EX-4.23



 





Exhibit 4.23



 




Form
of Amended and Restated Trust Agreement




Of




National
City Preferred Capital Trust III



among




National City Corporation,

as Depositor,




The Bank of New York Trust Company, N.A.,

as Property Trustee,




BNYM (Delaware),

as Delaware Trustee,




the Administrative Trustees (as named herein),




and the several Holders of the Trust Securities



Dated as of [     ]




 






 









 








Certain Sections of this Trust Agreement relating to Section 310 through 318, inclusive, of the Trust

Indenture Act of 1939:




	 	 	 
	Trust Indenture	 	Trust Agreement
	   Act Section	 	Section
	§ 310(a)(1)
	 	8.7
	(a)(2)
	 	8.7
	(a)(3)
	 	8.9
	(a)(4)
	 	2.7(a)(ii)
	(b)
	 	8.8
	(c)
	 	Not applicable
	§ 311(a)
	 	8.13
	(b)
	 	8.13
	§ 312(a)
	 	5.7
	(b)
	 	5.7
	(c)
	 	5.7
	§ 313(a)
	 	8.14(a), 8.14(b)
	(b)
	 	8.14(b)
	(c)
	 	12.8
	(d)
	 	8.14(c)
	§ 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, 12.8
	(c)
	 	8.1(d)
	(d)
	 	8.1(e), 8.3
	(e)
	 	Not applicable
	§ 316(a)
	 	Not applicable
	(a)(1)(A)
	 	Not applicable
	(a)(1)(B)
	 	5.16(e)
	(a)(2)
	 	Not applicable
	(b)
	 	5.16
	(c)
	 	6.7
	§ 317(a)(1)
	 	Not applicable
	(a)(2)
	 	Not applicable
	(b)
	 	5.9
	§ 318(a)
	 	12.11
	(b)
	 	12.11







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








Trust Agreement




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Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Defined Terms
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	Continuation of the Issuer Trust; Issuance of Trust Preferred Securities; and Related Matters
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Name
	 	 	18	 
	Section 2.2 Office of the Delaware Trustee; Principal Place of Business
	 	 	18	 
	Section 2.3 Initial Contribution of Trust Property; Organizational Expenses
	 	 	18	 
	Section 2.4 Issuance of the Trust Preferred Securities
	 	 	18	 
	Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Notes
	 	 	19	 
	Section 2.6 Declaration of Trust
	 	 	19	 
	Section 2.7 Authorization to Enter into Certain Transactions
	 	 	19	 
	Section 2.8 Assets of Issuer Trust
	 	 	23	 
	Section 2.9 Title to Trust Property
	 	 	23	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Payment Account
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Payment Account
	 	 	24	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Distributions; Redemption, Etc.
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Distributions
	 	 	24	 
	Section 4.2 Redemption
	 	 	26	 
	Section 4.3 Subordination of Common Securities
	 	 	29	 
	Section 4.4 Payment Procedures
	 	 	30	 
	Section 4.5 Tax Returns and Reports
	 	 	30	 
	Section 4.6 Payment of Expenses of the Issuer Trust
	 	 	31	 
	Section 4.7 Payments under Indenture or Pursuant to Direct Actions
	 	 	31	 
	Section 4.8 Combination of Stripped APEX and Normal APEX after Stock Purchase Date
	 	 	31	 






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	 	 	Page
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Trust Securities Certificates
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Initial Ownership
	 	 	32	 
	Section 5.2 The Trust Securities Certificates
	 	 	32	 
	Section 5.3 Execution and Delivery of Trust Securities Certificates
	 	 	32	 
	Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities Certificates
	 	 	33	 
	Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates
	 	 	34	 
	Section 5.6 Persons Deemed Securityholders
	 	 	34	 
	Section 5.7 Access to List of Securityholders’ Names and Addresses
	 	 	34	 
	Section 5.8 Maintenance of Office or Agency
	 	 	34	 
	Section 5.9 Appointment of Paying Agent
	 	 	34	 
	Section 5.10 Ownership of Common Securities by Depositor
	 	 	35	 
	Section 5.11 Book-Entry Trust Preferred Securities Certificates; Common Securities Certificate
	 	 	35	 
	Section 5.12 Notices to Clearing Agency
	 	 	38	 
	Section 5.13 Exchanges
	 	 	38	 
	Section 5.14 Remarketing Elections
	 	 	40	 
	Section 5.15 Definitive Trust Preferred Securities Certificates
	 	 	42	 
	Section 5.16 Rights of Securityholders; Waivers of Past Defaults
	 	 	42	 
	Section 5.17 CUSIP Numbers
	 	 	45	 
	Section 5.18 Remarketing Procedures
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Acts of Holders; Meetings; Voting
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 Limitations on Voting Rights
	 	 	46	 
	Section 6.2 Notice of Meetings
	 	 	48	 
	Section 6.3 Meetings of Securityholders of the Trust Preferred Securities
	 	 	48	 
	Section 6.4 Voting Rights
	 	 	48	 
	Section 6.5 Proxies, Etc
	 	 	48	 
	Section 6.6 Holder Action by Written Consent
	 	 	49	 
	Section 6.7 Record Date for Voting and Other Purposes
	 	 	49	 
	Section 6.8 Acts of Holders
	 	 	49	 
	Section 6.9 Inspection of Records
	 	 	50	 
	Section 6.10 All Votes Must Be Made by a United States Person
	 	 	50	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	Section 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee
	 	 	50	 
	Section 7.2 Representations and Warranties of Depositor
	 	 	51	 








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	 	 	Page
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Issuer Trustees
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 Certain Duties and Responsibilities
	 	 	51	 
	Section 8.2 Certain Notices
	 	 	53	 
	Section 8.3 Certain Rights of Property Trustee
	 	 	54	 
	Section 8.4 Not Responsible for Recitals or Issuance of Securities
	 	 	56	 
	Section 8.5 May Hold Securities
	 	 	56	 
	Section 8.6 Compensation; Indemnity; Fees
	 	 	56	 
	Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees and
Administrative Trustees
	 	 	57	 
	Section 8.8 Conflicting Interests
	 	 	57	 
	Section 8.9 Co-Trustees and Separate Trustee
	 	 	57	 
	Section 8.10 Resignation and Removal; Appointment of Successor
	 	 	59	 
	Section 8.11 Acceptance of Appointment by Successor
	 	 	60	 
	Section 8.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	61	 
	Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust
	 	 	61	 
	Section 8.14 Reports by Property Trustee
	 	 	61	 
	Section 8.15 Reports to the Property Trustee
	 	 	62	 
	Section 8.16 Evidence of Compliance with Conditions Precedent
	 	 	62	 
	Section 8.17 Number of Issuer Trustees
	 	 	62	 
	Section 8.18 Delegation of Power
	 	 	63	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Dissolution, Liquidation and Merger
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Perpetual Existence
	 	 	63	 
	Section 9.2 Early Termination
	 	 	63	 
	Section 9.3 Dissolution
	 	 	63	 
	Section 9.4 Liquidation
	 	 	64	 
	Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust
	 	 	65	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	Qualifying Treasury Securities
	 	 	 	 
	 
	 	 	 	 
	Section 10.1 Qualifying Treasury Securities
	 	 	66	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	Other APEX Related Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 11.1 Agreed Tax Treatment
	 	 	67	 







Trust Agreement





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	 	 	Page
	ARTICLE XII
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous Provisions
	 	 	 	 
	 
	 	 	 	 
	Section 12.1 Limitation of Rights of Holders
	 	 	67	 
	Section 12.2 Amendment
	 	 	67	 
	Section 12.3 Separability Clause
	 	 	69	 
	Section 12.4 Governing Law
	 	 	69	 
	Section 12.5 Payments Due on Non-Business Day
	 	 	70	 
	Section 12.6 Successors and Assigns
	 	 	70	 
	Section 12.7 Effect of Headings and Table of Contents
	 	 	70	 
	Section 12.8 Reports, Notices and Demands
	 	 	70	 
	Section 12.9 Agreement Not to Petition
	 	 	70	 
	Section 12.10 Trust Indenture Act; Conflict with Trust Indenture Act
	 	 	71	 
	Section 12.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture
	 	 	71	 






EXHIBITS:




Exhibit A — Form of Capital APEX Certificate

Exhibit B — Form of Common Securities Certificate

Exhibit C — Form of Normal APEX Certificate

Exhibit D — Form of Stripped APEX Certificate






Trust Agreement




-v- 









 





     This Amended and Restated Trust Agreement, dated as of [       ], among (i) National
City Corporation, a Delaware corporation (including any successors or assigns, the
"Depositor”), (ii) The Bank of New York Trust Company, N.A., a national banking
association organized and existing under the laws of the United States, as property trustee (in
such capacity, the “Property Trustee”), (iii) BNYM (Delaware), a Delaware banking
corporation (the “Delaware Trustee”), (iv) [       ], an individual, [       ], an individual, and [       ],
an individual, each of whose address is c/o National City Corporation, 1900 East Ninth Street,
Cleveland, Ohio 44114 (each, an “Administrative Trustee,” and together, the “Administrative
Trustees”) (the Property Trustee, the Delaware Trustee and the Administrative Trustees being
referred to collectively as the “Issuer Trustees”), and (v) the several Holders, as hereinafter
defined.



Recitals of the Depositor




     Whereas, the Depositor and the predecessor to the Delaware Trustee have heretofore
duly declared and established a statutory trust (the “Issuer Trust”) pursuant to the Delaware
Statutory Trust Act (as hereinafter defined) by entering into that certain Trust Agreement, dated
January 8, 2008, as amended by the omnibus Certificate of Amendment thereto filed with the
Secretary of State of the State of Delaware on January 15, 2008 changing the name of the Delaware
Trustee from “The Bank of New York (Delaware)” to “BNYM (Delaware)” (the “Original Trust
Agreement”), and by the execution and filing with the Secretary of State of the State of Delaware
the Certificate of Trust, filed on January 8, 2008, as amended by the omnibus Certificate of
Amendment thereto filed with the Secretary of State of the State of Delaware on January 15, 2008
changing the name of the Delaware Trustee from “The Bank of New York (Delaware)” to “BNYM
(Delaware)” (the “Certificate of Trust”).



     Whereas, the Depositor and the Issuer Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for, among other things,
(i) the issuance of the Common Securities by the Issuer Trust to the Depositor, (ii) the issuance
of Normal APEX by the Issuer Trust and their issuance and sale pursuant to the Underwriting
Agreement, (iii) the issuance of Stripped APEX and Capital APEX in Exchange for Normal APEX as
provided in Section 5.13, (iv) the acquisition by the Issuer Trust from the Depositor of all of the
right, title and interest in and to the Notes, (v) the entering into by the Issuer Trust with the
Depositor of the Stock Purchase Contract Agreement and, pursuant to the Stock Purchase Contracts
evidenced by that Agreement, the purchase by the Issuer Trust of shares of Preferred Stock on the
Stock Purchase Date, and (vi) the appointment of the Property Trustee and Administrative Trustees.



     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;



Trust Agreement




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




     (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 “hereby”, “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.



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



     “Act” has the meaning specified in Section 6.8.



     “Actual/360 Basis” means, for purposes of calculating the rate of Distributions, such rate
calculated on the basis of a 360-day year and the number of days actually elapsed.



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



     “Additional Distribution Date” means each [       ], [       ], [       ] and [       ] commencing on the
later of the first such date on which Stripped APEX are Outstanding and [       ].



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



     “Additional Subordinated Notes” has the meaning specified in the Stock Purchase Contract
Agreement.



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



     “Affected Series” means, (i) if a proposed action or inaction or Event of Default or other
relevant circumstance relates solely and specifically to Trust Property, each Series for which such
Trust Property is a Corresponding Asset, (ii) if a proposed action or inaction or Event of Default
or other relevant circumstance does not relate specifically and solely to Trust Property, then each
Series that could reasonably be expected to be affected by the action proposed or inaction or Event
of Default, and (iii) for purposes of Section 5.16 at any time, the Series of Trust Preferred
Securities for which Notes at such time are Corresponding Assets (that is, (A) for purposes of
Section 5.16(b) and Section 5.16(c), the Capital APEX and, until the Remarketing Settlement Date,
the Normal APEX, (B) for purposes of Section 5.16(d), the Normal APEX and the Stripped APEX, and
(C) for purposes of Section 5.16(e), (I) if the Event of Default is of the type referred to in
clause (a) of the definition of that term, the Capital APEX and, until the Remarketing Settlement
Date, the Normal APEX, (II) if the Event of Default is of the type described in paragraph (b) of
the definition of that term, the Normal APEX and Stripped APEX, (III) if the Event of Default is of
the type described in clause (d) of the definition of that term, the Series of Trust Preferred
Securities that were to have been redeemed and (IV) if the Event of Default is of the type
described in any of clause (c), (e) or (f) of the definition of that term, each Series of Trust
Preferred Securities then outstanding).



Trust Agreement





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     “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.



     “Agent Agreement” has the meaning specified in Section 5.4.



     “APEX” means each of the Normal APEX, the Stripped APEX and the Capital APEX.



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




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




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



     “Bankruptcy Laws” has the meaning specified in Section 12.9.



     “Base Indenture” means the Junior Subordinated Indenture, dated as of November 3, 2006,
between the Depositor and The Bank of New York Trust Company, N.A., as amended or supplemented from
time to time.



     “Board of Directors” means either the board of directors of any Person or any committee of
that board of directors duly authorized to act.



     “Book-Entry Transfer” means:




     (a) as to Trust Preferred Securities represented by Book-Entry Trust Preferred
Securities Certificates and as to Notes represented by global certificates that settle and
clear through a Clearing Agency’s system, transfer or delivery in accordance with the rules
and procedures of the applicable Clearing Agency (including, in the case of DTC if it is the
Clearing Agency, book-entry deliveries through DTC’s Deposit/Withdrawal at Custodian DWAC
system); and



Trust Agreement





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     (b) as to treasury securities (including Qualifying Treasury Securities), transfer or
delivery in accordance with the regulations of the United States Department of the Treasury
governing book-entry treasury securities, including those currently at 12 C.F.R. Part 357.



