section 2.1                                      Name.


 


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


 


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


 


The
address of the Delaware Trustee in the State of Delaware is c/o Wilmington
Trust Company, Rodney Square North, 1100 North Market Street, Wilmington,
Delaware 19890-1600, Attention: Corporate Trust Administration, or such other
address in the State of Delaware as the Delaware Trustee may designate by
written notice to the Securityholders and the Depositor.  The principal executive office of the Trust
is c/o TCF Financial Corporation, 200 Lake Street East, Wayzata, Minnesota
55391-1693.


 


Section 2.3                                      Initial
Contribution of Trust Property; Organizational Expenses.


 


The
Property Trustee acknowledges receipt in trust from the Depositor in connection
with the Original Trust Agreement of the sum of $10, which constituted the
initial Trust Property. The Depositor shall pay organizational expenses of the
Trust as they arise or shall, upon request of any Trustee, promptly reimburse
such Trustee for any such expenses paid by such Trustee. The Depositor shall
make no claim upon the Trust Property for the payment of such expenses.


 


Section 2.4                                      Issuance
of the Capital Securities.


 


The Depositor,
on behalf of the Trust and pursuant to the Original Trust Agreement, executed
and delivered the Underwriting Agreement. Contemporaneously with the execution
and delivery of this Trust Agreement, an Administrative Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
underwriters Capital Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of 4,000,000
Capital Securities having an aggregate Liquidation Amount of $100,000,000,
against receipt of an aggregate purchase price plus accrued distributions from August 19,
2008, if any, on such Capital Securities of $100,000,000 which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. If the
Underwriters exercise their over-allotment option as set forth in the
Underwriting Agreement, an Administrative Trustee, on behalf of the 


 


10

















 


Trust,
shall execute in accordance with Section 5.2 and deliver to the
Underwriters Capital Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of up to 600,000
Capital Securities having an aggregate Liquidation Amount of up to $15,000,000,
against receipt of an aggregate purchase price plus accrued distributions from August 19,
2008, if any, on such Capital Securities of up to $15,000,000 which amount such
Administrative Trustee shall promptly deliver to the Property Trustee. On any
one or more dates after the execution and delivery of this Trust Agreement
additional Capital Securities Certificates representing Capital Securities may
be issued in accordance with Section 5.2, registered in the name of the
nominee of the initial Clearing Agency, against receipt by the Property Trustee
of the purchase price that is determined by the Depositor. Such additional
Capital Securities may be issued at a different offering price and accrue
distributions from a different date than the Capital Securities being issued
hereby.


 


Section 2.5                                      Issuance
of the Common Securities; Subscription and Purchase of Debentures.


 


Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Depositor Common Securities Certificates, registered in the
name of the Depositor, in an aggregate amount of 400 Common Securities having
an aggregate Liquidation Amount of $10,000 against payment by the Depositor of
an aggregate purchase price of $10,000, plus accrued distributions from August 19,
2008, if any, on such Common Securities, which amount such Administrative
Trustee shall promptly deliver to the Property Trustee. Contemporaneously
therewith, an Administrative Trustee, on behalf of the Trust, shall subscribe
to and purchase from the Depositor Debentures, registered in the name of the
Trust and having an aggregate principal amount equal to $100,010,000, and, in
satisfaction of the purchase price plus accrued interest from August 19,
2008, if any, for such Debentures, the Property Trustee, on behalf of the
Trust, shall deliver to the Depositor the sum of $100,010,000 (being the sum of
the amounts delivered to the Property Trustee pursuant to (i) the second
sentence of Section 2.4 and (ii) the first sentence of this Section 2.5).
If the Underwriters exercise their over-allotment option as set forth in the
Underwriting Agreement, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in
the name of the Trust and having an aggregate principal amount equal to up to
$15,000,000 and, in satisfaction of the purchase price plus accrued interest
from August 19, 2008, if any, for such Debentures, the Property Trustee,
on behalf of the Trust, shall deliver to the Depositor the sum of up to
$15,000,000, plus accrued distributions from August 19, 2008, if any. In
connection with any subsequent issuance of Capital Securities as set forth in
the fourth sentence of Section 2.4, an Administrative Trustee, on behalf
of the Trust, contemporaneously with any such additional issuance, shall
subscribe to and purchase from the Depositor Debentures, registered in the name
of the Trust, having an aggregate principal amount equal to the aggregate
Liquidation Amount of Capital Securities being issued by the Trust pursuant to
the third sentence of Section 2.4 against payment of a purchase price
equal to the aggregate purchase prices of the Capital Securities being so
issued.


 


11

















 


Section 2.6                                     Declaration
of Trust.


 


The
exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities, (b) to use the proceeds from such sale to acquire the
Debentures and (c) to engage in those activities necessary or incidental
thereto.  The Depositor hereby appoints
the Trustees as trustees of the Trust, to have all the rights, powers and
duties to the extent set forth herein, and the Trustees hereby accept such
appointment.  The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders.  The Administrative
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of
the Trust.  The Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities, of the Property Trustee or the
Administrative Trustees set forth herein. 
The Delaware Trustee shall be one of the Trustees of the Trust for the
sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Statutory Trust Act.


 


Section 2.7                                     Authorization
to Enter into Certain Transactions.


 


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


 


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


 


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


 


(B)                                causing
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, the Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of the
Trust;


 


(C)                                assisting
in the registration of the Capital Securities under the Securities Act of 1933,
as amended, and under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust Indenture Act;


 


(D)                               assisting
in the listing, if any, of the Capital Securities upon such national securities
exchange or exchanges or automated quotation system or systems as shall be
determined by the Depositor and the registration of the Capital Securities
under the Securities Exchange Act of 


 


12

















 


1934, as amended, and the preparation and filing of
all periodic and other reports and other documents pursuant to the foregoing;


 


(E)                                 the
sending of notices (other than notices of default) and other information
regarding the Trust Securities and the Debentures to the Securityholders in
accordance with this Trust Agreement;


 


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


 


(G)                                registering
transfer of the Trust Securities in accordance with this Trust Agreement;


 


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


 


(I)                                    unless
otherwise required by the Delaware Statutory Trust Act or the Trust Indenture
Act, executing on behalf of the Trust (either acting alone or together with any
or all of the Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust Agreement; and


 


(J)                                   taking
any action incidental to the foregoing as the Trustees may from time to time
determine is necessary or advisable to give effect to the terms of this Trust
Agreement for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder).


 


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


 


(A)                              the
establishment of the Payment Account;


 


(B)                                the
receipt of the Debentures;


 


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


 


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


 


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


 


13

















 


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


 


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


 


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


 


Except
as otherwise provided in this Section 2.7(a)(ii), the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).


 


(b)                                So
long as this Trust Agreement remains in effect, the Trust (or the Trustees
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In
particular, the Trustees shall not (i) acquire any investments or engage
in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would
cause the Trust to fail or cease to qualify as a “grantor trust” for United
States federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt, (v) take or consent to any action
that would result in the placement of a Lien on any of the Trust Property, (vi) invest
any proceeds received by the Trust from holding the Debentures (it being
understood that the Trust and Trustees shall distribute all such proceeds to
Holders of Trust Securities pursuant to the terms of this Trust Agreement and
of the Trust Securities), (vii) acquire any assets other than the Trust
Property, (viii) possess any power or otherwise act in such a way as to
vary the Trust Property, (ix) possess any power or otherwise act in such a
way as to vary the terms of the Trust Securities in any way whatsoever (except
to the extent expressly authorized in this Trust Agreement or by the terms of
the Trust Securities) or (x) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the Trust other than the
Trust Securities.  The Administrative
Trustees shall defend all claims and demands of all Persons at any time
claiming any Lien on any of the Trust Property adverse to the interest of the
Trust or the Securityholders in their capacity as Securityholders.