     “Book-Entry Trust Preferred Securities” means Trust Preferred Securities, ownership and
transfers of which shall be made through book entries by a Clearing Agency as provided in
Section 5.11.



     “Book-Entry Trust Preferred Securities Certificate” means a Trust Preferred Securities
Certificate evidencing ownership of Book-Entry Trust Preferred Securities.



     “Business Day” means any day other than a Saturday, Sunday, or any other day on which banking
institutions and trust companies in New York, New York, Cleveland, Ohio or Wilmington, Delaware are
permitted or required by any applicable law to close.



     “Capital APEX” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of
$1,000 per Capital APEX and having the rights provided for Capital APEX in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as provided herein.



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



     “Capital APEX Distribution Date” means (i) each [       ] and [       ], commencing on the later of
the first such date on which Capital APEX are Outstanding and [       ], continuing through and
including the last such date to occur prior to the Remarketing Date for a Successful Remarketing,
and (ii) thereafter for so long as Capital APEX remain outstanding, each day on which interest is
payable on the Notes.



     “Capital APEX Distribution Rate” means (i) from the Closing Date to but not including the
Remarketing Settlement Date for a Successful Remarketing, [       ]% per annum (calculated on a 30/360
Basis), and (ii) thereafter, the rate per annum, whether a fixed rate or a rate determined pursuant
to a formula, determined pursuant to the Remarketing Agreement in connection with the Remarketing
(it being understood and agreed that, if there is not a Successful Remarketing of the Notes, the
Capital APEX Distribution Rate pursuant to clause (i) shall remain in effect for so long as Capital
APEX are outstanding).



     “Capital APEX Redemption Date” means, with respect to any Capital APEX to be redeemed, the
date fixed for such redemption by or pursuant to this Trust Agreement; provided, however, that
(i) each Note Redemption Date shall be a Capital APEX Redemption Date for a Like Amount of Capital
APEX and (ii) if a Successful Remarketing occurs, the first Business Day after the Stock Purchase
Date shall be a Capital APEX Redemption Date for a redemption in kind pursuant to Section 4.2(d).



     “Capital APEX Redemption Price” means, with respect to a redemption of Capital APEX for a
Redemption Price payable in cash pursuant to Section 4.2(c) and the related Capital APEX Redemption
Date, the redemption price for a Like Amount of Notes redeemed on such date in accordance with the
Indenture.



     “Capital Treatment Event” has the meaning specified in the Indenture Supplement.



     “Certificate” means a Capital APEX Certificate, a Normal APEX Certificate, a Stripped APEX
Certificate or a Common Securities Certificate.



Trust Agreement





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     “Certificate Custodian” means, with respect to the Trust Preferred Securities of a Series, the
Securities Registrar, as custodian with respect to the Book-Entry Trust Preferred Securities
Certificates representing the Trust Preferred Securities of such Series, or any successor entity
thereto.



     “Certificate Depositary Agreement” means the agreement among the Issuer Trust, the Paying
Agent and DTC, as the initial Clearing Agency, dated as of the Closing Date.



     “Certificate of Designation” means the “Certificate of Designation of Rights and Preferences
of the Non-Cumulative Perpetual Preferred Stock, Series [       ], $100,000 Liquidation Preference Per
Share of National City Corporation”, dated [       ], fixing the designations, voting powers,
preferences and relative, participating and other special rights, and qualifications, limitations
and restrictions thereof of the shares of the Preferred Stock as a new series of the Depositor’s
preferred stock.



     “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 Exchange Act. DTC 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 Time of Delivery.



     “Collateral Account” has the meaning specified in the Collateral Agreement.



     “Collateral Agent” means Wilmington Trust Company, as Collateral Agent under the Collateral
Agreement until a successor Collateral Agent shall have been appointed and qualified pursuant to
the applicable provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall mean
the Person who is then the Collateral Agent thereunder.



     “Collateral Agreement” means the Collateral Agreement, dated as of the date hereof, among the
Depositor, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Issuer Trust
(acting through the Property Trustee) and the Securities Registrar for the APEX, as amended from
time to time.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act 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 B.



     “Common Security” means a beneficial interest in the Issuer Trust, having a Liquidation Amount
of $1,000 and having the rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.



     “Contingent Disposition Election” has the meaning specified in Section 5.14(a)(ii).



     “Contingent Exchange Election” has the meaning specified in Section 5.14(a)(i).



Trust Agreement





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     “Contract Payments” has the meaning specified in the Stock Purchase Contract Agreement.



     “Corporate Trust Office” means (i) when used with respect to the Property Trustee, the
Corporate Trust Office of the Property Trustee located in New York, New York, (ii) when used with
respect to the Note Trustee, the Corporate Trust Office of the Note Trustee located in New York,
New York, and (iii) when used with respect to the Securities Registrar, its Corporate Trust
Administration office located in Wilmington, Delaware.



     “Corresponding Assets” means, with respect to each $1,000 Liquidation Amount of Trust
Securities:




     (a) in the case of Normal APEX and Common Securities:




     (i) from the Time of Delivery to but not including the Remarketing Settlement Date for
a Successful Remarketing, $1,000 principal amount of Pledged Notes and a 1/100th
interest in a Stock Purchase Contract;




     (ii) from and including the Remarketing Settlement Date for a Successful Remarketing to
but not including the Stock Purchase Date, the portion of the National City Bank Deposit
made with the net proceeds of each $1,000 principal amount of Pledged Notes sold in such
Successful Remarketing on such Remarketing Settlement Date and a 1/100th interest
in a Stock Purchase Contract;




     (iii) from and including the Stock Purchase Date and thereafter for so long as Normal
APEX are outstanding, 1/100th of a share of Preferred Stock and an amount of
Additional Subordinated Notes initially equal to 1/100th of the amount of
deferred an unpaid Contract Payments, if any, on a Stock Purchase Contract as of the Stock
Purchase Date; and




     (iv) from and including the Stock Purchase Date if there shall have been a Failed
Remarketing, an amount of Additional Subordinated Notes equal to the accrued and unpaid
interest on $1,000 principal amount of Pledged Notes as of the Stock Purchase Date;




     (b) in the case of Stripped APEX:




     (i) from the date of issuance for each Stripped APEX to but not including the Stock
Purchase Date, $1,000 principal amount of Pledged Treasury Securities and a
1/100th interest in a Stock Purchase Contract; and




     (ii) from and including the Stock Purchase Date and thereafter for so long as Stripped
APEX are outstanding, 1/100th of a share of Preferred Stock, subject to
Section 4.8, and an amount of Additional Subordinated Notes initially equal to
1/100th of the amount of deferred an unpaid Contract Payments, if any, on a Stock
Purchase Contract as of the Stock Purchase Date; and




     (c) in the case of Capital APEX:




     (i) from the date of issuance for each Capital APEX, $1,000 principal amount of Notes,
subject to Section 5.14; and



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     (ii) from and including the Stock Purchase Date if there shall have been a Failed
Remarketing, an amount of Additional Subordinated Notes initially equal to the accrued and
unpaid interest on $1,000 principal amount of Pledged Notes as of the Stock Purchase Date.



     “Custodial Agent” means Wilmington Trust Company, as Custodial Agent under the Collateral
Agreement until a successor Custodial Agent shall have become such pursuant to the applicable
provisions of the Collateral Agreement, and thereafter “Custodial Agent” shall mean the Person who
is then the Custodial Agent thereunder.



     “Custody Account” has the meaning specified in the Collateral Agreement.



     “Deferred Contract Payment Amount” means, at any time for each $100,000 stated amount of Stock
Purchase Contracts, the amount of the Contract Payments accrued on such stated amount that has been
deferred and not paid by reason of the Depositor’s exercise of its right to defer payment of
Contract Payments pursuant to Section 2.7 of the Stock Purchase Contract Agreement, together with
interest accrued on such amount in accordance with the terms of the Stock Purchase Contract
Agreement, including after the Stock Purchase Date any Additional Subordinated Notes issued in
respect thereof.



     “Deferred Note Interest Amount” means, at any time for each $1,000 principal amount of Notes,
the amount of interest accrued on such principal amount that has been deferred and not paid by
reason of the Depositor’s exercise of its right to defer payment of interest pursuant to
Section 3.11 of the Base Indenture or Section 2.5 of the Indenture Supplement, together with
interest accrued on such amount in accordance with the terms of the Indenture, including after the
Stock Purchase Date following a Failed Remarketing any Additional Subordinated Notes issued in
respect thereof.



     “Definitive Trust Preferred Securities Certificates” means either or both (as the context
requires) of (i) Trust Preferred Securities Certificates issued as Book-Entry Trust Preferred
Securities Certificates as provided in Section 5.11, and (ii) Trust Preferred Securities
Certificates issued in certificated, fully registered form as provided in Section 5.15.



     “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.



     “Depositor Order” means the written order signed in the name of the Depositor by the Chairman
of the Board of Directors, the Vice Chairman of the Board of Directors, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary of
the Depositor, and delivered to the Trustee.



     “Direct Action” has the meaning specified in Section 5.16(c) and Section 5.16(d).



     “Distribution Date” means an Additional Distribution Date, a Capital APEX Distribution Date or
a Regular Distribution Date.



     “Distribution Period” means:



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     (i) with respect to Normal APEX, Stripped APEX and Common Securities, each period of
time beginning on a Regular Distribution Date (or the Closing Date in the case of the
Distribution Period ending in [       ]) and continuing to but not including the next succeeding
Regular Distribution Date for such Series; and




     (ii) with respect to Capital APEX, each period of time beginning on a Capital APEX
Distribution Date (or the Closing Date in the case of the Distribution Period ending in [
]) and continuing to but not including the next succeeding Capital APEX Distribution Date.



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



     “Dividend
Payment Date” has the meaning specified in the Certificate of Designation.



     “DTC” means The Depository Trust Company.



     “Early Settlement Event” has the meaning specified in the Indenture Supplement.



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



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




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




     (b) the occurrence of a Preferred Stock Default; or




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




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




     (e) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Issuer Trustees in this Trust Agreement (other than those specified in
clause (c) or (d) 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 Issuer Trustees and to
the Depositor by the Holders of at least 25% in aggregate Liquidation Amount of the
Outstanding Trust Preferred 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




     (f) 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 60 days thereof.



     “Excess Proceeds Distribution” means the Distribution that each Holder of Stripped APEX shall
receive on each Additional Distribution Date on a pro rata basis from the Issuer Trust of the
amount by which the proceeds of the Qualifying Treasury Securities pledged by the Issuer Trust in
respect of Stock Purchase Contracts maturing at least one Business Day prior to such date exceed
the amount required to purchase replacement Qualifying Treasury Securities.



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     “Exchange” has the meaning specified in Section 5.13(a).



     “Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto,
in each case as amended from time to time.



     “Exchange Period” means the Collateral Agent’s and the Securities Registrar’s normal business
hours on any Business Day other than (i) any day during the 15 day period ending on [       ], [       ], [
] or [       ] and (ii) the period from 3:00 P.M., New York City time, on the second Business Day
before the first day of any Remarketing Period to but not including the Business Day after the last
day of that Remarketing Period.



     “Failed Remarketing” has the meaning specified in the Indenture Supplement.



     “Federal Reserve Board” 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 Agreement the Federal
Reserve is not existing and performing the duties now assigned to it, then the bodies performing
such duties at such time, or the Federal Reserve Bank of Cleveland, or any successor Federal
reserve bank having primary jurisdiction over the Depositor.



     “Final Remarketing” has the meaning specified in the Indenture Supplement.



     “Guarantee Agreement” means the Guarantee Agreement executed and delivered by the Depositor
and The Bank of New York Trust Company, N.A., as guarantee trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders of the Trust
Preferred Securities, as amended from time to time.



     “Indemnified Person” has the meaning specified in Section 8.6(c).



     “Indenture” means the Base Indenture and the Indenture Supplement, taken together.



     “Indenture Supplement” means the Supplemental Indenture to the Base Indenture, dated as of [
], between the Depositor and the Note Trustee, as amended or supplemented from time to time.



     “Investment Company Event” has the meaning specified in the Indenture Supplement.



     “Issuer Trust” means the Delaware statutory trust known as “National City Preferred Capital
Trust III”, which was created under the Delaware Statutory Trust Act pursuant to the Original
Trust Agreement and the filing of the Certificate of Trust, and continued pursuant to this Trust
Agreement.