 


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


 


(i)                                     the
preparation and filing by the Trust with the Commission and the execution on
behalf of the Trust of one or more registration statements on the 


 


14

















 


appropriate form in relation to the Capital
Securities, including any amendments thereto;


 


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


 


(iii)                               if
the Depositor elects, the preparation for filing by the Trust and execution on
behalf of the Trust of any application to the New York Stock Exchange or any
other national stock exchange or The NASDAQ National Market or any other
automated quotation system for listing upon notice of issuance of any Capital
Securities and filing with such exchange or self-regulatory organization such
notifications and documents as may be necessary from time to time to maintain
such listing;


 


(iv)                              the
negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Capital Securities; and


 


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


 


(d)                                Notwithstanding
anything herein to the contrary, the Administrative Trustees are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an “investment company” required to be
registered under the 1940 Act, or fail to be classified as a grantor trust for
United States federal income tax purposes and so that the Debentures will be
treated as indebtedness of the Depositor for United States federal income tax
purposes. In this connection, the Depositor and the Administrative Trustees are
authorized to take any action, not inconsistent with applicable law, the
Certificate of Trust or this Trust Agreement, that each of the Depositor and
any Administrative Trustee determines in its discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect
in any material respect the interests of the Holders of the Capital Securities.


 


Section 2.8                                      Assets
of Trust.


 


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


 


Section 2.9                                      Title
to Trust Property.


 


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


 


15

















 


ARTICLE III


 


PAYMENT ACCOUNT


 


Section 3.1                                      Payment
Account.


 


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


 


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


 


ARTICLE IV


 


DISTRIBUTIONS; REDEMPTION


 


Section 4.1                                      Distributions.


 


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


 


(i)                                     Distributions
on the Trust Securities shall be cumulative, and will accumulate whether or not
there are funds of the Trust available for the payment of Distributions.
Distributions shall accrue from August 19, 2008, and, except in the event
(and to the extent) that the Depositor exercises its right to defer the payment
of interest on the Debentures pursuant to the Indenture, shall be payable
quarterly in arrears on February 15, May 15, August 15 and November 15 of each year, beginning November 15,
2008 (each such date, a “Distribution Date”).  In the event that any Distribution Date would
otherwise fall on a day that is not a Business Day, the Distribution will be
postponed to the next day that is a Business Day and no interest will accrue as
a result of that postponement.


 


(ii)                                  Assuming
payments of interest on the Debentures are made when due (and before giving
effect to Additional Amounts, if applicable), Distributions on the Trust
Securities shall be payable at the rate per annum provided for in the
Debentures. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.


 


16
















 


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


 


(b)           Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be one Business Day prior
to such Distribution Date; provided, however, that in the event that the Capital Securities do
not remain in book-entry-only form, the relevant record date shall be the first
day of the month in which the relevant Distribution Date occurs without giving
effect to the third sentence of Section 4.1(a)(i) (whether or not
such record date is a Business Day).


 


Section 4.2         Redemption.


 


(a)        On
each Debenture Repayment Date and the Debenture Maturity Date, the Trust will
be required to redeem a Like Amount of Trust Securities at the Redemption
Price.


 


(b)        Notice
of redemption shall be given by the Property Trustee by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date (or in the case of a Debenture Repayment Date, not less than
10 nor more than 15 Business Days prior to the Redemption Date) to
each Holder of Trust Securities to be redeemed, at such Holder’s address
appearing in the Security Register. All notices of redemption shall state:


 


(i)         the Redemption Date;


 


(ii)        the Redemption Price;


 


(iii)       the CUSIP number;


 


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


 


(v)        that on the Redemption Date the
Redemption Price will become due and payable upon each such Trust Security to
be redeemed and that Distributions thereon will cease to accrue on and after
said date; and


 


(vi)       if the Capital Securities are no longer
in book-entry-only form, the place and address where the Holders shall
surrender their Capital Securities Certificates.


 


(c)        The
Trust Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price with the proceeds from the contemporaneous redemption of the
Debentures or payment on a Debenture Repayment Date or the Debenture Maturity
Date. Redemptions of the Trust Securities shall be made and the 


 


17

















 


Redemption Price
shall be payable on each Redemption Date only to the extent that the Trust has
funds then on hand and available in the Payment Account for the payment of such
Redemption Price.


 


(d)        If the
Property Trustee gives a notice of redemption in respect of any Capital Securities,
then, by 10:00 A.M., New York City time, on the Redemption Date, subject
to Section 4.2(c), the Property Trustee will, so long as the Capital
Securities are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Capital Securities funds sufficient to pay the applicable
Redemption Price and will give such Clearing Agency irrevocable instructions
and authority to pay the Redemption Price to the Holders thereof.  If the Capital Securities are no longer in
book-entry-only form, the Property Trustee, subject to Section 4.2(c),
will irrevocably deposit with the Paying Agent funds sufficient to pay the
applicable Redemption Price and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof
upon surrender of their Capital Securities Certificates.  Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register for the Trust Securities on the relevant
record dates for the related Distribution Dates.  If notice of redemption shall have been given
and funds deposited as required, then upon the date of such deposit, all rights
of Securityholders holding Trust Securities so called for redemption will
cease, except the right of such Securityholders to receive the Redemption Price
and any Distribution payable on or prior to the Redemption Date, but without
interest thereon, and such Trust Securities will cease to be Outstanding.  In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay), except that, if such Business Day falls in the next calendar
year, such payment will be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date.  In the event that payment of the Redemption
Price in respect of any Trust Securities called for redemption is improperly
withheld or refused and not paid either by the Trust or by the Depositor
pursuant to the Guarantee, Distributions on such Trust Securities will continue
to accrue, at the then applicable rate, from the Redemption Date originally
established by the Trust for such Trust Securities to the date such Redemption
Price is actually paid, in which case the actual payment date will be the date
fixed for redemption for purposes of calculating the Redemption Price.


 


(e)        Payment
of the Redemption Price on the Trust Securities shall be made to the
recordholders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be one Business Day prior
to the relevant Redemption Date; provided, however, that in the event that the Capital Securities do
not remain in book-entry-only form, the relevant record date shall be the date
15 days prior to the relevant Redemption Date.


 


(f)         Subject
to Section 4.3(a), if less than all the Outstanding Trust Securities are
to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of
Trust Securities to be redeemed shall be allocated on a pro rata
basis (based on 


 


18

















 


Liquidation
Amounts) among the Common Securities and the Capital Securities.  The particular Capital Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Property Trustee from the Outstanding Capital Securities not previously
called for redemption, by such method (including, without limitation, by lot)
as the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to $25 or an integral
multiple of $25 in excess thereof) of the Liquidation Amount of Capital
Securities of a denomination larger than $25. The Property Trustee shall
promptly notify the Security Registrar in writing of the Capital Securities
selected for redemption and, in the case of any Capital Securities selected for
partial redemption, the Liquidation Amount thereof to be redeemed. For all
purposes of this Trust Agreement, unless the context otherwise requires, all
provisions relating to the redemption of Capital Securities shall relate, in
the case of any Capital Securities redeemed or to be redeemed only in part, to
the portion of the Liquidation Amount of Capital Securities that has been or is
to be redeemed.


 


Section 4.3         Subordination of
Common Securities.


 


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


 


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


 


19

















 


Section 4.4         Payment Procedures.


 


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


 


Section 4.5         Tax Returns and
Reports.


 


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


 


Section 4.6         Payment of Expenses
of the Trust.


 


Pursuant
to Section 10.6 of the Indenture, the Depositor, as borrower, has agreed
to pay to the Trust, and reimburse the Trust for, the full amount of any costs,
expenses or liabilities of the Trust (other than obligations of the Trust to
pay the Holders of any Capital Securities or other similar interests in the
Trust the amounts due such Holders pursuant to the terms of the Capital
Securities or such other similar interests, as the case may be), including,
without limitation, any taxes, duties or other governmental charges of whatever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority. Such payment obligation includes any such costs,
expenses or liabilities of the Trust that are required by applicable law to be
satisfied in connection with a termination of the Trust.


 


Section 4.7         Payments under
Indenture or Pursuant to Direct Actions.


 


Any
amount payable hereunder to any Holder of Capital Securities shall be reduced
by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder’s Capital Securities) has directly received pursuant to Section 5.08
of the Indenture or Section 5.14 of this Trust Agreement.


 


20

















 


ARTICLE V


 


TRUST SECURITIES CERTIFICATES


 


Section 5.1         Initial Ownership.


 


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


 


Section 5.2         The Trust Securities
Certificates.


 


The
Capital Securities Certificates shall be issued in minimum denominations of $25
Liquidation Amount and integral multiples of $25 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $25
Liquidation Amount and integral multiples thereof.  The Trust Securities Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of at least
one Administrative Trustee and, if executed on behalf of the Trust by
facsimile, countersigned by a transfer agent or its agent.  The Capital Securities Certificates shall be
authenticated by the Property Trustee by manual or facsimile signature of an
authorized signatory thereof and, if executed by such authorized signatory of
the Property Trustee by facsimile, countersigned by a transfer agent or its agent.  Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust or, if
executed on behalf of the Trust by facsimile, countersigned by a transfer agent
or its agent, shall be validly issued and entitled to the benefits of this
Trust Agreement, notwithstanding that such individuals or any of them shall
have ceased to be so authorized prior to the delivery of such Trust Securities Certificates
or did not hold such offices at the date of delivery of such Trust Securities
Certificates.  A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee’s name
pursuant to Sections 5.4, 5.11 and 5.13.


 


Section 5.3         Execution and
Delivery of Trust Securities Certificates.


 


On the
Closing Date, the Administrative Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4
and 2.5, to be executed on behalf of the Trust and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president, any executive vice president, any managing director or any vice
president, treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.


 


Section 5.4         Registration of Transfer
and Exchange of Capital Securities Certificate.


 


The
Depositor shall keep or cause to be kept, at the office or agency maintained
pursuant to Section 5.8, a register or registers for the purpose of
registering Trust 


 


21

















 


Securities Certificates and transfers and exchanges of
Capital Securities Certificates (the “Securities Register”) in which the
transfer agent and registrar designated by the Depositor (the “Securities
Registrar”), subject to such reasonable regulations as it may prescribe, shall
provide for the registration of Capital Securities Certificates and Common
Securities Certificates (subject to Section 5.10 in the case of the Common
Securities Certificates) and registration of transfers and exchanges of Capital
Securities Certificates as herein provided. 
The Bank shall be the initial Securities Registrar.


 


Upon
surrender for registration of transfer of any Capital Securities Certificate at
the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute on behalf of the Trust
(and if executed on behalf of the Trust by a facsimile signature, such
certificate shall be countersigned by a transfer agent or its agent) and
deliver, in the name of the designated transferee or transferees, one or more
new Capital Securities Certificates in authorized denominations of a like
aggregate Liquidation Amount dated the date of execution by such Administrative
Trustee or Trustees. The Securities Registrar shall not be required to register
the transfer of any Capital Securities that have been called for redemption
during a period beginning at the opening of business 15 days before the day of
selection for such redemption.


 


At the
option of a Holder, Capital Securities Certificates may be exchanged for other
Capital Securities Certificates in authorized denominations of the same class
and of a like aggregate Liquidation Amount upon surrender of the Capital
Securities Certificates to be exchanged at the office or agency maintained
pursuant to Section 5.8.


 


Every
Capital Securities Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to an Administrative Trustee and the Securities Registrar
duly executed by the Holder or his attorney duly authorized in writing. Each
Capital Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by an Administrative
Trustee or the Securities Registrar in accordance with such Person’s customary
practice.


 


No
service charge shall be made for any registration of transfer or exchange of
Capital Securities Certificates, but the Securities Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Capital Securities
Certificates.


 


Section 5.5         Mutilated, Destroyed,
Lost or Stolen Trust Securities Certificates.


 


If (a) any
mutilated Trust Securities Certificate shall be surrendered to the Securities
Registrar, or if the Securities Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar
and the Administrative Trustees such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide or
protected purchaser, the Administrative Trustees, or any one of them, on behalf
of the Trust shall execute by manual or facsimile signature and, if executed on
behalf of the 


 


22

















 


Trust by facsimile signature, such certificate shall
be countersigned by a transfer agent, and make available for delivery, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Securities Certificate, a new Trust Securities Certificate of like class, tenor
and denomination. In connection with the issuance of any new Trust Securities
Certificate under this Section, the Administrative Trustees or the Securities
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.  Any duplicate Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the Trust Property, as if originally issued,
whether or not the lost, stolen or destroyed Trust Securities Certificate shall
be found at any time.


 


Section 5.6         Persons Deemed
Securityholders.


 


The
Trustees or the Securities Registrar shall treat the Person in whose name any
Trust Securities Certificate shall be registered in the Securities Register as
the owner of such Trust Securities Certificate for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.


 


Section 5.7         Access to List of
Securityholders’ Names and Addresses.


 


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


 


Section 5.8         Maintenance of Office
or Agency.


 


The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Capital Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be
served.  The Administrative Trustees
initially designate Wilmington Trust Company, Attn: Corporate Trust
Administration, at its Corporate Trust Office for such purposes.  The Administrative Trustees shall give prompt
written notice to the Depositor, the Property Trustee and to the Securityholders
of any change in the location of the Securities Register or any such office or
agency.


 


Section 5.9         Appointment of Paying
Agent.


 


The
Paying Agent shall make Distributions to Securityholders from the Payment
Account and shall report the amounts of such Distributions to the Property Trustee
and the Administrative Trustees. Any Paying Agent shall have the revocable
power to withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above.  The
Administrative Trustees may revoke such power and remove the Paying Agent if
such Trustees determine in their sole discretion that the Paying Agent shall
have failed to perform its obligations under this Trust Agreement in any
material respect.  The Paying Agent shall
initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person 


 


23

















 


acting as Paying Agent shall be permitted to resign as
Paying Agent upon 30 days’ written notice to the Administrative Trustees, the
Property Trustee and the Depositor.  In
the event that the Bank shall no longer be the Paying Agent or a successor
Paying Agent shall resign or its authority to act be revoked, the Administrative
Trustees shall appoint a successor that is acceptable to the Property Trustee
and the Depositor to act as Paying Agent (which shall be a bank or trust
company).  The Administrative Trustees
shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment
to the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders.  The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon resignation or removal of a Paying Agent
such Paying Agent shall also return all funds in its possession to the Property
Trustee.  The provisions of Sections 8.1,
8.3 and 8.6 herein shall apply to the Bank also in its role as Paying Agent,
for so long as the Bank shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder, and any Paying Agent
shall be bound by the requirements with respect to paying agents of securities
issued pursuant to the Trust Indenture Act. 
Any reference in this Agreement to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.


 


Section 5.10       Ownership of Common
Securities by Depositor.


 


On the
Closing Date, the Depositor shall acquire and retain beneficial and record
ownership of the Common Securities. To the fullest extent permitted by law,
other than a transfer in connection with a consolidation or merger of the
Depositor into another Person, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, any attempted transfer
of the Common Securities shall be void. The Administrative Trustees shall cause
each Common Securities Certificate issued to the Depositor to contain a legend
stating “THIS CERTIFICATE IS NOT TRANSFERABLE TO ANY PERSON OTHER THAN AS SET
FORTH IN THE TRUST AGREEMENT (AS DEFINED BELOW)”.


 


Section 5.11       Book-Entry Capital
Securities Certificates; Common Securities Certificate.


 


(a)           The Capital Securities Certificates,
upon original issuance, will be issued in the form of a typewritten Capital
Securities Certificate or Certificates representing Book-Entry Capital
Securities Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust. Such Capital
Securities Certificate or Certificates shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Owner will receive a Definitive Capital
Securities Certificate representing such Owner’s interest in such Capital
Securities, except as provided in Section 5.13. Unless and until
Definitive Capital Securities Certificates have been issued to Owners pursuant
to Section 5.13:


 


24
















 


(i)                                     the
provisions of this Section 5.11(a) shall be in full force and effect;


 


(ii)                                  the
Securities Registrar and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Capital Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Capital Securities evidenced by
Book-Entry Capital Securities Certificates and the giving of instructions or
directions to Owners of Capital Securities evidenced by Book-Entry Capital
Securities Certificates) as the sole Holder of Capital Securities evidenced by
Book-Entry Capital Securities Certificates and shall have no obligations to the
Owners thereof;


 


(iii)                               to
the extent that the provisions of this Section 5.11 conflict with any
other provisions of this Trust Agreement, the provisions of this Section 5.11
shall control; and


 


(iv)                              the
rights of the Owners of the Book-Entry Capital Securities Certificates shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Owners and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the Certificate Depository
Agreement, unless and until Definitive Capital Securities Certificates are
issued pursuant to Section 5.13, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments on the Capital Securities to such Clearing Agency
Participants.