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



     “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 distribution of Notes to Holders of Normal APEX, Capital APEX or
Common Securities in connection with a dissolution or liquidation of the Issuer Trust or a
redemption in kind of Capital APEX pursuant to Section 4.2(d), Notes having a principal



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amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom
such Notes are distributed; provided, however, that if the Depositor elects pursuant to
Section 5.3(b) of the Indenture Supplement to remarket the Notes in the form of New Trust
Preferred Securities, “Like Amount” means New Trust Preferred Securities having a
liquidation amount equal to the Liquidation Amount of the Trust Securities of the Holder to
whom such New Trust Preferred Securities are distributed;




     (b) with respect to a distribution of Pledged Treasury Securities to Holders of
Stripped APEX in connection with a dissolution or liquidation of the Issuer Trust or
termination of the Stock Purchase Contracts, Pledged Treasury Securities having a principal
amount equal to the Liquidation Amount of the Stripped APEX to whom such Pledged Treasury
Securities are distributed;




     (c) with respect to a distribution of Preferred Stock or fractional interests in
Preferred Stock to Holders of Trust Securities in connection with a dissolution or
liquidation of the Trust, Preferred Stock or a fractional interest in a share of Preferred
Stock (which may be effected by the Issuer Trust through the creation of depositary shares)
having a liquidation preference equal to the Liquidation Amount of the Trust Securities of
the Holder to whom such shares of Preferred Stock or a fractional interest in a share of
Preferred Stock (including through a depositary share) are distributed;




     (d) with respect to any distribution of Additional Amounts to Holders of Normal APEX,
Capital APEX or Common Securities, Notes having a principal amount equal to the Liquidation
Amount of the Normal APEX, Capital APEX or Common Securities in respect of which such
distribution is made;




     (e) with respect to a redemption of Preferred Stock, 1/100th of a share of
Preferred Stock for each Normal APEX or Common Security;




     (f) with respect to an Exchange of Normal APEX and Qualifying Treasury Securities for
Stripped APEX and Capital APEX pursuant to Section 5.13(b), a number of Stripped APEX and a
number of Capital APEX in each case equal to the number of Normal APEX included in such
Exchange (e.g., if 1,000 Normal APEX are being Exchanged, the Holder will receive 1,000
Stripped APEX and 1,000 Capital APEX in accordance with and subject to Section 5.13);




     (g) with respect to an Exchange of Stripped APEX and Capital APEX for Normal APEX and
Qualifying Treasury Securities, a number of Normal APEX equal to the number of Stripped APEX
and the number of Capital APEX being Exchanged (e.g., if 1,000 Stripped APEX and 1,000
Capital APEX are being Exchanged, the Holder will receive upon the Exchange 1,000 Normal
APEX together with $1,000,000 principal amount of Qualifying Treasury Securities released
from the Pledge, in accordance with and subject to Section 5.13(e));




     (h) with respect to Notes (including Pledged Notes as applicable) being deposited or
delivered in connection with an Exchange, Notes having a principal amount equal to $1,000
for each Normal APEX involved in the Exchange;




     (i) with respect to Section 5.13(c), $1,000 principal amount of Notes for each $1,000
Liquidation Amount of Trust Preferred Securities of each Affected Series; and



Trust Agreement




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     (j) with respect to Section 5.13(d), 1/100th of a Stock Purchase Contract
with a stated amount of $100,000 for each $1,000 Liquidation Amount of Trust Preferred
Securities of the Affected Series.



     “Liquidation Amount” means the stated amount of $1,000 per Trust Security.



     “Liquidation Date” means the date on which the assets of the Issuer Trust are distributed to
Holders pursuant to Section 9.4.



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



     “Majority in Liquidation Amount” means as to one or more Series of Trust Securities, except as
provided by the Trust Indenture Act, Trust Securities of one or more Series representing more than
50% of the aggregate Liquidation Amount of all Outstanding Trust Securities of one or more Series.



     “Make-Whole Amount” has the meaning specified in the Indenture Supplement.



     “National City Bank Deposit” has the meaning specified in the Stock Purchase Contract
Agreement.



     “New Trust Preferred Securities” means, in the event the Depositor elects to remarket the
Notes in the form of trust preferred securities pursuant to Section 5.2(d) of the Indenture
Supplement, trust preferred securities issued by a Delaware statutory trust, all of the common
securities of which are directly or indirectly owned by the Depositor.



     “Normal APEX” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of
$1,000 and having the rights provided for Normal APEX in this Trust Agreement, including the right
to receive Distributions and a Liquidation Distribution as provided herein.



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



     “Normal APEX Distribution Rate” means (i) from the Closing Date to but not including the later
of the Regular Distribution Date of [       ] and the Stock Purchase Date (and for each related
Distribution Period), [ ]% per annum (calculated on a 30/360 Basis) and (ii) thereafter, for each
Distribution Period and related Regular Distribution Date, Three-Month LIBOR for such Distribution
Period plus [       ]% (calculated on an Actual/360 Basis).



     “Normal APEX Redemption Date” means, with respect to any Normal APEX to be redeemed, the date
fixed for such redemption by or pursuant to this Trust Agreement; provided, however, that each
Preferred Stock Redemption Date shall be a Redemption Date for a like amount of Normal APEX.



     “Normal APEX Redemption Price” means, with respect to any Normal APEX and Common Securities
and the related Normal APEX Redemption Date, the redemption price for a Like Amount of Preferred
Stock redeemed in accordance with the Certificate of Designation.



     “Note Event of Default” means any “Event of Default” specified in Section 5.1 of the Base
Indenture, as supplemented by the Indenture Supplement.



     “Note Redemption Date” means, with respect to any Notes to be redeemed under the Indenture,
the date fixed for redemption of such Notes under the Indenture.



Trust Agreement





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     “Note Redemption Price” means, with respect to any Notes to be redeemed under the Indenture,
the Redemption Price for such redemption and related Note Redemption Date determined in accordance
with the Indenture.



     “Note Trustee” means The Bank of New York Trust Company, N.A., solely in its capacity as
trustee pursuant to the Indenture and not in its individual capacity, or its successor in interest
in such capacity, or any successor trustee appointed as provided in the Indenture.



     “Notes” means the $[       ] initial aggregate principal amount of the Depositor’s Remarketable [
]% Junior Subordinated Notes due [       ] issued pursuant to the Indenture.



     “Notice of Contingent Disposition Election” has the meaning specified in Section 5.14(f).



     “Notice of Contingent Exchange Election” has the meaning specified in Section 5.14(d)(i).



     “Officers’ Certificate” means a certificate signed by the Chairman and Chief Executive
Officer, President and Vice President, and by the Treasurer, an Associate Treasurer, an Assistant
Treasurer, the Controller, Secretary or an Assistant Secretary of the Depositor, and delivered to
the appropriate Trustee. One of the officers signing an Officer’s Certificate given pursuant to
Section 8.16 shall be the principal executive, financial or accounting officer of the Depositor.
Any Officers’ Certificate delivered with respect to compliance with a condition or covenant
provided for in this Trust Agreement shall include:




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




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




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




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



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer
Trust, the Property Trustee or the Depositor, but not an employee of the Trust or the Property
Trustee, and who shall be reasonably acceptable to the Property Trustee.



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



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




     (a) Trust Securities of such Series theretofore canceled by the Securities Registrar or
delivered to the Securities Registrar for cancellation;




     (b) Trust Securities of such Series for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any Paying
Agent;



Trust Agreement





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provided, however, 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 of such Series that have been paid or in exchange for or in lieu
of which other Trust Preferred Securities have been executed and delivered 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 Trust Preferred Securities of a Series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Trust Preferred Securities of such
Series 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 Trust Preferred Securities of such Series that a Responsible Officer of
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 outstanding Trust Preferred Securities of such Series are owned
by the Depositor, one or more of the Issuer Trustees, and/or any such Affiliate. Trust Preferred
Securities of a Series so owned that 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 Trust Preferred 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 Book-Entry Trust Preferred Securities
as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the
Owner, then as reflected in the records of a Person maintaining an account with such Clearing
Agency (directly or indirectly, in accordance with the rules of such Clearing Agency).



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



     “Payment Account” means a segregated non-interest-bearing corporate trust account maintained
by the Property Trustee initially with Wilmington Trust Company (in its corporate capacity and not
as Paying Agent), in its trust department for the benefit of the Securityholders in which all
amounts paid in respect of the Notes 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.
After the Stock Purchase Date, the Payment Account may at any time be established with any
commercial bank by the Property Trustee.



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



     “Pledge” means the pledge under the Collateral Agreement of Notes or Qualifying Treasury
Securities, as the case may be.



     “Pledged Notes” has the meaning specified in the Collateral Agreement.



     “Pledged Treasury Securities” has the meaning specified in the Collateral Agreement.



     “Predecessor Capital APEX Certificate” of any particular Capital APEX Certificate means every
previous Capital APEX Certificate evidencing all or a portion of the rights and obligations of the
Issuer Trust and the Holder under the Capital APEX evidenced thereby; and, for the purposes of this
definition,



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any Capital APEX Certificate delivered under Section 5.5 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Capital APEX Certificate shall be deemed to evidence the same
rights and obligations of the Depositor and the Holder as the mutilated, destroyed, lost or stolen
Capital APEX Certificate.




     “Predecessor Certificate” means a Predecessor Normal APEX Certificate, a Predecessor Stripped
APEX Certificate or a Predecessor Capital APEX Certificate, as applicable.



     “Predecessor Normal APEX Certificate” of any particular Normal APEX Certificate means every
previous Normal APEX Certificate evidencing all or a portion of the rights and obligations of the
Issuer Trust and the Holder under the Normal APEX evidenced thereby; and, for the purposes of this
definition, any Normal APEX Certificate delivered under Section 5.5 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Normal APEX Certificate shall be deemed to evidence the same
rights and obligations of the Depositor and the Holder as the mutilated, destroyed, lost or stolen
Normal APEX Certificate.



     “Predecessor Stripped APEX Certificate” of any particular Stripped APEX Certificate means
every previous Stripped APEX Certificate evidencing all or a portion of the rights and obligations
of the Depositor and the Holder under the Stripped APEX evidenced thereby; and, for the purposes of
this definition, any Stripped APEX Certificate delivered under Section 5.5 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Stripped APEX Certificate shall be deemed to
evidence the same rights and obligations of the Depositor and the Holder as the mutilated,
destroyed, lost or stolen Stripped APEX Certificate.



     “Preferred Stock” means the Non-Cumulative Perpetual Preferred Stock, Series E, $100,000
liquidation preference per share, of the Depositor.



     “Preferred Stock Default” means the failure of the Depositor to comply in any material respect
with any of its obligations (i) under the Stock Purchase Contract Agreement or (ii) as issuer of
the Preferred Stock, including in the Statement of Designation, the Depositor’s certificate of
incorporation, or arising under applicable law.



     “Preferred Stock Redemption Date” means, with respect to any shares of Preferred Stock to be
redeemed under the Statement of Designation, the date fixed for redemption of such shares under the
Statement of Designation.



     “Proceeds” has the meaning specified in the Collateral Agreement.



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



     “Prospectus” means the prospectus, dated [       ], of the Depositor relating to the offering of
the Normal APEX, as supplemented by the prospectus supplement, dated [       ].



     “Qualifying Treasury Securities” has the meaning specified in Section 10.1.



     “Rating Agency Event” has the meaning specified in the Indenture Supplement.



     “Recombination Notice and Request” has the meaning specified in Section 5.13(d)(ii).



Trust Agreement





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     “Redemption Date” means a Normal APEX Redemption Date or a Capital APEX Redemption Date, as
applicable.



     “Redemption Price” means, (i) with respect to a redemption of Normal APEX, the Normal APEX
Redemption Price, and (ii) with respect to a redemption of Capital APEX, the Capital APEX
Redemption Price.



     “Reference Date” has the meaning specified in Section 10.1.



     “Regular Distribution Date” means:




     (a) each [       ] and [       ] occurring prior to and including the later of [       ] and the
Stock Purchase Date, commencing [       ] (or, in the case of Stripped APEX, the first such date
on which Stripped APEX are outstanding);




      (b) after
the later of [       ] and the Stock Purchase Date, each [       ], [       ], [       ] and
[       ]; and




     (c) the Stock Purchase Date if not otherwise a Regular Distribution Date;


provided, however, that the last Regular Distribution Date for the Stripped APEX shall be the Stock
Purchase Date or, if later, the date on which no Additional Subordinated Notes issued in respect of
any Deferred Contract Payment Amount are outstanding.




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



     “Remarketing” has the meaning specified in the Indenture Supplement.



     “Remarketing Agent” means, as to a Remarketing and Remarketing Agreement, the remarketing
agent and any successor or replacement remarketing agent appointed by the Depositor.



     “Remarketing Agent’s Fee” means, as to the Remarketing Agent and a Remarketing, the fee
provided for in the Remarketing Agreement.



     “Remarketing Agreement” means the Remarketing Agreement to be entered into prior to the first
Remarketing among the Depositor, the Issuer Trust (acting through the Property Trustee) and the
Remarketing Agent, as amended or supplemented from time to time.



     “Remarketing Period” has the meaning specified in the Indenture Supplement.



     “Remarketing Settlement Date” has the meaning specified in the Indenture Supplement.



     “Reset Rate” has the meaning specified in the Indenture Supplement (and is the interest rate
applicable to the Notes and the Capital APEX Distribution Rate commencing on the Remarketing
Settlement Date).



     “Responsible Officer” means, with respect to any Issuer Trustee other than an Administrative
Trustee, any officer within the corporate trust department of the Issuer Trustee, including any
vice president, assistant vice president, assistant treasurer, trust officer or any other officer
of the Issuer Trustee who customarily performs functions similar to those performed by the Persons
who at the time shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such



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person’s knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Trust Agreement.




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



     “Securities Intermediary” means Wilmington Trust Company, as Securities Intermediary under the
Collateral Agreement until a successor Securities Intermediary shall have become such pursuant to
the applicable provisions of the Collateral Agreement, and thereafter “Securities Intermediary”
shall mean such successor or any subsequent successor who is appointed pursuant to the Collateral
Agreement.



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



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



     “Series” means each of the Normal APEX, the Stripped APEX, the Capital APEX and the Common
Securities, each as a series of beneficial interests in the Issuer Trust.



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



     “Stock Purchase Contract” has the meaning specified in the Stock Purchase Contract Agreement.



     “Stock Purchase Contract Agreement” means the Stock Purchase Contract Agreement, dated as of
the date hereof, between the Depositor and the Property Trustee (acting on behalf of the Issuer
Trust).



     “Stock Purchase Date” has the meaning specified in the Stock Purchase Contract Agreement.



     “Stripped APEX” means a beneficial interest in the Issuer Trust, having a Liquidation Amount
of $1,000 and having the rights provided for Stripped APEX in this Trust Agreement, including the
right to receive Distributions and a Liquidation Distribution as provided herein.



     “Stripped APEX Certificate” means a certificate evidencing ownership of Stripped APEX,
substantially in the form attached as Exhibit D.



     “Stripped APEX Distribution Rate” means [       ]% per annum, calculated on a 30/360 Basis.



     “Stripping Notice and Request” has the meaning specified in Section 5.13(b)(iii).



     “Successful” has the meaning specified in the Indenture Supplement.



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



     “Tax Event” has the meaning specified in the Indenture Supplement.



Trust Agreement





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     “30/360 Basis” means, for purposes of calculating a rate for Distributions, such rate
calculated on the basis of a 360-day year consisting of twelve 30-day months.



     “Three-Month LIBOR” means, for any Distribution Period commencing on or after the Stock
Purchase Date, “Three-Month LIBOR” for the corresponding Dividend Period as defined in and
determined pursuant to the Certificate of Designation.