 


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


 


Section 5.12                                Notices
to Clearing Agency.


 


To the
extent that a notice or other communication to the Owners is required under
this Trust Agreement, unless and until Definitive Capital Securities
Certificates shall have been issued to Owners pursuant to Section 5.13,
the Trustees shall give all such notices and communications specified herein to
be given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.


 


Section 5.13                                Definitive
Capital Securities Certificates.


 


If (a) the
Depositor advises the Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its responsibilities with respect to the
Capital Securities Certificates, and the Depositor is unable to locate a
qualified successor, (b) the Depositor at its sole discretion on behalf of
the Trust advises the Trustees in writing that it elects to terminate the
book-entry system through the Clearing Agency or (c) after the occurrence
of a Debenture Event of Default, Owners of Capital Securities Certificates
representing beneficial interests aggregating at least a majority of the
Liquidation 


 


25

















 


Amount advise the Administrative Trustees in writing
that the continuation of a book-entry system through the Clearing Agency is no
longer in the best interest of the Owners of Capital Securities Certificates,
then the Administrative Trustees shall notify other Trustees and the Clearing
Agency, and the Clearing Agency, in accordance with its customary rules and
procedures, shall notify all Clearing Agency Participants for whom it holds
Capital Securities of the occurrence of any such event and of the availability
of the Definitive Capital Securities Certificates to Owners of such class or
classes, as applicable, requesting the same. 
Upon surrender to the Administrative Trustees of the typewritten Capital
Securities Certificate or Certificates representing the Book-Entry Capital
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute
the Definitive Capital Securities Certificates in accordance with the
instructions of the Clearing Agency or, if executed on behalf of the Trust by
facsimile, countersigned by a transfer agent or its agent.  Neither the Securities Registrar nor the
Trustees shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such
instructions.  Upon the issuance of
Definitive Capital Securities Certificates, the Trustees shall recognize the
Holders of the Definitive Capital Securities Certificates as Securityholders to
the extent the same is registered in the Securities Register as an owner.  The Definitive Capital Securities
Certificates shall be typewritten, printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Administrative
Trustees that meets the requirements of any stock exchange or automated
quotation system on which the Capital Securities are then listed or approved
for trading, as evidenced by the execution thereof by the Administrative
Trustees or any one of them.


 


Section 5.14                                Rights
of Securityholders.


 


(a)                                  The
legal title to the Trust Property is vested exclusively in the Property Trustee
(in its capacity as such) in accordance with Section 2.9, and the
Securityholders shall not have any right or title therein other than the
undivided beneficial ownership interest in the assets of the Trust conferred by
their Trust Securities and they shall have no right to call for any partition
or division of property, profits or rights of the Trust except as described
below.  The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Trust Agreement.  The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Securityholders against payment of the purchase price therefor
will be fully paid and nonassessable by the Trust. The Holders of the Capital
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.


 


(b)                                 For
so long as any Capital Securities remain Outstanding, if, upon a Debenture
Event of Default described in Section 2.1(j)(1) of the Supplemental
Indenture, the Debenture Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Debentures fail to declare the principal of
all of the Debentures to be immediately due and payable, the Holders of at
least 25% in Liquidation Amount of the Capital Securities then Outstanding
shall have such right by a notice in writing to the 


 


26

















 


Depositor and the
Debenture Trustee; and upon any such declaration such principal amount of and
the accrued interest on all of the Debentures shall become immediately due and
payable as set forth in the Indenture, provided that
the payment of principal and interest on such Debentures shall remain
subordinated to the extent provided in the Indenture.


 


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


 


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


 


(A)                              all
overdue installments of interest (including any Additional Interest) on all of
the Debentures,


 


(B)                                the
principal of any Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate borne by the
Debentures, and


 


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


 


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


 


The
Holders of a majority in aggregate Liquidation Amount of the Capital Securities
may, on behalf of the Holders of all the Capital Securities, waive any past
default under the Indenture, except a default in the payment of principal or
interest (unless all Events of Default with respect to the Debentures, other
than the non-payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or annulled as provided in Section 5.3
of the Indenture and the Depositor has paid or deposited with the Debenture
Trustee a sum sufficient to pay all overdue installments of interest (including
any Additional Interest) on the Debentures, the principal of any Debentures
which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Debentures, and all sums paid or
advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Debenture Trustee and
the Property Trustee, their agents and counsel) or a default in respect of a
covenant or provision which under the Indenture cannot be modified or amended
without the consent 


 


27

















 


of the holder of each outstanding Debenture.  No such rescission shall affect any
subsequent default or impair any right consequent thereon.


 


Upon
receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the
Capital Securities all or part of which are represented by Book-Entry Capital
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Capital Securities entitled to join in such notice,
which record date shall be at the close of business on the day the
Property Trustee receives such notice. 
The Holders of Outstanding Capital Securities on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to join
in such notice, whether or not such Holders remain Holders after such record
date; provided that, unless such declaration
of acceleration, or rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage having joined in such
notice prior to the day which is 90 days after such record date, such
notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be
canceled and of no further effect. 
Nothing in this paragraph shall prevent a Holder, or a proxy of a
Holder, from giving, after expiration of such 90-day period, a new written
notice of declaration of acceleration, or rescission and annulment thereof, as
the case may be, that is identical to a written notice which has been canceled
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.14(b).


 


(c)                                  For
so long as any Capital Securities remain Outstanding, to the fullest extent
permitted by law and subject to the terms of this Trust Agreement and the
Indenture, (i) upon a breach by the Depositor of its obligations under Section 2.1(i) of
the Supplemental Indenture to issue Qualifying APM Securities (as defined
therein), any Holder of Capital Securities shall have the right to institute a
suit directly against the Depositor to enforce such obligations or for such
other remedies as may be available, and (ii) upon a Debenture Event of
Default specified in Sections 2.1(j)(1) or 2.1(j)(2) of the
Supplemental Indenture, any Holder of Capital Securities shall have the right
to institute a proceeding directly against the Depositor, pursuant to Section 7.08
of the Indenture and 2.1(p) of the Supplemental Indenture, for enforcement
of payment to such Holder of the principal amount of or interest on Debentures
having a principal amount equal to the Liquidation Amount of the Capital
Securities of such Holder (a “Direct Action”). Except as set forth in Section 5.14(b) and
this Section 5.14(c), the Holders of Capital Securities shall have no
right to exercise directly any right or remedy available to the holders of, or
in respect of, the Debentures.


 


Section 5.15                                CUSIP
Numbers.


 


The
Administrative Trustees in issuing the Capital Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Property Trustee 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 Capital 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 


 


28

















 


Capital 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.


 


ARTICLE VI


 


ACTS OF SECURITYHOLDERS; MEETINGS; VOTING


 


Section 6.1                                      Limitations
on Voting Rights.


 


(a)                                  Except
as provided in this Section, in Sections 5.14, 8.10 and 10.3 and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.


 


(b)                                 So
long as any Debentures are held by the Property Trustee, the Trustees shall not
(i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures, (ii) waive
any past default which is waivable under Section 7.13 of 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, without, in each case, obtaining the prior approval
of the Holders of at least a majority in Liquidation Amount of all Outstanding
Capital Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Debentures affected thereby, no such
consent shall be given by the Property Trustee without the prior written
consent of each Holder of Capital Securities. 
The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Capital Securities, except by a subsequent
vote of the Holders of Capital Securities. 
The Property Trustee shall notify all Holders of the Capital Securities
of any notice of default received from the Debenture Trustee with respect to
the Debentures.  In addition to obtaining
the foregoing approvals of the Holders of the Capital Securities, prior to
taking any of the foregoing actions, the Administrative Trustees shall, at the
expense of the Depositor, obtain an Opinion of Counsel experienced in such
matters to the effect that such action shall not cause the Trust to fail to be
classified as a grantor trust for United States federal income tax purposes.