     “Time of Delivery” has the meaning specified in the Underwriting Agreement.



     “Transaction Agreements” means each of the Stock Purchase Contract Agreement, the Collateral
Agreement, the Underwriting Agreement, the Notes, the Certificate Depositary Agreement, the
Remarketing Agreement, the Guarantee Agreement, the Indenture, the Agent Agreement and any other
agreement determined by any Issuer Trustee to be appropriate in exercising the authority, express
or implied, otherwise granted to the Issuer Trustees under 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 Preferred Securities” means the Normal APEX, the Stripped APEX and the Capital APEX.



     “Trust Preferred Securities Certificate” means a Normal APEX Certificate, a Stripped APEX
Certificate or a Capital APEX Certificate.



     “Trust Property” means (a) the Notes for so long as they are owned by the Issuer Trust in
accordance with this Trust Agreement, (b) the Stock Purchase Contracts, (c) the Preferred Stock
once acquired by the Issuer Trust pursuant to the Stock Purchase Contracts, (d) treasury securities
(that are required to be Qualifying Treasury Securities when delivered) delivered to the Property
Trustee (or the Collateral Agent) pursuant to Section 5.13 or Section 5.14, (e) Additional
Subordinated Notes, if any, issued on the Stock Purchase Date in respect of Deferred Contract
Payment Amounts or Deferred Note Interest Amounts, (f) the rights of the Issuer Trust under the
Transaction Agreements, and (g) all proceeds and rights in respect of the foregoing and any other
property and assets for the time being held or deemed to be held by the Issuer Trust or the
Property Trustee on behalf of the Issuer Trust pursuant to the Trust Agreement.



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



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



     “Underwriting Agreement” means the Underwriting Agreement, dated [       ], among the Issuer
Trust, the Depositor, and the underwriters named therein.



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     “United States Person” means a “United States Person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.



ARTICLE II




Continuation of the Issuer Trust; Issuance of Trust Preferred

Securities; and Related Matters




     Section 2.1 Name.



     The
trust continued hereby shall be known as “National City
Preferred Capital Trust III,” as
such name may be modified from time to time by the Administrative Trustees following written notice
to the Holders and the other Issuer Trustees, in which name the Issuer Trustees may conduct the
business of the Issuer Trust, make and execute contracts and other instruments on behalf of the
Issuer Trust and sue and be sued.



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



     The address of the Delaware Trustee in the State of Delaware is BNYM (Delaware), White Clay
Center, Route 273, New Castle County, Newark, Delaware 19711 or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the Depositor, the Property
Trustee and the Administrative Trustees. The principal executive office of the Issuer Trust is c/o
National City Corporation, 1900 East Ninth Street, Cleveland, Ohio 44114.



     Section 2.3 Initial Contribution of Trust Property; Organizational Expenses.



     The Property Trustee acknowledges receipt 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 Issuer Trust as they arise or shall, upon request of any
Issuer Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer
Trustee. The Depositor shall not make any claim upon the Trust Property for the payment of such
expenses.



     Section 2.4 Issuance of the Trust Preferred Securities.



     (a) On [ ], the Depositor, on behalf of the Issuer Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement. On the Closing Date, an
Administrative Trustee, on behalf of the Issuer Trust, in connection with the delivery on such date
of [ ] Normal APEX to the underwriters named in the Underwriting Agreement, shall execute in
accordance with Section 5.3 and deliver to the Clearing Agency a Normal APEX Certificate or
Certificates that are Book-Entry Trust Preferred Securities Certificates, registered in the name of
the Clearing Agency (or its nominee) representing [ ] Normal APEX, against payment of $1,000 per
Normal APEX, or $[ ] in the aggregate as the purchase price therefor in immediately available
funds, which amount the Administrative Trustee shall promptly deliver to the Property Trustee or
its designee.



     (b) On the date on which an Administrative Trustee, on behalf of the Issuer Trust, executes
and delivers a Normal APEX Certificate pursuant to Section 2.4(a), such Administrative Trustee
shall also execute in accordance with Section 5.3 and deliver to the Clearing Agency or the
Certificate Custodian two additional Book-Entry Trust Preferred Securities Certificates, one of
which shall be a Capital APEX Certificate and the other of which shall be a Stripped APEX
Certificate, each representing up to a maximum number of Capital APEX or Stripped APEX, as
applicable, that is the same as the



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number of Normal APEX evidenced by the Certificate contemporaneously issued as a Book-Entry
Trust Preferred Securities Certificate pursuant to Section 2.4(a).




     (c) In order to give effect to Exchanges, the Securities Registrar may, as provided in Section
5.11, endorse Book-Entry Trust Preferred Securities Certificates to reduce or increase the number
of Normal APEX, Stripped APEX or Capital APEX evidenced by each such Book-Entry Trust Preferred
Securities Certificate, provided, however, that no such endorsement shall result in a Book-Entry
Trust Preferred Securities Certificate evidencing a number of Normal APEX, Stripped APEX or Capital
APEX exceeding the maximum number set forth on the face of such Certificate.



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



     On the Closing Date, an Administrative Trustee, on behalf of the Issuer Trust, shall execute
in accordance with Section 5.3 and deliver to the Depositor a Common Securities Certificate,
registered in the name of the Depositor, evidencing 100 Common Securities, each having a
Liquidation Amount of $1,000 and having an aggregate Liquidation Amount of $100,000, against
payment by the Depositor of such amount, which amount such Administrative Trustee shall promptly
deliver to the Property Trustee or its designee. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Issuer Trust, shall (x) subscribe to and purchase from the Depositor the
Notes registered in the name of the Issuer Trust or, upon order of an Administrative Trustee, in
the name of the Collateral Agent, and having an aggregate initial principal amount equal to $[ ],
(y) shall deliver to the Depositor the purchase price therefor (being the sum of the amounts
delivered to the Property Trustee or its designee pursuant to (i) the second sentence of Section
2.4(a) and (ii) the first sentence of this Section 2.5), and (z) shall instruct the Depositor to
deliver the Notes to the Collateral Agent for deposit in the Collateral Account.



     Section 2.6 Declaration of Trust.



     The exclusive purposes and functions of the Issuer Trust are (a) to issue and sell Trust
Securities and use the proceeds from such sale to acquire the Notes, (b) to enter into and perform
its obligations under the Transaction Agreements (including, on the Stock Purchase Date, to acquire
Preferred Stock pursuant to the Stock Purchase Contracts), (c) to hold the Notes and Qualifying
Treasury Securities and the National City Bank Deposit and pledge them to secure the Issuer Trust’s
obligations under the Stock Purchase Contracts, (d) to maintain its status as one or more grantor
trusts or agency arrangements and (e) to engage in those activities necessary or incidental
thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the Issuer Trust, to
have all the rights, powers and duties to the extent set forth herein, and the Issuer Trustees
hereby accept such appointment. The Property Trustee hereby declares that it will hold the Trust
Property upon and subject to the conditions set forth herein for the benefit of the Issuer 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 Issuer 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, or any of the duties and responsibilities of the Issuer Trustees
generally, set forth herein. The Delaware Trustee shall be one of the trustees of the Issuer Trust
for the sole and limited purpose of fulfilling the requirements of Section 3807 of the Delaware
Statutory Trust Act.



     Section 2.7 Authorization to Enter into Certain Transactions.



     (a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in Section 2.7(b) and Article
VIII and in accordance with the following provisions (i) and (ii), the Issuer Trustees shall have
the authority to enter into all transactions and agreements determined by the Issuer Trustees to be
appropriate in



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exercising the authority, express or implied, otherwise granted to the Issuer Trustees under
this Trust Agreement, and to perform all acts in furtherance thereof, including the following:





     (i) As among the Issuer Trustees, the Administrative Trustees, and each of them, shall
have the power and authority to act on behalf of the Issuer Trust with respect to the
following matters:




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




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




     (C) assisting in the registration of the Trust Preferred Securities under the
Securities Act and under state securities or blue sky laws, and the qualification of
this Trust Agreement under the Trust Indenture Act;




     (D) assisting in the listing of the Trust Preferred Securities upon such
securities exchange or exchanges or automated system or systems, if any, as shall be
determined by the Depositor, and the registration of the Trust Preferred Securities
under the Exchange Act, 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, the Notes and the Preferred Stock to the
Securityholders in accordance with this Trust Agreement;




     (F) the appointment of a Paying Agent, authenticating agent and a Securities
Registrar in accordance with this Trust Agreement, in addition to Wilmington Trust
Company as initial Paying Agent and Securities Registrar;




     (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 Issuer Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the State
of Delaware;




     (I) execution and delivery of closing certificates, if any, pursuant to the
Underwriting Agreement and any Remarketing Agreement and application for a taxpayer
identification number for the Issuer Trust;




     (J) to execute on behalf of the Issuer 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;




     (K) the taking of any action incidental to the foregoing as the Issuer 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 Securityholders);
and



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     (L) the taking of any action required to be taken by the Administrative
Trustees under any of the Transaction Agreements.




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




     (A) the establishment of the Payment Account;




     (B) the execution and delivery on behalf of the Issuer Trust of the Stock
Purchase Contract Agreement, the Collateral Agreement, the Remarketing Agreement,
and any other Transaction Agreement other than the Underwriting Agreement, the Agent
Agreement and the Certificate Depositary Agreement and the performance by the Issuer
Trust of its obligations and the exercise by the Issuer Trust of its rights
thereunder;




     (C) the receipt of the Notes and, in connection with an Exchange, Notice of
Contingent Exchange Election or Remarketing, the receipt of Qualifying Treasury
Securities;




     (D) the pledge of Notes and Qualifying Treasury Securities pursuant to the
Collateral Agreement;




     (E) the receipt of the Preferred Stock on the Stock Purchase Date;




     (F) the collection of interest, principal and any other payments or instruments
(including due bills or promissory notes of the Depositor issuable under or with
respect to the Notes) made in respect of the Notes in the Payment Account;




     (G) the collection of the Contract Payments and any other payments or
instruments (including due bills or promissory notes of the Depositor issuable under
the Stock Purchase Contract Agreement or with respect to the Contract Payments) and
the holding of such amounts in the Payment Account;




     (H) the collection of payment of dividends, redemption price and other payments
made in respect of the Preferred Stock and the holding of such amounts in the
Payment Account;




     (I) the distribution through the Paying Agent of amounts or property or
instruments (including due bills or promissory notes of the Depositor issuable under
or with respect to the Notes or the Stock Purchase Contracts) owed to the
Securityholders in respect of the Trust Securities;




     (J) the exercise of all of the rights, powers and privileges of a holder of the
Notes for so long as the Issuer Trust holds Notes, subject to Articles V and VI of
this Trust Agreement;




     (K) the exercise of all of the rights, powers and privileges of a holder of
Preferred Stock for so long as the Issuer Trust holds Preferred Stock, subject to
Articles V and VI of this Trust Agreement;



Trust Agreement




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     (L) the sending of notices of default and other information regarding the Trust
Securities, the Notes, the Preferred Stock and the Transaction Agreements to the
Securityholders in accordance with this Trust Agreement;




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




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




     (O) after an Event of Default (other than under paragraph (c), (d), (e) or (f)
of the definition of such term if such Event of Default is by or with respect to the
Property Trustee), the taking of any action incidental to the foregoing as the
Property Trustee may from time to time determine is necessary or advisable to give
effect to the terms of this Trust Agreement and to protect and conserve the Trust
Property for the benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder); and




     (P) 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 Issuer Trust (or the Issuer
Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or
transactions except as expressly provided herein or contemplated hereby. In particular, the Issuer
Trustees (acting on behalf of the Issuer Trust) 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 Issuer Trust to become an association or publicly traded partnership taxable as a
corporation or as other than one or more grantor trusts or agency arrangements for United States
Federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other
debt, (v) reinvest any proceeds derived from the Notes, except as expressly provided in this Trust
Agreement or any Transaction Agreement, or (vi) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property, except as expressly provided herein. 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 Issuer Trust or the
Securityholders in their capacity as Securityholders (other than the Lien created by the Collateral
Agreement, which is a permitted Lien).



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




     (i) the preparation and filing by the Issuer Trust with the Commission and the
execution on behalf of the Issuer Trust of a registration statement on the appropriate form
in relation to the Trust Preferred 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 Trust Preferred Securities and the determination of any
and all



Trust Agreement




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such acts, other than actions that must be taken by or on behalf of the Issuer Trust,
and the advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust,
and the preparation for execution and filing of any documents to be executed and filed by
the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or
advisable in order to comply with the applicable laws of any such states;




     (iii) the preparation for filing by the Issuer Trust and execution on behalf of the
Issuer Trust of an application to the New York Stock Exchange or any other national stock
exchange or any automated quotation system for listing upon notice of issuance of any Trust
Preferred Securities and filing with such exchange or self-regulatory organization such
notification and documents as may be necessary from time to time to maintain such listing;




     (iv) the preparation for filing by the Issuer Trust with the Commission and the
execution on behalf of the Issuer Trust of a registration statement on Form 8-A relating to
the registration of the Trust Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, including any amendments thereto;




     (v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Trust Preferred Securities;




     (vi) the appointment of the Securities Registrar in accordance with Section 5.4;




     (vii) the setting of any special record date in accordance with Section 4.1(g), and




     (viii) 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 Issuer Trust and to operate the Issuer Trust
so that the Issuer Trust will not be deemed to be an “investment company” required to be registered
under the 1940 Act, or to be classified as an association or publicly traded partnership taxable as
a corporation or as other than one or more grantor trusts or agency arrangements for United States
Federal income tax purposes and so that the Notes 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 the Depositor or 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 Outstanding
Trust Preferred Securities.



     Section 2.8 Assets of Issuer Trust.



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



     Section 2.9 Title to Trust Property.



     Subject to the terms and provisions of the Collateral Agreement, legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity as such), on behalf
of the Issuer Trust, and shall be held and administered by the Property Trustee for the benefit of
the Issuer Trust and the Securityholders in accordance with this Trust Agreement.



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ARTICLE III




Payment Account




     Section 3.1 Payment Account.



     (a) On or prior to the Closing Date, the Property Trustee shall establish or cause to be
established the Payment Account. The Property Trustee and any agents 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 or cause to be deposited in the Payment Account,
promptly upon receipt, (i) all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Notes, (ii) all Contract Payments, (iii) all Excess Proceeds
Distributions, (iv) all payments of dividends or the redemption price on, and other payments or
proceeds with respect to, the Preferred Stock or the Stock Purchase Contracts and (v) all other
cash amounts received as payments on or with respect to the Trust Property. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending distribution thereof.



ARTICLE IV




Distributions; Redemption, Etc.




     Section 4.1 Distributions.



     (a) The Trust Securities represent beneficial interests in the Issuer Trust, and Distributions
will be made on the Trust Securities of a Series on applicable Distribution Dates in amounts that
correspond to amounts of interest, dividends or Contract Payments, as applicable (and (i) in the
case of the Normal APEX, Capital APEX and Common Securities, Additional Amounts and Deferred Note
Interest Amounts, and (ii) in the case of the Normal APEX, Stripped APEX and Common Securities,
Deferred Contract Payment Amounts) that are received by the Property Trustee or the Paying Agent on
or in connection with each applicable Distribution Date on the Trust Property that is the
Corresponding Assets for such Series, as provided in Sections 4.1(b), (c) and (d).



     (b) In the case of the Normal APEX and the Common Securities, subject to Section 4.1(e):




     (i) Distributions will be payable in cash on each Regular Distribution Date;




     (ii) the Distributions payable on each Regular Distribution Date for the related
Distribution Period will be at a rate per annum applied to the Liquidation Amount per Normal
APEX and Common Security equal to the Normal APEX Distribution Rate for such Distribution
Period (with the consequence that the amount of the Distribution for each $1,000 of Normal
APEX or Common Securities payable on each Regular Distribution Date being equal to (x) the
sum of the amount of interest payable on such Regular Distribution Date on a Like Amount of
Notes (without giving effect to any change in the interest rate on the Notes in connection
with a Remarketing) plus 1/100th of the Contract Payment payable on a Stock
Purchase Contract having a stated amount of $100,000 for each Distribution Period ending on
or before the Stock Purchase



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Date and (y) the amount of dividends payable on such Regular Distribution Date on a
Like Amount of Preferred Stock for each Distribution Period thereafter);




     (iii) Distributions shall be cumulative for each Regular Distribution Date to and
including the Stock Purchase Date and non-cumulative thereafter; and




     (iv) the amount of Distributions payable for any Distribution Period ending on or prior
to the Stock Purchase Date shall include the Additional Amounts received by the Issuer
Trust, if any.



     (c) In the case of Capital APEX, subject to Section 4.1(e):




     (i) Distributions will be payable in cash on each Capital APEX Distribution Date;




     (ii) the Distributions payable on each Capital APEX Distribution Date for the related
Distribution Period will be at a rate per annum applied to the Liquidation Amount per
Capital APEX equal to the Capital APEX Distribution Rate for such Distribution Period, with
the consequence that the amount of the Distribution for each $1,000 of Capital APEX payable
on each Capital APEX Distribution Date is equal to the amount of interest payable on or
accrued to (as applicable) such Distribution Date on a Like Amount of Notes;




     (iii) Distributions shall be cumulative; and




     (iv) the amount of Distributions payable for any Distribution Period shall include the
Additional Amounts received by the Issuer Trust, if any.



     (d) In the case of Stripped APEX, subject to Section 4.1(e):




     (i) Distributions will be payable in cash on each Regular Distribution Date;




     (ii) the Distributions payable on each Regular Distribution Date for the related
Distribution Period will be at a rate per annum applied to the Liquidation Amount per
Stripped APEX equal to 1/100th of the Contract Payment payable on a Stock
Purchase Contract having a stated amount of $100,000 on such Stripped APEX Distribution Date
(expressed as a percentage);




     (iii) Distributions shall be cumulative; and




     (iv) additionally, on each Additional Distribution Date on which Stripped APEX are
Outstanding (or as promptly thereafter as the Collateral Agent and the Paying Agent
determine to be practicable), the Property Trustee shall distribute or cause to be
distributed through the Paying Agent an amount per $1,000 of Stripped APEX equal to, the
Excess Proceeds Distributions for such Additional Distribution Date.



     (e) Distributions on the Trust Securities of a Series shall be made by the Paying Agent from
the Payment Account and shall be payable on each Distribution Date only to the extent that the
Issuer Trust has funds then on hand and available in the Payment Account from the Corresponding
Assets of such Series for the payment of such Distributions. The Issuer Trust will have amounts to
make full Distributions on the relevant Series of Trust Securities in accordance with Sections
4.1(b), (c) and (d) on an applicable Distribution Date only if the Depositor has not (i) defaulted
in paying interest on the Notes or Contract Payments on the Stock Purchase Contracts or (ii)
exercised its right to defer payment of interest on the Notes and Contract Payments on the Stock
Purchase Contracts and, accordingly, there is no



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outstanding Deferred Note Interest Amount or Deferred Contract Payment Amount. Deferred Note
Interest Amounts and Deferred Contract Payment Amounts will be paid to Holders of the relevant
Series of Trust Securities on a pro rata basis on the applicable Distribution Dates on which such
amounts are received by the Issuer Trust (or as soon thereafter as the Property Trustee determines
to be practicable).




     (f) In the event the Property Trustee or the Paying Agent receives any other cash or non-cash
payments or distributions with respect to Corresponding Assets for any Series of Trust Preferred
Securities (including promissory notes of the Depositor delivered pursuant to (i) Section 2.7(c) of
the Stock Purchase Contract Agreement if there are any Deferred Contract Payment Amounts
outstanding on the Stock Purchase Date or (ii) Section 2.5(c) of the Indenture Supplement if there
are any Deferred Note Interest Amounts outstanding on the Stock Purchase Date), the Property
Trustee shall distribute or cause to be distributed through the Paying Agent such cash amounts to
the Holders of the related Series of Trust Preferred Securities on a pro rata basis promptly after
receipt and may, in its discretion, distribute non-cash amounts on a pro rata basis (or on a basis
that is as close as possible to a pro rata basis as it determines to be reasonably practicable).



     (g) Distributions in cash on the Trust Securities of a Series with respect to an applicable
Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register
for the Trust Securities at the close of business on the relevant record date for such Distribution
Date, which shall be the 15th day before the relevant Distribution Date. Distributions
payable on any Trust Securities of a Series that are not punctually paid on an applicable
Distribution Date will cease to be payable to the Person in whose name such Trust Securities are
registered on the relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Trust Securities are registered on the special record date or other
specified date for determining Holders entitled to such defaulted Distributions.



     Section 4.2 Redemption.



     (a) On each Preferred Stock Redemption Date, the Issuer Trust will be required to redeem a
Like Amount of Normal APEX and Common Securities at the Preferred Stock Redemption Price.



     (b) On any Note Redemption Date prior to the Stock Purchase Date or, if earlier, the
Remarketing Settlement Date, the Issuer Trust will be required to redeem (i) a Like Amount of
Normal APEX and Common Securities at the Note Redemption Price plus accrued and unpaid Contract
Payments through the date of redemption, (ii) a Like Amount of Capital APEX at the Note Redemption
Price and (iii) a Like Amount of Stripped APEX in exchange for the Qualifying Treasury Securities
that are Corresponding Assets of the Stripped APEX and a payment equal to accrued and unpaid
Contract Payments through the date of redemption.



     (c) On each Note Redemption Date following the Stock Purchase Date or, if earlier, the
Remarketing Settlement Date, the Issuer Trust will be required to redeem a Like Amount of Capital
APEX at the Note Redemption Price.



     (d) If a Successful Remarketing occurs, then promptly after the Remarketing Settlement Date
the Issuer Trust shall redeem the Capital APEX, in whole but not in part (including Capital APEX
issued in connection with a Contingent Exchange Election), in kind by exchanging for each Capital
APEX a Like Amount of Notes. If a Failed Remarketing occurs but on the Stock Purchase Date there
is no Deferred Note Interest Amount outstanding, then promptly after the Stock Purchase Date the
Issuer Trust shall redeem the Capital APEX, in whole but not in part, in kind by exchanging for
each Capital APEX a Like Amount of Notes. If a Failed Remarketing occurs and there is a Deferred
Note Interest Amount outstanding on the Stock Purchase Date, or if the Stock Purchase Contracts
terminate in accordance with



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the terms of the Stock Purchase Contract Agreement prior to a Stock Purchase Date occurring,
then the Depositor may instruct the Issuer Trust at any time thereafter when no Deferred Note
Interest Amount is outstanding to redeem the Capital APEX, in whole but not in part, in kind by
exchanging for each Capital APEX a Like Amount of Notes. Any such redemption will be effected by
Book-Entry Transfer of Notes in global form if the Notes then settle and clear through the Clearing
Agency, and if the Notes do not then settle and clear through the Clearing Agency by delivery of
definitive certificates evidencing the Notes to the Holders of Capital APEX.




     (e) Notice of redemption shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not less than 30 (or not less than 20 in the case of a redemption in kind pursuant
to Section 4.2(d) after a Successful Remarketing) nor more than 60 days prior to the Redemption
Date to each Holder of Trust Securities to be redeemed, at such Holder’s address appearing in the
Security Register. The Depositor shall provide a completed form of notice of redemption not later
than five Business Days prior to the date of mailing. All notices of redemption shall state:




     (i) the Redemption Date;




     (ii) unless the redemption is a redemption of Capital APEX in kind pursuant to Section
4.2(d), the Redemption Price or if the Redemption Price cannot be calculated prior to the
time the notice is required to be sent, the estimate of the Redemption Price together with a
statement that it is an estimate and that the actual Redemption Price will be calculated on
the third Business Day prior to the Redemption Date (and if an estimate is provided, a
further notice shall be sent of the actual Redemption Price on the date that such Redemption
Price is calculated);




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




     (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 of the
relevant Series to be redeemed;




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




     (vi) if the Trust Preferred Securities Certificates are not Book-Entry Trust Preferred
Securities Certificates on the Redemption Date, the place or places where the Trust
Preferred Securities Certificates are to be surrendered for the payment of the Redemption
Price.



     (f) In the case of a redemption of Normal APEX and Common Securities pursuant to Section
4.2(a) or Capital APEX pursuant to Section 4.2(c), in each case for payment of a cash Redemption
Price:




     (i) The Trust Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price with the proceeds from the contemporaneous redemption of a Like Amount of
Preferred Stock or Notes, as applicable. Redemptions of the Trust Securities shall be made
and the Redemption Price shall be payable on each Redemption Date only to the extent that
the Issuer Trust has funds then on hand and available in the Payment Account from the
Depositor’s redemption of Preferred Stock or Notes, as applicable, for the payment of such
Redemption Price.




     (ii) If the Property Trustee gives a notice of redemption in respect of any Trust
Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
subject



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to Section 4.2(f)(i), the Property Trustee or Paying Agent will, with respect to
Book-Entry Trust Preferred Securities, irrevocably deposit with the Clearing Agency for such Book-Entry
Trust Preferred Securities, to the extent available therefor, funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof. With respect to Trust
Preferred Securities that are not Book-Entry Trust Preferred Securities, the Property
Trustee, subject to Section 4.2(f)(i), will irrevocably deposit with the Paying Agent, to
the extent available therefor, funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent irrevocable instructions and authority to pay the Redemption
Price to the Holders of the Trust Preferred Securities upon surrender of their Trust
Preferred 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 Holders holding Trust Securities so called for
redemption will cease, except the right of such Securityholders to receive the Redemption
Price and any Distribution payable in respect of the Trust Securities on or prior to the
Redemption Date, but without interest, and such Trust Securities will cease to be
outstanding. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid either by
the Issuer Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on
such Trust Securities will continue to accumulate, as set forth in Section 4.1, from the
Redemption Date originally established by the Issuer Trust for such Trust Securities to the
date such 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.




     (iii) Subject to Section 4.3(a), if less than all the Outstanding Normal APEX and
Common Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation
Amount of Normal APEX and Common Securities to be redeemed shall be allocated pro rata to
the Common Securities and the Normal APEX being redeemed based upon the relative Liquidation
Amounts of such series. The particular Normal APEX to be redeemed shall be selected on a
pro rata basis based upon their respective Liquidation Amounts not more than 60 days prior
to the Redemption Date by the Property Trustee from the Outstanding Normal APEX not
previously called for redemption or, if that is not practical, by lot or any other method
the Property Trustee deems fair and appropriate, provided, however, that so long as the
Normal APEX are in book-entry form, such selection shall be made in accordance with the
customary procedures for the Clearing Agency for the Normal APEX. The Property Trustee
shall promptly notify the Securities Registrar in writing of the Normal APEX selected for
redemption and, in the case of any Normal APEX 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 Normal APEX
shall relate, in the case of any Normal APEX redeemed or to be redeemed only in part, to the
portion of the aggregate Liquidation Amount of Normal APEX that has been or is to be
redeemed.




     (iv) If less than all the Outstanding Capital APEX are to be redeemed on a Redemption
Date, then the particular Capital APEX to be redeemed shall be selected on a pro rata basis
based upon their respective Liquidation Amounts not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Capital APEX not previously
called for redemption or, if that is not practical, by lot or any other method the Property
Trustee deems fair and appropriate, provided, however, that so long as the Capital APEX are
in book-entry form, such selection shall be made in accordance with the customary procedures
for the



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Clearing Agency for the Capital APEX. The Property Trustee shall promptly notify
the Securities Registrar in writing of the Capital APEX selected for redemption and, in the
case of any Capital APEX 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 APEX shall relate, in the
case of any Capital APEX redeemed or to be redeemed only in part, to the portion of the
aggregate Liquidation Amount of Capital APEX that has been or is to be redeemed.




     (v) 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 Trust Preferred Securities do not remain
in book-entry-only form, the relevant record date shall be the date fifteen days prior to
the relevant Redemption Date.