 


(c)                                  If
any proposed amendment to the Trust Agreement provides for, or the Trustees
otherwise propose to effect, (i) any action that would adversely affect in
any material respect the powers, preferences or special rights of the Capital
Securities, whether by way of amendment to the Trust Agreement or otherwise, or
(ii) the dissolution, winding-up or termination of the Trust, other than
pursuant to the terms of this Trust Agreement, then the Holders of Outstanding
Capital Securities as a class will 


 


29

















 


be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a majority in
Liquidation Amount of the Outstanding Capital Securities.  Notwithstanding any other provision of this
Trust Agreement, no amendment to this Trust Agreement may be made if, as a
result of such amendment, it would cause the Trust to fail to be classified as
a grantor trust for United States federal income tax purposes.


 


Section 6.2                                      Notice
of Meetings.


 


Notice
of all meetings of the Capital Securityholders, stating the time, place and
purpose of the meeting, shall be given by the Property Trustee pursuant to Section 10.9
to each Capital Securityholder of record, at his registered address, at least
15 days and not more than 90 days before the meeting.  At any such meeting, any business properly
before the meeting may be so considered whether or not stated in the notice of
the meeting.  Any adjourned meeting may
be held as adjourned without further notice.


 


Section 6.3                                      Meetings
of Capital Securityholders.


 


No
annual meeting of Securityholders is required to be held.  The Administrative Trustees, however, shall
call a meeting of Capital Securityholders to vote on any matter upon the
written request of the Capital Securityholders of record of 25% of the
Outstanding Capital Securities (based upon their Liquidation Amount) and the
Administrative Trustees or the Property Trustee may, at any time in their
discretion, call a meeting of Capital Securityholders to vote on any matters as
to which Capital Securityholders are entitled to vote pursuant to this Trust
Agreement or the Indenture.


 


Capital
Securityholders of record of 50% of the Outstanding Capital Securities (based
upon their Liquidation Amount), present in person or by proxy, shall constitute
a quorum at any meeting of Capital Securityholders.


 


If a
quorum is present at a meeting, an affirmative vote by the Capital
Securityholders of record present, in person or by proxy, holding a majority of
the Outstanding Capital Securities (based upon their Liquidation Amount) held
by holders of record of Outstanding Capital Securities present, either in
person or by proxy, at such meeting shall constitute the action of the Capital
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.


 


Section 6.4                                      Voting
Rights.


 


Securityholders
shall be entitled to one vote for each $25 of Liquidation Amount represented by
their Trust Securities in respect of any matter as to which such
Securityholders are entitled to vote.


 


Section 6.5                                      Proxies,
etc.


 


At any
meeting of Securityholders, any Securityholder entitled to vote thereat may
vote by proxy, provided that no proxy shall be
voted at any meeting unless it shall have been placed on file with the
Administrative Trustees, or with such other officer or 


 


30

















 


agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be
taken.  Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee.  Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or by proxy in respect of
such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so
present disagree as to any vote to be cast, such vote shall not be received in
respect of such Trust Securities.  A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.


 


Section 6.6                                      Securityholder
Action by Written Consent.


 


Any
action which may be taken by Securityholders at a meeting may be taken without
a meeting and without prior notice if Securityholders holding a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.


 


Section 6.7                                      Record
Date for Voting and Other Purposes.


 


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


 


Section 6.8                                      Acts
of Securityholders.


 


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


 


31

















 


The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority.  The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which any Trustee receiving the same
deems sufficient.


 


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


 


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


 


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


 


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


 


Section 6.9                                      Inspection
of Records


 


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


 


32

















 


ARTICLE VII


 


REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


(a)                                  the
Property Trustee is a Delaware banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;


 


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


 


(c)                                  the
Delaware Trustee is a Delaware banking corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware;


 


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


 


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


 


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


 


33

















 


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


 


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


 


Section 7.2                                      Representations
and Warranties of Depositor.


 


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


 


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


 


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


 


ARTICLE VIII


 


THE TRUSTEES


 


Section 8.1                                      Certain
Duties and Responsibilities.


 


(a)                                  The
duties and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture
Act.  Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise incur any financial liability in the performance
of any of their duties hereunder, or in the exercise of any of their rights or
powers, if they shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to them. Whether or not therein expressly so provided, every
provision of this Trust Agreement relating to the conduct or affecting the
liability of or affording protection to the Trustees 


 


34

















 


shall be subject
to the provisions of this Section. 
Nothing in this Trust Agreement shall be construed to release an
Administrative Trustee from liability for its own gross negligent action, its own
gross negligent failure to act, or its own willful misconduct. To the extent
that, at law or in equity, an Administrative Trustee has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to the
Securityholders, such Administrative Trustee shall not be liable to the Trust
or to any Securityholder for such Trustee’s good faith reliance on the
provisions of this Trust Agreement.  The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.


 


(b)                                 All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof.  Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the revenue and proceeds
from the Trust Property to the extent legally available for distribution to it
as herein provided and that the Trustees are not personally liable to it for
any amount distributable in respect of any Trust Security or for any other
liability in respect of any Trust Security. 
This Section 8.1(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Trust Agreement or, in the case
of the Property Trustee, in the Trust Indenture Act.


 


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


 


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


 


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


 


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


 


35
















 


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


 


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


 


Section 8.2             Certain
Notices.


 


Within
ten Business Days after the occurrence of any Event of Default actually known
to the Property Trustee, the Property Trustee shall transmit, in the manner and
to the extent provided in Section 10.9, notice of such Event of Default to
the Securityholders, the Administrative Trustees and the Depositor, unless such
Event of Default shall have been cured or waived.


 


Within
five Business Days after the receipt of notice of the Depositor’s exercise of
its right to defer the payment of interest on the Debentures pursuant to the
Indenture, the Administrative Trustee shall transmit, in the manner and to the
extent provided in Section 10.9, notice of such exercise to the
Securityholders and the Property Trustee, unless such exercise shall have been
revoked.


 


Section 8.3             Certain
Rights of Property Trustee.


 


Subject
to the provisions of Section 8.1:


 


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


 


(b)           if (i) in performing its duties
under this Trust Agreement the Property Trustee is required to decide between
alternative courses of action or (ii) in construing any of the provisions
of this Trust Agreement the Property Trustee finds the same ambiguous or
inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to which the Capital
Securityholders are entitled to vote under the terms of this Trust Agreement,
the Property Trustee shall deliver a notice to the Depositor requesting written
instructions of the Depositor as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from taking such action, as
the Property Trustee shall be instructed in writing to take, or to refrain from
taking, by the Depositor; provided, however, that if the Property Trustee does not receive such 


 


36

















 


instructions of
the Depositor within ten Business Days after it has delivered such notice, or
such reasonably shorter period of time set forth in such notice (which to the
extent practicable shall not be less than two Business Days), it may, but shall
be under no duty to, take or refrain from taking such action not inconsistent
with this Trust Agreement as it shall deem advisable and in the best interests
of the Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or willful misconduct;


 


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


 


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


 


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


 


(f)            the Property Trustee may consult
with counsel of its selection (which counsel may be counsel to the Depositor or
any of its Affiliates, and may include any of its employees) and the advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Property Trustee shall
have the right at any time to seek instructions concerning the administration
of this Trust Agreement from any court of competent jurisdiction;


 


(g)           the Property Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Trust Agreement at the request or direction of any of the Securityholders
pursuant to this Trust Agreement, unless such Securityholders shall have
offered to the Property Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;


 


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


 


(i)            the Property Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys; 


 


37

















 


provided that the Property
Trustee shall be responsible for its own negligence or recklessness with
respect to selection of any agent or attorney appointed by it hereunder;


 


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


 


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


 


No
provision of this Trust Agreement 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 8.4             Not
Responsible for Recitals or Issuance of Securities.


 


The
recitals contained herein and in the Trust Securities Certificates shall be
taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. 
The Trustees shall not be accountable for the use or application by the
Depositor of the proceeds of the Debentures.