     Section 4.3 Subordination of Common Securities.



     (a) If on any Distribution Date the Paying Agent lacks funds available from payments of
interest, dividends or Contract Payments (as applicable) to make full Distributions then due on all
of the outstanding Trust Securities in accordance with Section 4.1 (other than because of the
Depositor’s proper exercise of its right to defer payment of Contract Payments or interest on the
Notes), then:




     (i) if the deficiency in funds results from the Depositor’s failure to make a full
payment of interest on the Notes on an interest payment date for the Notes, then the
available funds from the Depositor’s payment of interest on the Notes shall be applied first
to make the Distributions then due on the Normal APEX and the Capital APEX on a pro rata
basis on such Distribution Date up to the amount of such Distributions corresponding to
interest payments on the Notes (or, if less, the amount of the corresponding Distributions
that would have been made on the Normal APEX and Capital APEX had the Depositor made a full
payment of interest on the Notes) before any such amount is applied to make a Distribution
on Common Securities on such Distribution Date;




     (ii) if the deficiency in funds results from the Depositor’s failure to make a full
payment of Contract Payments on the Stock Purchase Contracts on a payment date for Contract
Payments, then the available funds from the Depositor’s payment of Contract Payments shall
be applied first to make Distributions then due on the Normal APEX and the Stripped APEX on
a pro rata basis on such Distribution Date up to the amount of such Distributions
corresponding to the Contract Payments on the Stock Purchase Contracts (or, if less, the
amount of the corresponding Distributions that would have been made on the Normal APEX and
the Stripped APEX had the Depositor made a full payment of Contract Payments on the Stock
Purchase Contracts) before any such amount is applied to make a Distribution on Common
Securities on such Distribution Date; and




     (iii) if the deficiency in funds results from the Depositor’s failure to pay a full
dividend on shares of Preferred Stock on a dividend payment date for the Preferred Stock,
then the available funds from the Depositor’s payment of dividends on the Preferred Stock
shall be applied first to make Distributions then due on the Normal APEX on a pro rata basis
on such Distribution Date up to the amount of such Distributions corresponding to dividends
on the Preferred Stock (or, if less, the amount of the corresponding Distributions that
would have been made on the Normal APEX had the Depositor paid a full dividend on the
Preferred Stock) before



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any such amount is applied to make a Distribution on Common
Securities on such Distribution Date.



     (b) If on any Redemption Date for a redemption pursuant to Section 4.2(a) the Paying Agent
lacks funds available from the Depositor’s redemption of shares of Preferred Stock to pay the full
Redemption Price then due on all of the outstanding Trust Securities to be redeemed in accordance
with Section 4.2, then (i) the available funds shall be applied first to pay the Redemption Price
on the Trust Preferred Securities to be redeemed on such Redemption Date and (ii) Common Securities
shall be redeemed only to the extent funds are available for such purpose after the payment of the
full Redemption Price on the Trust Preferred Securities to be redeemed, as aforesaid.



     (c) If an Early Termination Event occurs, no Liquidation Distributions shall be made on the
Common Securities until full Liquidation Distributions have been made on each Series of Trust
Preferred Securities in accordance with Section 9.4(d).



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



     Section 4.4 Payment Procedures.



     Payments of cash Distributions (including Additional Amounts, if applicable) in respect of the
Trust Preferred Securities shall, subject to the next succeeding sentence, 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 Trust Preferred 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. A Holder
of $1,000,000 or more in aggregate Liquidation Amount of Trust Preferred Securities may receive
payments of cash Distributions (including any Additional Amounts) by wire transfer of immediately
available funds upon written request to the Property Trustee not later than the 15th
calendar day, whether or not a Business Day, before the relevant Distribution Date. Payments in
respect of the Common Securities shall be made in such manner as shall be mutually agreed between
the Property Trustee and the Holders of the Common Securities.



     Section 4.5 Tax Returns and Reports.



     (a) 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 Issuer Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) the
appropriate Internal Revenue Service forms required to be filed in respect of the Issuer Trust in
each taxable year of the Issuer Trust, and (b) prepare and furnish (or cause to be prepared and
furnished) to each Securityholder the appropriate Internal Revenue Service forms required to be
provided by the Issuer Trust. 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.



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     (b) The Issuer Trustees shall comply with United States Federal withholding and backup
withholding tax laws and information reporting requirements with respect to any payments to Holders
under the Trust Securities. The Administrative Trustees on behalf of the Trust shall request, and
the Securityholders shall provide to the Trust, such forms and certificates as may be necessary to
establish an exemption from or reduction in withholding and backup withholding tax with respect to
each Securityholder and any representations and forms as shall reasonably be requested by the
Administrative Trustees on behalf of the Trust to assist in determining the extent of, and in
fulfilling, its withholding and backup withholding tax obligations. The Administrative Trustees
shall file the required forms and certificates with the applicable jurisdictions and, unless an
exemption from withholding and backup withholding tax is properly established by a Securityholder,
shall remit amounts withheld with respect to the Security to applicable taxing authorities. To the
extent that the Trust is required to withhold and pay over any amounts to any jurisdiction with
respect to Distributions or allocations to any Securityholder, including any payments referred to
in Section 4.6, the amount withheld shall be deemed to be a Distribution in the amount of the
withholding to the Securityholder. If the amount required to be withheld was not withheld from
actual Distributions made, the Administrative Trustees on behalf of the Trust may reduce subsequent
Distributions by the amount of such required withholding.



     Section 4.6 Payment of Expenses of the Issuer Trust.



     The Depositor shall 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 Trust Preferred Securities or other similar interests in the Trust the amounts due such
Holders pursuant to the terms of the Trust Preferred 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 dissolution of the
Trust.



     Section 4.7 Payments under Indenture or Pursuant to Direct Actions.



     Any amount payable hereunder to any Holder of Trust Preferred Securities (or any Owner with
respect thereto) shall be reduced by the amount of any corresponding payment such Holder (or Owner)
has directly received pursuant to Section 5.8 of the Base Indenture, Section 3.1 of the Stock
Purchase Contract Agreement or Section 5.16 of this Trust Agreement.



     Section 4.8 Combination of Stripped APEX and Normal APEX after Stock Purchase Date.



     If either (x) there has been a Successful Remarketing or (y) there has been a Failed
Remarketing but on the Stock Purchase Date there is no Deferred Note Interest Amount outstanding
(but in the case of each of clause (x) and (y) only if the Stock Purchase Contract Agreement is
fully performed on the Stock Purchase Date), at the Securities Registrar’s opening of business on
the Business Day next succeeding the Stock Purchase Date each Stripped APEX with its $1,000
Liquidation Amount shall automatically be and become a Normal APEX with a $1,000 Liquidation
Amount, and each Stripped APEX Certificate (whether or not a Book-Entry Trust Preferred Securities
Certificate) shall be deemed to represent a number of Normal APEX equal to the number of Stripped
APEX represented by such Stripped APEX Certificate immediately prior to the Securities Registrar’s
opening of business on such date. If there has been a Failed Remarketing and on the Stock Purchase
Date there is a Deferred Note Interest Amount outstanding, then Stripped APEX will continue to
remain outstanding after the Stock Purchase Date until the first date on which no Deferred Note
Interest Amount is outstanding (including because any notes delivered pursuant to Section 2.5(c) of
the Indenture Supplement have been fully paid) and, on the Business Day after all Deferred Note
Interest Amounts have been fully paid, each Stripped APEX with its



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$1,000 Liquidation Amount shall automatically be and become a Normal APEX with a $1,000
Liquidation Amount, and each Stripped APEX Certificate (whether or not a Book-Entry Trust Preferred
Securities Certificate) shall be deemed to represent a number of Normal APEX equal to the number of
Stripped APEX represented by such Stripped APEX Certificate immediately prior to the Securities
Registrar’s opening of business on such date. On or after such date determined pursuant to either
of the two preceding sentences, (a) upon surrender by a Holder of a Stripped APEX Certificate to
the Securities Registrar, an Administrative Trustee shall execute and deliver to the Securities
Registrar (who shall then deliver to such Holder) a Normal APEX Certificate representing the
appropriate number of Normal APEX, and the Securities Registrar shall enter such Holder as
appropriate in the Securities Register for the Normal APEX, and (b) as to Normal APEX and Stripped
APEX represented by Book-Entry Preferred Securities, the Depositor, the Administrative Trustees,
the Property Trustee, the Securities Registrar and the Paying Agent shall cooperate in an effort to
cause the Stripped APEX to become Normal APEX in accordance with the rules and procedures of the
applicable Clearing Agency (including, in the case of DTC if it is the Clearing Agency, adjustment
if necessary or appropriate through DTC’s Deposit/Withdrawal at Custodian (DWAC) system).




ARTICLE V




Trust Securities Certificates




     Section 5.1 Initial Ownership.



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



     Section 5.2 The Trust Securities Certificates.



     The Trust Preferred Securities Certificates shall be issued in minimum denominations of one
Trust Preferred Security and integral multiples thereof (corresponding to $1,000 Liquidation Amount
and integral multiples of $1,000 in excess thereof), and the Common Securities Certificates shall
be issued in minimum denominations of one Common Security and integral multiples thereof
(corresponding to $1,000 Liquidation Amount and integral multiples thereof). Trust Preferred
Securities Certificates and Common Securities Certificates shall not be issued in denominations
representing fractions of a Trust Preferred Security or Common Security, as applicable. The Trust
Securities Certificates shall be executed on behalf of the Issuer Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the manual signatures of
individuals who were, at the time when such signatures shall have been affixed, Administrative
Trustees 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 Administrative
Trustees prior to the delivery of such Trust Securities Certificates or did not hold such offices
at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities
Certificate shall become a Holder, and shall be entitled to the rights and subject to the
obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in
such transferee’s name pursuant to Section 5.4, 5.11 or 5.13.



     Section 5.3 Execution and Delivery of Trust Securities Certificates.



     On the Closing Date, the Administrative Trustees shall cause Trust Securities Certificates
representing the number of Trust Securities of the applicable Series provided in Sections 2.4 and
2.5 to be executed on behalf of the Issuer 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 or any
vice president, treasurer or



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assistant treasurer or controller, without further corporate action by the Depositor, in
authorized denominations.




     Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities Certificates.



     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 Securities Certificates
and transfers and exchanges of Trust Preferred Securities Certificates (the “Securities Register”)
in which the registrar designated by the Depositor (the “Securities Registrar”), subject to such
reasonable regulations as it may prescribe, shall provide for the registration of Trust Preferred
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 Trust Preferred
Securities Certificates as herein provided. The provisions of Sections 8.1 (other than (c),
(d)(i), (d)(iii) and (d)(iv) thereof), 8.3 (other than (g) and (j) thereof) and 8.6 shall apply to
the Securities Registrar in the same manner that by their terms they apply to the Property Trustee,
mutatis mutandis, as modified by the terms of the letter agreement, dated [ ] (the “Agent
Agreement”), by and among the Depositor, the Administrative Trustees, the Securities Registrar and
the Paying Agent, which is hereby incorporated herein by reference and made a part hereof, and
subject to the rights, privileges and immunities of the Securities Registrar under the Collateral
Agreement. The Depositor shall take such action as shall be necessary to ensure that at all times
there is a Securities Registrar and that, through the Stock Purchase Date, the same commercial bank
or trust company is both Securities Registrar and Collateral Agent. By executing this Trust
Agreement, the Depositor appoints Wilmington Trust Company as the initial Securities Registrar.
Subject to the second preceding sentence, the Depositor may dismiss the Securities Registrar and
appoint a commercial bank or trust company to act as successor Securities Registrar. Any Person
acting as Securities Registrar shall be permitted to resign as Securities Registrar upon 30 days’
written notice to the Administrative Trustees and the Property Trustee.



     Upon surrender for registration of transfer of any Trust Preferred 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 Issuer Trust and deliver, in the name of the designated
transferee or transferees, one or more new Trust Preferred Securities Certificates in authorized
denominations of a like aggregate Liquidation Amount dated the date of execution by such
Administrative Trustee or Trustees. At the option of a Holder, Trust Preferred Securities
Certificates may be exchanged for other Trust Preferred Securities Certificates in authorized
denominations of the same Series and of a like aggregate Liquidation Amount upon surrender of the
Trust Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant
to Section 5.8. Neither the Issuer Trust nor the Securities Registrar shall be required, pursuant
to the provisions of this Section 5.4, (a) to register the transfer of or exchange any Trust
Preferred Security during a period beginning at the opening of business 15 days before the day of
selection for redemption of Trust Preferred Securities and ending at the close of business on the
day of mailing of notice of redemption or (b) to transfer or exchange any Trust Preferred Security
so selected for redemption in whole or in part, except, in the case of any Trust Preferred Security
to be redeemed in part, any portion thereof not to be redeemed.



     Every Trust Preferred 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 Trust Preferred Securities Certificate surrendered for
registration of transfer or exchange shall be canceled and subsequently disposed of by an
Administrative Trustee or the Securities Registrar in accordance with such Person’s customary
practice.



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     No service charge shall be made for any registration of transfer or exchange of Trust
Preferred 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 Trust Preferred 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 protected purchaser, the Administrative
Trustees, or any one of them, on behalf of the Issuer Trust shall execute 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 series, 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 assets of the Issuer Trust corresponding to
that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.



     Section 5.6 Persons Deemed Securityholders.



     The Issuer 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 none of the Issuer Trustees, the Administrative Trustees and 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
Issuer Trustees or the Securities Registrar 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
Trust Preferred Securities Certificates may be surrendered for registration of transfer or exchange
and for payment, and where notices and demands to or upon the Issuer Trustees in respect of the
Trust Securities Certificates may be served. The Administrative Trustees initially designate the
Securities Registrar’s Corporate Trust Office as its principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the Depositor, the
Property Trustee and to the Holders 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.



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Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account
solely for the purpose of making the Distributions referred to above. The 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 Administrative Trustees hereby appoint Wilmington Trust
Company as the initial Paying Agent, and authorize Wilmington Trust Company to designate any
co-paying agent that is acceptable to the Administrative Trustees and the Depositor. Any Person
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 Wilmington
Trust Company 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
reasonably 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,
any co-paying agent designated by Wilmington Trust Company or any additional Paying Agent appointed
by the Administrative Trustees to execute and deliver to the Issuer Trustees an instrument in which
such successor Paying Agent, co-paying agent or additional Paying Agent shall agree with the Issuer
Trustees that as Paying Agent, such successor Paying Agent, co-paying agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of
the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall
return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1 (other than (c), (d)(i), (d)(iii) and (d)(iv) thereof), 8.3 (other than (g) and (j)
thereof) and 8.6 shall apply also to the Paying Agent for so long as it shall act as Paying Agent
and, to the extent applicable, to any other paying agent appointed hereunder, in the same manner
that by their terms they apply to the Property Trustee, mutatis mutandis, as modified by the terms
of the Agent Agreement. Any reference in this Trust 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.



     At 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 Base Indenture, any attempted transfer of the Common Securities
other than to a direct or indirect subsidiary of the Depositor shall be void. The Administrative
Trustees shall cause each Common Securities Certificate issued to the Depositor to contain a legend
stating “EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS DEFINED BELOW), THIS CERTIFICATE IS NOT
TRANSFERABLE.”



     Section 5.11 Book-Entry Trust Preferred Securities Certificates; Common Securities
Certificate.



     (a) Except where Definitive Trust Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.15:




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




     (ii) the Securities Registrar, the Paying Agent and the Issuer Trustees shall be
entitled to deal with the Clearing Agency, or its nominee, for all purposes of this
Declaration of Trust relating to the Book-Entry Trust Preferred Securities Certificates
(including the payment of the Liquidation Amount of and Distributions on the Trust Preferred
Securities evidenced by



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Book-Entry Trust Preferred Securities Certificates and the giving of instructions or
directions to Owners of Trust Preferred Securities evidenced by Book-Entry Trust Preferred
Securities Certificates) as the sole Holder of Trust Preferred Securities evidenced by
Book-Entry Trust Preferred Securities Certificates and shall have no obligations to the
Owners thereof, and neither any Clearing Agency Participants nor any other Persons on whose
behalf Clearing Agency Participants may act shall have any rights under this Declaration of
Trust with respect to any Book-Entry Trust Preferred Securities Certificates registered in
the name of the Clearing Agency or any nominee thereof or otherwise;




     (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 Trust Preferred 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 Depositary Agreement, unless and
until Definitive Trust Preferred Securities Certificates are issued pursuant to
Section 5.15, the initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Trust Preferred Securities to
such Clearing Agency Participants. Notwithstanding the foregoing, (x) the Holder of a
Book-Entry Trust Preferred Securities Certificate may grant proxies and otherwise authorize
any Person, including the Clearing Agency Participants and other Persons that are Owners, to
take any action that a Holder of Trust Preferred Securities of the relevant Series is
entitled to take under this Trust Agreement or the Trust Preferred Securities of the
relevant Series, and (y) nothing herein shall prevent the Securities Registrar or the Issuer
Trustees from giving effect to any written certification, proxy or other authorization
furnished by the Clearing Agency or shall impair, as between the Clearing Agency and the
Clearing Agency Participants, the operation of customary practices governing the exercise of
the rights of an Owner of any Trust Preferred Security.



     (b) Any Book-Entry Trust Preferred Securities Certificate shall represent such number of the
Outstanding Trust Preferred Securities of the applicable Series as shall be specified therein and
may provide that it shall represent the aggregate number of Outstanding Trust Preferred Securities
of the applicable Series from time to time endorsed thereon and that the aggregate number of
Outstanding Trust Preferred Securities of the applicable Series represented thereby may from time
to time be reduced or increased, as appropriate, to reflect transfers, redemptions or exchanges
(including the Exchanges pursuant to Section 5.13). Any endorsement of a Book-Entry Trust
Preferred Securities Certificate to reflect the number, or any increase or decrease in the number,
of Outstanding Trust Preferred Securities of the applicable Series represented thereby shall be
made by the Securities Registrar (i) in such a manner and upon instructions given by such Person or
Persons as shall be specified in such Trust Preferred Securities of the applicable Series or in a
Depositor Order to be delivered to the Securities Registrar pursuant to Section 5.3 or
(ii) otherwise in accordance with written instructions or such other written form or instructions
as is customary for the Clearing Agency for such Trust Preferred Securities, from such Clearing
Agency or its nominee on behalf of any Person having a beneficial interest in such Book-Entry Trust
Preferred Securities Certificate. Subject to the provisions of Section 5.4, the Securities
Registrar shall deliver and redeliver any Book-Entry Trust Preferred Securities Certificate in the
manner and upon instructions given by the Person or Persons specified in such Book-Entry Trust
Preferred Securities Certificate or in the applicable Depositor Order (and an Administrative
Trustee shall execute such Book-Entry Trust Preferred Securities Certificate as shall be necessary
in order to give effect to the foregoing).



     (c) Any Book-Entry Trust Preferred Securities Certificate may be deposited with the Clearing
Agency or its nominee, or may remain in the custody of the Certificate Custodian.



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     (d) Notwithstanding Section 5.4, transfers of a Book-Entry Trust Preferred Securities
Certificate shall be limited to transfers in whole, but not in part, to the Clearing Agency, its
successors or their respective nominees. Interests of Owners in a Book-Entry Trust Preferred
Securities Certificate may be transferred in accordance with the rules and procedures of the
Clearing Agency. Definitive Trust Preferred Securities Certificates shall be transferred to Owners
in exchange for their beneficial interests in a Book-Entry Trust Preferred Securities Certificate
if, and only if, either (1) the Clearing Agency notifies the Depositor and the Securities Registrar
that it is unwilling or unable to continue as Clearing Agency for the Book-Entry Trust Preferred
Securities or if at any time the Clearing Agency ceases to be a Clearing Agency registered under
the Exchange Act and, in either case, a successor Clearing Agency is not appointed by the Depositor
within 90 days of such notice, (2) an Event of Default has occurred and is continuing and the
Securities Registrar has received a request from the Clearing Agency to issue Definitive Trust
Preferred Securities Certificates of each Series in lieu of all or a portion of the Book-Entry
Trust Preferred Securities (in which case an Administrative Trustee shall execute and deliver
Definitive Trust Preferred Securities Certificates within 30 days of such request), or (3) the
Depositor determines not to have the Trust Preferred Securities represented by the Book-Entry Trust
Preferred Securities Certificates.



     (e) In connection with any transfer of a portion of the beneficial interests in a Book-Entry
Trust Preferred Securities Certificate to Owners pursuant to this Section 5.11, the Securities
Registrar shall reflect on its books and records the date and a decrease in the number of
Book-Entry Trust Preferred Securities of the applicable Series in an amount equal to the number of
such Trust Preferred Securities of the applicable Series to be transferred, and an Administrative
Trustee shall execute and deliver one or more Definitive Trust Preferred Securities Certificates of
the same Series representing the appropriate number of Trust Preferred Securities of such Series.



     (f) In connection with the transfer of all the beneficial interests in a Book-Entry Trust
Preferred Securities Certificate to Owners pursuant to this Section 5.11, the Book-Entry Trust
Preferred Securities Certificates shall be deemed to be surrendered to the Securities Registrar for
cancellation, and an Administrative Trustee shall execute and deliver to each Owner identified by
the Clearing Agency in exchange for its beneficial interest in the Book-Entry Trust Preferred
Securities Certificate being canceled, a Definitive Trust Preferred Security Certificate
representing an equal number of Trust Preferred Securities of the applicable Series.



     (g) None of the Issuer Trustees, the Securities Registrar, the Paying Agent or the Depositor
will have any responsibility or liability for any acts or omissions of any Clearing Agency with
respect to any Book-Entry Trust Preferred Securities, or any aspect of the records relating to, or
payments made on account of, Trust Preferred Securities by the Clearing Agency, or for maintaining,
supervising or reviewing any records of the Clearing Agency relating to the Trust Preferred
Securities, or for any transactions between or among a Clearing Agency and a Clearing Agency
Participant and/or an Owner of a beneficial interest in any Book-Entry Trust Preferred Securities
for transfers of beneficial interests in any Book-Entry Trust Preferred Securities. None of the
Issuer Trustees, the Securities Registrar, the Paying Agent or the Depositor shall be liable for
any delay by the Clearing Agency in identifying Owners, and each such Person may conclusively rely
on, and shall be protected in relying on, instructions from the Clearing Agency for all purposes
(including with respect to the registration and delivery, in the respective amounts, of Definitive
Trust Preferred Securities Certificates to be issued).



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



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     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, for so long as Trust Preferred Securities are represented by Book-Entry Trust Preferred
Securities Certificates, the Issuer Trustees shall give all such notices and communications
specified herein to be given to Owners to the Clearing Agency, and shall have no obligation to give
such notice or other communication to the Owners.



     Section 5.13 Exchanges.



     (a) This Section 5.13 provides for the procedures pursuant to which Holders:




     (i) of Normal APEX may exchange Normal APEX and Qualifying Treasury Securities for
Stripped APEX and Capital APEX; and




     (ii) of Stripped APEX and Capital APEX may exchange Stripped APEX and Capital APEX for
Normal APEX and Pledged Treasury Securities


(each, an “Exchange”, and the terms “Exchanged”, “Exchanging” and “Exchanges” having correlative
meanings). All deposits, deliveries or transfers by a Holder pursuant to this Section 5.13 of
Normal APEX, Capital APEX and treasury securities (including Qualifying Treasury Securities) shall
be made by Book-Entry Transfer unless the recipient of such deposit, delivery or transfer expressly
agrees otherwise in writing.




     (b) Subject to the conditions set forth in this Trust Agreement, during any Exchange Period a
Holder of Normal APEX may effect an Exchange of Normal APEX and Qualifying Treasury Securities
having a principal amount equal to the Liquidation Amount of such Normal APEX for Stripped APEX and
Capital APEX, each having a Liquidation Amount equal to the Liquidation Amount of such Normal APEX
to be Exchanged, by:




     (i) depositing with the Collateral Agent the treasury security that is the Qualifying
Treasury Security on the date of deposit, in the principal amount of $1,000 for each Normal
APEX being Exchanged;




     (ii) transferring the Normal APEX being Exchanged to the Securities Registrar; and




     (iii) delivering to the Collateral Agent and the Securities Registrar, together with
the deposit of Qualifying Treasury Securities deposited pursuant to clause (i) and the
transfer of Normal APEX pursuant to clause (ii), a duly executed and completed “Stripping
Notice and Request” in the form printed on the reverse side of the form of Normal APEX
Certificate (x) stating that the Holder is depositing the appropriate Qualifying Treasury
Securities with the Collateral Agent for deposit in the Collateral Account, (y) stating that
the Holder is transferring the related Normal APEX to the Securities Registrar in connection
with an Exchange of such Normal APEX and Qualifying Treasury Securities for a Like Amount of
Stripped APEX and Capital APEX, and (z) requesting the delivery to the Holder of such
Stripped APEX and Capital APEX.



     (c) Upon the deposit and transfer pursuant to Section 5.13(b) and receipt of the notice and
request referred to in Section 5.13(b)(iii):



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     (i) the Collateral Agent will release Pledged Notes of a Like Amount from the Pledge,
transfer such Pledged Notes to the Custody Account free and clear of the Depositor’s
security interest therein, and confirm to the Property Trustee in writing that such release
and transfer has occurred;




     (ii) the Collateral Agent shall continue to hold such Notes in the Custody Account as
Custodial Agent for the Issuer Trust in connection with Capital APEX for which such Notes
are Corresponding Assets; and




     (iii) the Securities Registrar, pursuant to the procedures provided for in Section 5.11
dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by
Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Normal APEX
transferred pursuant to Section 5.13(b)(ii) and deliver a Like Amount of Stripped APEX and
Capital APEX to the Holder, all by making appropriate notations on the Book-Entry Trust
Preferred Securities Certificates of the appropriate Series.



     (d) Subject to the conditions set forth in this Trust Agreement, during any Exchange Period a
Holder of Stripped APEX and Capital APEX may effect an Exchange of Stripped APEX and Capital APEX
for Normal APEX and Pledged Treasury Securities having a principal amount equal to the Liquidation
Amount of each of the Stripped APEX and Capital APEX being Exchanged, by:




     (i) transferring the Stripped APEX and the Capital APEX being Exchanged to the
Securities Registrar; and




     (ii) delivering to the Securities Registrar, together with the transfer of Stripped
APEX and Capital APEX pursuant to clause (i), and concurrently delivering to the Collateral
Agent a duly executed and completed “Recombination Notice and Request” in the form printed
on the reverse side of the form of Capital APEX Certificate and Stripped APEX Certificate,
(x) stating that the Holder is transferring the related Stripped APEX and Capital APEX to
the Securities Registrar in connection with the Exchange of such Stripped APEX and Capital
APEX for a Like Amount of each of Normal APEX and Pledged Treasury Securities,
(y) requesting the Collateral Agent to release from the Pledge and deliver to the Holder
Pledged Treasury Securities in a principal amount equal to the Liquidation Amount of each of
the Stripped APEX and Capital APEX being exchanged, and (z) requesting the Securities
Registrar to deliver to the Holder Normal APEX of a Like Amount.



     (e) Upon the transfer pursuant to Section 5.13(d) and receipt of the notice and request
referred to in Section 5.13(d):




     (i) the Collateral Agent will release Pledged Treasury Securities of a Like Amount from
the Pledge and deliver such formerly Pledged Treasury Securities to the Holder free and
clear of the Depositor’s security interest therein, and confirm in writing to the Property
Trustee and the Administrative Trustees that such release and transfer has occurred;




     (ii) the Collateral Agent will transfer a Like Amount of Notes from the Custody Account
to the Collateral Account, re-subjecting such Notes to the Pledge; and




     (iii) the Securities Registrar, pursuant to the procedures provided for in Section 5.11
dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by
Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Stripped APEX
and Capital APEX delivered pursuant to Section 5.13(d) and deliver a Like Amount of Normal



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APEX to the Holder, all by making appropriate notations on the Book-Entry Trust
Preferred Securities Certificates of the appropriate Series.