 


Section 8.5             May Hold
Securities.


 


Any
Trustee or any other agent of any Trustee or the Trust, in its individual or
any other capacity, may become the owner or pledgee of Trust Securities and,
subject to Sections 8.8 and 8.13, except as provided in the definition of the
term “Outstanding” in Article I, may otherwise deal with the Trust with
the same rights it would have if it were not a Trustee or such other agent.


 


Section 8.6             Compensation;
Indemnity; Fees.


 


Pursuant
to Section 8.07 of the Indenture, the Depositor, as borrower, agrees:


 


(a)           to pay to the Trustees from time to
time such compensation as shall be agreed in writing with the Depositor for all
services rendered by them hereunder (which 


 


38

















 


compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);


 


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


 


(c)           to the fullest extent permitted by
applicable law, to indemnify and hold harmless (i) each Trustee, (ii) any
Affiliate of any Trustee, (iii) any officer, director, shareholder,
employee, representative or agent of any Trustee, and (iv) any employee or
agent of the Trust or its Affiliates, (referred to herein as an “Indemnified
Person”) from and against any and all loss, damage, liability, tax, penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person by reason of the creation, operation or termination of the Trust or any
act or omission performed or omitted by such Indemnified Person in good faith
on behalf of the Trust and in a manner such Indemnified Person reasonably
believed to be within the scope of authority conferred on such Indemnified
Person by this Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions.  When
the Property Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 7.01(i) or Section 7.01(ii) of
the Indenture, the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.


 


The
provisions of this Section 8.6 shall survive the termination of this Trust
Agreement.


 


No
Trustee may claim any lien or charge on any Trust Property as a result of any
amount due pursuant to this Section 8.6.


 


The
Depositor and any Trustee (in the case of the Property Trustee, subject to Section 8.8
hereof) 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 Trust Securities
shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper.  Neither the Depositor, nor any Trustee, shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any 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 Trustee 


 


39

















 


may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of
holders of, securities or other obligations of the Depositor or its Affiliates.


 


Section 8.7             Corporate
Property Trustee Required; Eligibility of Trustees.


 


(a)           There shall at all times be a
Property Trustee hereunder with respect to the Trust Securities. The Property
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such, has a combined capital and surplus of at least $50,000,000, and
is a U.S. Person. At all times, the Property Trustee shall be (i) a bank, as
defined in Section 581 of the Code or (ii) a U.S. government-owned
agency or U.S. government-sponsored enterprise. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Property Trustee with respect to the
Trust Securities shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


(b)           There shall at all times be one or
more Administrative Trustees hereunder with respect to the Trust Securities.
Each Administrative Trustee shall be either a natural person who is at least 21
years of age or a legal entity that shall act through one or more persons
authorized to bind that entity, and, in either case, shall be a U.S. Person.


 


(c)           There shall at all times be a
Delaware Trustee with respect to the Trust Securities. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity, and, in either case, shall be a U.S.
Person.


 


Section 8.8             Conflicting
Interests.


 


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


 


Section 8.9             Co-Trustees
and Separate Trustee.


 


Unless
an Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture
Act or of any jurisdiction in which any part of the Trust Property may at the
time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for
such purpose join with the Administrative Trustees in 


 


40

















 


the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved by the Property Trustee either to act as co-trustee, jointly with the
Property Trustee, of all or any part of such Trust Property, or to the extent
required by law to act as separate trustee of any such property, in either case
with such powers as may be provided in the instrument of appointment, and to
vest in such Person or Persons in the capacity aforesaid, any property, title,
right or power deemed necessary or desirable, subject to the other provisions
of this Section. If the Depositor does not join in such appointment within 15
days after the receipt by it of a request so to do, or in case a Debenture
Event of Default has occurred and is continuing, the Property Trustee alone
shall have power to make such appointment. 
Any co-trustee or separate trustee appointed pursuant to this Section shall
either be (i) a natural person who is at least 21 years of age and a
resident of the United States or (ii) a legal entity with its principal
place of business in the United States that shall act through one or more
persons authorized to bind such entity, and, in either case, shall be a U.S.
Person.


 


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


 


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


 


(a)           The Trust Securities shall be
executed and delivered and all rights, powers, duties, and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Trustees
specified hereunder shall be exercised solely by such Trustees and not by such co-trustee
or separate trustee.


 


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


 


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


 


41

















 


removal.  A successor to any co-trustee or separate
trustee so resigned or removed may be appointed in the manner provided in this
Section.


 


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


 


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


 


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


 


Section 8.10           Resignation
and Removal; Appointment of Successor.


 


No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.


 


Subject
to the immediately preceding paragraph, the Relevant Trustee may resign at any
time by giving written notice thereof to the Securityholders.  If the instrument of acceptance by the
successor Trustee required by Section 8.11 shall not have been delivered
to the Relevant Trustee within 30 days after the giving of such notice of
resignation, the Relevant Trustee may petition, at the expense of the Trust,
any court of competent jurisdiction for the appointment of a successor Relevant
Trustee.


 


Unless
a Debenture Event of Default shall have occurred and be continuing, any Trustee
may be removed at any time by Act of the Common Securityholder. If a Debenture
Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed at such time by Act of
the Holders of a majority in Liquidation Amount of the Capital Securities,
delivered to the Relevant Trustee (in its individual capacity and on behalf of
the Trust).  An Administrative Trustee
may be removed by the Common Securityholder at any time. If the instrument of
acceptance by the successor Trustee required by Section 8.11 shall not
have been delivered to the Relevant Trustee within 30 days after such removal,
the Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.


 


If any
Trustee shall resign, be removed or become incapable of acting as Trustee, or
if a vacancy shall occur in the office of any Trustee for any cause, at a time
when no Debenture Event of Default shall have occurred and be continuing, the
Common Securityholder, by Act of the Common Securityholder delivered to the
retiring Trustee, shall promptly appoint a successor Trustee or Trustees, and
the retiring Trustee shall comply with the applicable requirements of Section 8.11.  If the Property Trustee or the Delaware
Trustee shall resign, be removed or become incapable of continuing to act as
the Property Trustee or the Delaware Trustee, as the case may be, at a time
when a Debenture Event of Default shall have occurred and be continuing, the
Capital Securityholders, by Act of the Securityholders of a majority in
Liquidation Amount of the 


 


42

















 


Capital Securities then Outstanding delivered to the
retiring Relevant Trustee, shall promptly appoint a successor Relevant Trustee
or Trustees, and such successor Trustee shall comply with the applicable
requirements of Section 8.11.  If an
Administrative Trustee shall resign, be removed or become incapable of acting
as Administrative Trustee, at a time when a Debenture Event of Default shall
have occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable
requirements of Section 8.11.  If no
successor Relevant Trustee shall have been so appointed by the Common
Securityholder or the Capital Securityholders and accepted appointment in the
manner required by Section 8.11, any Securityholder who has been a
Securityholder of Trust Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.


 


The
Property Trustee shall give notice of each resignation and each removal of the
Property Trustee or the Delaware Trustee and each appointment of a successor
Property Trustee or Delaware Trustee to all Securityholders in the manner
provided in Section 10.9 and shall give notice to the Depositor. Each
notice shall include the name of the successor Property Trustee or Delaware
Trustee, as the case may be, and the address of its Corporate Trust Office if
it is the Property Trustee.


 


Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any
Administrative Trustee or a Delaware Trustee who is a natural person dies or
becomes, in the opinion of the Depositor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a) the
unanimous act of the remaining Administrative Trustees if there are at least
two of them or (b) otherwise by the Depositor (with the successor in each
case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in Section 8.7).


 


A
successor Trustee must be a U.S. Person to be appointed as such.


 


Section 8.11           Acceptance
of Appointment by Successor.


 


In
case of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee (if requested by the Depositor) and each successor Relevant
Trustee with respect to the Trust Securities shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee with respect to the Trust Securities and the Trust
and (b) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the Trust by more than one Relevant Trustee, it being understood that
nothing herein or in such amendment shall constitute such Relevant Trustees
co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become 


 


43

















 


effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on written request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.


 


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


 


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


 


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


 


Any
Person into which the Property Trustee or the Delaware Trustee may be merged or
converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which such Relevant Trustee shall be
a party, or any Person succeeding to all or substantially all the corporate
trust business of such Relevant Trustee, shall be the successor of such
Relevant Trustee hereunder, provided such Person 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.


 


Section 8.13           Preferential
Collection of Claims Against Depositor or Trust.


 


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 Trust Securities
or the property of the Trust or of such other obligor or their creditors, the
Property Trustee (irrespective of whether any Distributions on the Trust
Securities shall then be due and payable 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 Trust
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Property Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and


 


(b)           to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, 


 


44

















 


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 Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.


 


Section 8.14           Reports
by Property Trustee.


 


(a)           The Property Trustee shall transmit
to Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within sixty days after
each May 15 following the date of this Trust Agreement deliver to
Securityholders a brief report, dated as of such May 15, which complies
with the provisions of such Section 313(a).


 


(b)           A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Property Trustee with
each national stock exchange, the Nasdaq National Market or such other
interdealer quotation system or self-regulatory organization upon which the
Capital Securities are listed or traded, if any, with the Commission and with
the Depositor. The Depositor will promptly notify the Property Trustee of any
such listing or trading.


 


Section 8.15           Reports
to the Property Trustee.


 


The
Depositor 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) of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act. Delivery of such reports, information
and documents to the Property Trustee is for informational purposes only and
the Property Trustee’s receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Trust’s compliance with any of its covenants hereunder
(as to which the Property Trustee is entitled to rely exclusively on Officers’
Certificates).


 


Section 8.16           Evidence
of Compliance with Conditions Precedent.


 


Each
of the Depositor 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 Trust Agreement that relate to any of
the matters set 


 


45

















 


forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be
given in the form of an Officers’ Certificate.


 


Section 8.17           Number
of Trustees.


 


(a)           The number of Trustees shall be four,
provided that the Holder of all of the
Common Securities by written instrument may increase or decrease the number of
Administrative Trustees. The Property Trustee and the Delaware Trustee may be
the same Person.


 


(b)           If a Trustee ceases to hold office
for any reason and the number of Administrative Trustees is not reduced
pursuant to Section 8.17(a), or if the number of Trustees is increased
pursuant to Section 8.17(a), a vacancy shall occur.  The vacancy shall be filled with a Trustee
appointed in accordance with Section 8.10.


 


(c)           The death, resignation, retirement,
removal, bankruptcy, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust.  Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10,
the Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Trust Agreement), shall have all
the powers granted to the Administrative Trustees and shall discharge all the
duties imposed upon the Administrative Trustees by this Trust Agreement.


 


Section 8.18           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 (provided such person is a U.S. Person) his or her
power for the purpose of executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and


 


(b)           The Administrative Trustees shall
have power to delegate from time to time to such of their number or to the
Depositor the doing of such things and the execution of such instruments either
in the name of the Trust or the names of the 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
this Trust Agreement, as set forth herein.


 


ARTICLE IX


 


TERMINATION, LIQUIDATION AND MERGER


 


Section 9.1             Termination
Upon Expiration Date.


 


Unless
earlier dissolved, the Trust shall automatically dissolve at 11:59 P.M.
New York City time on the Final Debenture Repayment Date (such time and date,
the 


 


46

















 


“Expiration Date”). Upon such a dissolution, after
satisfaction of the liabilities of the Trust, as provided by applicable law,
the Trust Property shall be distributed in accordance with Section 9.4.


 


Section 9.2             Early
Termination.


 


The
first to occur of any of the following events is an “Early Termination Event”,
the occurrence of which shall cause a dissolution of the Trust:


 


(a)           the occurrence of a Bankruptcy Event
in respect of, or the dissolution or liquidation of, the Holder of the Common
Securities;


 


(b)           the written direction to the Property
Trustee from the Depositor at any time to dissolve the Trust and, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, distribute Debentures to Securityholders in exchange for the Capital
Securities (which direction is optional and wholly within the discretion of the
Depositor);


 


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


 


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


 


Section 9.3             Termination.


 


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


 


Section 9.4             Liquidation.


 


(a)           If an Early Termination Event
specified in clause (a), (b) or (d) of Section 9.2 occurs or
upon the Expiration Date, the Trust shall be liquidated by the Trustees as
expeditiously as the Trustees determine to be possible by distributing, after
satisfaction or the making of reasonable provisions for the payment of
liabilities to creditors of the Trust as provided by applicable law, to each
Securityholder a Like Amount of Debentures, subject to Section 9.4(d).  Notice of liquidation shall be given by the
Property Trustee by first-class mail, postage prepaid mailed not later than 30
nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder’s address appearing in the Securities Register. All
notices of liquidation shall:


 


47
















 


(i)            state the CUSIP Number of the Trust
Securities;


 


(ii)           state the Liquidation Date;


 


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


 


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


 


(b)           Except where Section 9.2(c) or
9.4(d) applies, in order to effect the liquidation of the Trust and
distribution of the Debentures to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of
Debentures in exchange for the Outstanding Trust Securities Certificates.


 


(c)           Except where Section 9.2(c) or
9.4(d) applies, after the Liquidation Date, (i) the Trust Securities
will no longer be deemed to be Outstanding, (ii) certificates representing
a Like Amount of Debentures will be issued to Holders of Trust Securities
Certificates, upon surrender of such certificates to the Administrative
Trustees or their agent for exchange, (iii) if the Capital Securities are
then listed or traded on the New York Stock Exchange or other exchange,
interdealer quotation system or self-regulatory organization, the Depositor
shall use its best efforts to have the Debentures listed on such other
exchange, interdealer quotation system or self-regulatory organization as the
Capital Securities are then listed or traded, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Debentures, accruing interest at the rate provided for in the
Debentures from the last Distribution Date on which a Distribution was made on
such Trust Securities Certificates until such certificates are so surrendered
(and until such certificates are so surrendered, no payments of interest or
principal will be made to Holders of Trust Securities Certificates with respect
to such Debentures) and (v) all rights of Securityholders holding Trust
Securities will cease, except the right of such Securityholders to receive Debentures
upon surrender of Trust Securities Certificates.


 


(d)           In the event that, notwithstanding
the other provisions of this Section 9.4, whether because of an order for
dissolution entered by a court of competent jurisdiction or otherwise,
distribution of the Debentures in the manner provided herein is determined by
the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be wound-up, by the Property Trustee.  In such event, Securityholders will be
entitled to receive out of the assets of the Trust available for distribution
to Securityholders, after satisfaction of liabilities to creditors of the Trust
as provided by 


 


48

















 


applicable law, an
amount equal to the Liquidation Amount per Trust Security plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”).  If the Liquidation
Distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate Liquidation Distribution, then, subject
to the next succeeding sentence, the amounts payable by the Trust on the Trust
Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts).  The
Holder of the Common Securities will be entitled to receive Liquidation
Distributions upon any such winding-up or termination pro rata
(determined as aforesaid) with Holders of Capital Securities, except that, if a
Debenture Event of Default has occurred and is continuing, the Capital
Securities shall have a priority over the Common Securities.


 


Section 9.5             Mergers,
Consolidations, Amalgamations or Replacements of the Trust.


 


The
Trust may not merge with or into, consolidate, amalgamate, or be replaced by,
or convey, transfer or lease its properties and assets substantially as an
entirety to any corporation or other Person, except pursuant to this Article IX.
At the request of the Depositor, with the consent of the Administrative
Trustees and without the consent of the Holders of the Capital Securities, the
Property Trustee or the Delaware Trustee, the Trust may merge with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided that (i) such
successor entity either (a) expressly assumes all of the obligations of
the Trust with respect to the Capital Securities or (b) substitutes for
the Capital Securities other securities having substantially the same terms as
the Capital Securities (the “Successor Securities”) so long as the Successor
Securities rank the same as the Capital Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Depositor expressly appoints a trustee of such
successor entity possessing the same powers and duties as the Property Trustee
as the holder of the Debentures, (iii) the Successor Securities are listed
or traded, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or other organization on which
the Capital Securities are then listed or traded, if any, (iv) such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Capital 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 Capital Securities (including any Successor Securities) in any material
respect, (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 Depositor has
received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Capital Securities (including any Successor Securities) in any material
respect, and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such
successor entity will be required to register as an investment company 


 


49

















 


under the 1940 Act and (viii) the Depositor owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the Guarantee. Notwithstanding the foregoing, the Trust
shall not, except with the consent of Holders of 100% in Liquidation Amount of
the Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other Person or permit any other Person to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.


 


ARTICLE X


 


MISCELLANEOUS PROVISIONS


 


Section 10.1           Limitation
of Rights of Securityholders.


 


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


 


Section 10.2           Liability
of the Common Securityholder.


 


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


 


Section 10.3           Amendment.


 


(a)           This Trust Agreement may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, (ii) to
effect any amendment required in order to make this Trust Agreement consistent
with the description of the Trust Agreement contained in the Prospectus, dated August 11,
2008, as supplemented by the Prospectus Supplement, dated August 13, 2008,
relating to the Capital Securities or (iii) to modify, eliminate or add to
any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States federal income tax
purposes as a grantor trust at all times that any Trust Securities are Outstanding
or to ensure that the Trust will not be required to register as an investment
company under the 1940 Act; provided, however, that in the case of clause (i), 


 


50

















 


clause (ii) or
clause (iii), such action shall not adversely affect in any material respect
the interests of any Securityholder, and any such amendments of this Trust
Agreement shall become effective when notice thereof is given to the
Securityholders.


 


(b)           Except as provided in Section 10.3(c) hereof,
any provision of this Trust Agreement may be amended by the Trustees and the
Depositor (i) with the consent of Trust Securityholders representing not
less than a majority (based upon Liquidation Amounts) of the Trust Securities
then Outstanding and (ii) upon receipt by the Trustees of an Opinion of
Counsel to the effect that such amendment or the exercise of any power granted
to the Trustees in accordance with such amendment will not affect the Trust’s
status as a grantor trust for United States federal income tax purposes or the
Trust’s exemption from status of an investment company under the 1940 Act.


 


(c)           In addition to and notwithstanding
any other provision in this Trust Agreement, without the consent of each
affected Securityholder, this Trust Agreement may not be amended to (i) change
the amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right
of a Securityholder to institute suit for the enforcement of any such payment
on or after such date. Notwithstanding any other provision herein, without the
unanimous consent of the Securityholders, this paragraph (c) of this Section 10.3
may not be amended.


 


(d)           Notwithstanding any other provisions
of this Trust Agreement, no Trustee shall enter into or consent to any
amendment to this Trust Agreement which would cause the Trust to fail or cease
to qualify for the exemption from status of an investment company under the
1940 Act or fail or cease to be classified as a grantor trust for United States
federal income tax purposes.


 


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


 


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


 


(g)           Neither the Property Trustee nor the
Delaware Trustee shall be required to enter into any amendment to this Trust
Agreement which affects its own rights, duties or immunities under this Trust
Agreement. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers’ Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.


 


Section 10.4           Separability.


 


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


 


51

















 


Section 10.5           Governing
Law.


 


THIS
TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS,
THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND THE TRUST
SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES).


 


Section 10.6           Payments
Due on Non-Business Day.


 


If the
date fixed for any payment on any Trust Security shall be a day that is not a
Business Day, then such payment need not be made on such date but may be made
on the next succeeding day that is a Business Day (except as otherwise provided
in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.


 


Section 10.7           Successors.


 


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


 


Section 10.8           Headings.


 


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


 


Section 10.9           Reports,
Notices and Demands.


 


Any
report, notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Capital Securityholder, to such Capital Securityholder as such Securityholder’s
name and address may appear on the Securities Register; and (b) in the case
of the Common Securityholder or the Depositor, to TCF Financial Corporation,
200 Lake Street East, Wayzata, Minnesota 55391-1693, Attention: General
Counsel, facsimile no.: (952) 475-7975. Such notice, demand or other
communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.


 


Any
notice, demand or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Trust,
the Property Trustee, the Delaware Trustee or the Administrative Trustees shall
be given in 


 


52

















 


writing addressed (until another address is published
by the Trust) as follows:  (a) with
respect to the Property Trustee to Wilmington Trust Company, at the Corporate
Trust Office, Attention: Corporate Trust Administration; (b) with respect
to the Delaware Trustee, to Wilmington Trust Company, at the Corporate Trust
Office, with a copy to the Property Trustee at the address set forth in
Clause (a); and (c) with respect to the Administrative Trustees, to
them at the address above for notices to the Depositor, marked “Attention
Administrative Trustees of TCF Capital I.” Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.


 


Section 10.10         Agreement
Not to Petition.


 


Each
of the Trustees and the Depositor agree for the benefit of the Securityholders
that, until at least one year and one day after the Trust has been terminated
in accordance with Article X, they shall not file, or join in the filing
of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, “Bankruptcy Laws”) or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.10,
the Property Trustee agrees, for the benefit of Securityholders, that at the
expense of the Depositor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Depositor against
the Trust or the commencement of such action and raise the defense that the
Depositor has agreed in writing not to take such action and should be stopped
and precluded therefrom and such other defenses, if any, as counsel for the
Property Trustee or the Trust may assert. The provisions of this Section 10.10
shall survive the termination of this Trust Agreement.


 


Section 10.11         Trust
Indenture Act; Conflict with Trust Indenture Act.


 


(a)           This Trust Agreement is subject to
the provisions of the Trust Indenture Act that are required or deemed to be
part of this Trust Agreement 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 any provision hereof limits,
qualifies or conflicts with another provision hereof which is required or
deemed to be included in this Trust Agreement by any of the provisions of the
Trust Indenture Act, such required or deemed provision shall control. If any
provision of this Trust Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or excluded, as
the case may be.


 


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


 


53

















 


Section 10.12         Acceptance
of Terms of Trust Agreement, Guarantee and Indenture.


 


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


 


Section 10.13         Holders
are Parties.


 


Notwithstanding
that Holders have not executed and delivered this Trust Agreement or any counterpart
thereof, Holders shall be deemed to be parties to this Trust Agreement and
shall be bound by all of the terms and conditions hereof and of the Trust
Securities by acceptance and delivery of the Trust Securities.


 


Section 10.14         Treatment
of Trust as Grantor Trust and Debentures as Debt for Federal Income Tax
Purposes.


 


(a)           Holders of Trust Securities by virtue
of accepting delivery thereof, agree that the arrangement created by this Trust
Agreement shall be treated as a grantor trust under Subpart E of the Code for
United States federal income tax purposes and that the Depositor and the
Trustees shall be authorized to take any action consistent with such treatment.
Neither the Trustees nor the Depositor shall make any check-the-box election
for the Trust to be treated as an association under Treas. Reg. § 301.7701-3 or
take any other action inconsistent with the treatment of the Trust as a grantor
trust for all tax purposes.


 


(b)           Holders of Capital Securities, by
virtue of accepting delivery thereof, agree to treat the Debentures as debt for
United States federal income tax purposes.


 


Section 10.15         Counterparts.


 


This
Trust Agreement may contain more than one counterpart of the signature page and
this Trust Agreement may be executed by the affixing of the signature of each
of the Trustees of 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.


 


[Signature page follows.]


 


54

















 


	
   

  	
  TCF
  FINANCIAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James
  S. Broucek

  
	
   

  	
  Name:

  	
  James
  S. Broucek

  
	
   

  	
  Title:

  	
  Senior
  Vice President and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as Property
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael H. Wass

  
	
   

  	
  Name:

  	
  Michael
  H. Wass

  
	
   

  	
  Title:

  	
  Financial
  Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WILMINGTON
  TRUST COMPANY,

  
	
   

  	
  as
  Delaware Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael H. Wass

  
	
   

  	
  Name:

  	
  Michael
  H. Wass

  
	
   

  	
  Title:

  	
  Financial
  Services Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  James
  S. Broucek, as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
    /s/
  James S. Broucek

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Christy
  A. Powers, as Administrative Trustee

  
	
   

  	
   

  
	
   

  	
    /s/
  Christy A. Powers