     Section 5.14 Remarketing Elections.



     (a) This Section 5.14 provides for the procedures pursuant to which a Holder:




     (i) of Normal APEX may elect (a “Contingent Exchange Election”) to cause the Pledged
Notes that are Corresponding Assets for such Holder’s Normal APEX not to be offered in a
Remarketing, with the consequence that such Holder will receive in exchange Stripped APEX
and Capital APEX in a Like Amount if the Remarketing is Successful; and




     (ii) of Capital APEX may elect (a “Contingent Disposition Election”) to cause the Notes
that are Corresponding Assets for such Holder’s Capital APEX to be offered in the
Remarketing, with the consequence that such Holder will receive the cash proceeds, net of
the allocable portion of the Remarketing Agent’s fee, of the Remarketing of such Notes.



     (b) Upon the written instruction of the Depositor, the Property Trustee shall give appropriate
instructions to the Collateral Agent and the Remarketing Agent in accordance with the Remarketing
Agreement to offer for sale in each Remarketing, and if the Remarketing is Successful sell as part
of such Remarketing, a principal amount of Notes (or, if the Depositor shall have elected to
remarket the Notes in the form of New Trust Preferred Securities, a liquidation amount of New Trust
Preferred Securities) equal to 100% of the principal amount of Notes included in the Trust Property
minus the sum of (x) the Liquidation Amount of Normal APEX as to which a Contingent Exchange
Election has been made and (y) the Liquidation Amount of Capital APEX other than Capital APEX as to
which a Contingent Disposition Election has been made.



     (c) All deposits, deliveries or transfers by a Holder pursuant to this Section 5.14 of Normal
APEX, Capital APEX and treasury securities (including Qualifying Treasury Securities) shall be made
by Book-Entry Transfer unless the recipient of such deposit, delivery or transfer expressly agrees
otherwise in writing.



     (d) Subject to the conditions set forth in this Trust Agreement, a Holder of Normal APEX may
make a Contingent Exchange Election by:




     (i) during the period that commences with the Collateral Agent’s and the Securities
Registrar’s opening of normal business hours on the tenth Business Day immediately preceding
the first day of a Remarketing Period and ending at 3:00 P.M., New York City time, on the
second Business Day immediately preceding the first day of such Remarketing Period,
transferring the Normal APEX that are the subject of such Contingent Exchange Election to
the Securities Registrar, accompanied by a duly executed and completed “Notice of Contingent
Exchange Election” in the form printed on the reverse side of the form of Normal APEX
Certificate; and




     (ii) by not later than 3:00 P.M., New York City time, on the second Business Day
immediately preceding the first day of such Remarketing Period, depositing with the
Collateral Agent, the treasury security that is the Qualifying Treasury Security on the date
of deposit, in the amount of $1,000 for each Normal APEX that is subject to the Contingent
Exchange Election.



     (e) If a Holder has made an effective Contingent Exchange Election in accordance with the
foregoing provisions:



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     (i) if the related Remarketing is Successful:




     (x) the Collateral Agent will release Pledged Notes of a Like Amount from the
Pledge, transfer such Notes to the Custody Account free and clear of the Depositor’s
security interest therein, deposit in the Collateral Account as Pledged Treasury
Securities the Qualifying Treasury Securities deposited with the Collateral Agent
pursuant to Section 5.14(d)(ii) and confirm to the Property Trustee and the
Administrative Trustees in writing that such release of transfers has occurred;




     (y) the Collateral Agent shall continue to hold such Notes in the Custody
Account as Custodial Agent for the Issuer Trust in connection with Capital APEX for
which such Notes are Corresponding Assets; and




     (z) the Securities Registrar, pursuant to the procedures provided for in
Section 5.11 dealing with increasing and decreasing the number of Trust Preferred
Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall
cancel the number of Normal APEX transferred pursuant to Section 5.14(d)(i) and
deliver a Like Amount of Capital APEX and Stripped APEX to the Holder, all by making
appropriate notations on the Book-Entry Trust Preferred Securities Certificates of
the appropriate Series; and




     (ii) if the related Remarketing is not Successful:




     (x) promptly after the last day of the Remarketing Period, the Collateral Agent
will deliver back to such Holder the Qualifying Treasury Securities delivered by
such Holder to the Collateral Agent pursuant to the Section 5.14(d)(ii); and




     (y) the Securities Registrar will disregard the delivery by such Holder of
Normal APEX pursuant to Section 5.14(d)(i), with the consequence that such Holder
shall be deemed continued to hold such Normal APEX.



     (f) Subject to the conditions set forth in this Trust Agreement, a Holder of Capital APEX may
make a Contingent Disposition Election by, during the period that commences with the Securities
Registrar’s opening of normal business hours on the tenth Business Day immediately preceding the
first day of a Remarketing Period and ending at 3:00 P.M., New York City time, on the second
Business Day immediately preceding the first day of such Remarketing Period, transferring the
Capital APEX that are the subject of such Contingent Disposition Election to the Securities
Registrar, accompanied by a duly completed “Notice of Contingent Disposition Election” in the form
printed on the reverse side of the form of Capital APEX Certificate.



     (g) If a Holder has made an effective Contingent Disposition Election in accordance with the
foregoing provisions:




     (i) if the related Remarketing is Successful:




     (x) the Securities Registrar, pursuant to the procedures provided for in
Section 5.11 dealing with increasing and decreasing the number of Trust Preferred
Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall
cancel the number of Capital APEX transferred pursuant to Section 5.14(f); and



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     (y) on or promptly after the Remarketing Settlement Date, the Collateral Agent
will pay to the Property Trustee or its designee, and the Property Trustee through
the Paying Agent will pay to such Holder, an amount in cash for each Capital APEX
subject to such Contingent Disposition Election equal to the proceeds of sale of
$1,000 principal amount of Notes, net of a pro rata portion of the Remarketing
Agent’s fee, in the Remarketing; and




     (ii) if the Remarketing is not Successful, the Securities Registrar will disregard the
delivery by such Holder of Capital APEX pursuant to Section 5.14(f), with the consequence
that such Holder shall continue to hold such Capital APEX.



     Section 5.15 Definitive Trust Preferred Securities Certificates.



     The Trust Preferred Securities Certificates issued at the Time of Delivery shall be issued as
Book-Entry Trust Preferred Securities Certificates in accordance with Section 2.4. Additionally,
if (a) the Depositor advises the Issuer Trustees in writing that the Clearing Agency is no longer
willing or able to properly discharge its duties with respect to the Trust Preferred Securities
Certificates and the Depositor is unable locate a qualified successor, (b) the Depositor at its
option advises the Issuer Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency, or (c) after the occurrence of a Note Event of Default, Owners of
Trust Preferred Securities Certificates representing beneficial interests aggregating at least a
Majority in Liquidation Amount of the Trust Preferred Securities of all Series, considered together
as a single Series, 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
Trust Preferred Securities Certificates, then the Administrative Trustees shall notify the other
Issuer Trustees and the Clearing Agency, and the Clearing Agency shall notify all Owners of Trust
Preferred Securities of the occurrence of any such event and of the availability of the Definitive
Trust Preferred Securities Certificates to Owners of such series, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the Trust Preferred Securities Certificate
or Certificates representing the Book-Entry Trust Preferred Securities Certificates by the Clearing
Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Trust Preferred Securities Certificates in accordance with the
instructions of the Clearing Agency. Neither the Securities Registrar nor the Issuer 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 Trust
Preferred Securities Certificates, the Issuer Trustees shall recognize the Holders of the
Definitive Trust Preferred Securities Certificates as holders of Trust Securities. The Definitive
Trust Preferred 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 Trust
Preferred Securities are then listed or approved for trading, as evidenced by the execution thereof
by the Administrative Trustees or any one of them.



     Section 5.16 Rights of Securityholders; Waivers of Past Defaults.



     (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in
its capacity as such), on behalf of the Issuer Trust, subject to and in accordance with
Section 2.9, and the Holders shall not have any right or title therein other than the beneficial
interest in the Issuer Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Issuer Trust except as
described below. The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Preferred Securities shall
have no preemptive or similar rights and when issued and delivered to Holders against payment of
the purchase price therefor will be fully paid and nonassessable beneficial



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interests in the Issuer Trust. The Holders of the Trust Securities, in their capacities as
such, shall be entitled to the same limitation of personal liability extended to shareholders of
private corporations for profit organized under the General Corporation Law of the State of
Delaware.




     (b) For so long as any Trust Preferred Securities of the Affected Series remain Outstanding,
if, upon a Note Event of Default, the Note Trustee fails or the holders of not less than 25% in
principal amount of the outstanding Notes fail to declare the principal of all of the Notes to be
immediately due and payable, the Property Trustee or the Holders of at least 25% in Liquidation
Amount of the Trust Preferred Securities of the Affected Series then Outstanding, considered
together as a single class, shall have the right to make such declaration by a notice in writing to
the Depositor, the Note Trustee and the Property Trustee, in the case of notice by the Holders of
the Trust Preferred Securities of the Affected Series, or to the Depositor, the Note Trustee and
the Holders of the Trust Preferred Securities of the Affected Series, in the case of notice by the
Property Trustee, and upon any such declaration such principal amount of and the accrued interest
on all of the Notes shall become immediately due and payable as provided in the Indenture,
provided, however, that the payment of principal and interest on such Notes shall remain
subordinated to the extent provided in the Indenture.



     At any time after a declaration of acceleration with respect to the Notes has been made and
before a judgment or decree for payment of the money due has been obtained by the Note Trustee as
provided in the Indenture, the Holders of at least a Majority in Liquidation Amount of the Trust
Preferred Securities of the Affected Series, considered together as a single class, by written
notice to the Property Trustee, the Depositor and the Note Trustee, may rescind and annul such
declaration and its consequences if:




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




     (A) all overdue installments of interest (including any Additional Interest (as
defined in the Indenture)) on all of the Notes,




     (B) the principal of (and premium, if any, on) any Notes that have become due
otherwise than by such declaration of acceleration and interest (including any
Additional Interest (as defined in the Indenture)) thereon at the rate borne by the
Notes, and




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




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



     The Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of
the Affected Series, considered together as a single class, may, on behalf of the Holders of all
the Trust Preferred Securities of the Affected Series, waive any past default under the Indenture,
except a default in the payment of principal or interest (unless such default has been cured or
annulled as provided in Section 5.3 of the Indenture and the Depositor has paid or deposited with
the Note Trustee a sum sufficient to pay all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on the Notes, the principal of (and premium, if
any, on) any Notes which have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Notes, and all sums paid or advanced by the Note Trustee
under the Indenture and the reasonable compensation, expenses, disbursements and advances of the
Note Trustee and the Property Trustee, their agents and



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counsel) or a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding Note. 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 any part of the Trust Preferred Securities of the
Affected Series a record date shall be established for determining Holders of Outstanding Trust
Preferred Securities of the Affected Series entitled to join in such notice, which record date
shall be at the close of business on the day the Property Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such notice, whether or not such Holders remain Holders after such record date;
provided, however, that unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite percentage having joined in
such notice prior to the day that is 90 days after such record date, such notice of declaration of
acceleration, or rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a
new written notice of declaration of acceleration, or rescission and annulment thereof, as the case
may be, that is identical to a written notice that has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.16(b).



     (c) For so long as any Trust Preferred Securities of the Affected Series remain Outstanding,
to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Note Event of Default specified in the Indenture Supplement, any Holder of Trust
Preferred Securities of the Affected Series shall have the right to institute a proceeding directly
against the Depositor, pursuant to Section 5.8 of the Base Indenture, for enforcement of payment to
such Holder of any amounts payable in respect of a Like Amount of Notes (a “Direct Action”).
Except as set forth in Section 5.16(b) and this Section 5.16(c), the Holders of Trust Preferred
Securities of the Affected Series shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Notes.



     (d) For so long as any Trust Preferred Securities of the Affected Series remain Outstanding,
to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the
Stock Purchase Contract Agreement, if the Depositor fails to pay when due any Contract Payments
under the Stock Purchase Contract Agreement (after giving effect to the Depositor’s deferral right
under Section 2.7 of the Stock Purchase Contract Agreement), any Holder of Trust Preferred
Securities of the Affected Series shall have the right to institute a proceeding directly against
the Depositor, pursuant to Section 3.1 of the Stock Purchase Contract Agreement, for enforcement of
payment to such Holder of any amounts payable in respect of a Like Amount of Stock Purchase
Contracts (also a “Direct Action”). Except as set forth in this Section 5.16(d), the Holders of
Trust Preferred Securities of the Affected Series shall have no right to exercise directly any
right or remedy under the Stock Purchase Contract Agreement available to the Issuer Trust (acting
through the Property Trustee) as a party thereto.



     (e) Except as otherwise provided in Sections 5.16(a), (b), (c) and (d), the Holders of at
least a Majority in Liquidation Amount of the Trust Preferred Securities may, on behalf of the
Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any
default or Event of Default arising there from shall be deemed to have been cured, for every
purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.



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     Section 5.17 CUSIP Numbers.



     The Administrative Trustees in issuing the Trust Preferred 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, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as printed on the Trust
Preferred 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 Trust Preferred 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.



     Section 5.18 Remarketing Procedures.



     (a) The Depositor will give notice to the Property Trustee of a Remarketing at least 28 days
prior to the first day of the related Remarketing Period. Upon written instruction of the
Depositor (accompanied by a notice prepared in accordance with the requirements of this Section
5.18), the Property Trustee will give holders of Normal APEX and Capital APEX, and will request
that the Clearing Agency give to its participants holding Normal APEX or Capital APEX, notice of a
Remarketing at least 21 days prior to the first day of the related Remarketing Period. Such
notices will set forth:




     (i) the beginning and ending dates of the Remarketing Period and the applicable
Remarketing Settlement Date and Stock Purchase Date in the event the Remarketing is
Successful;




     (ii) the applicable Distribution Dates and record dates for Distributions on the Normal
APEX and Capital APEX;




     (iii) for interest periods for the Notes commencing on or after the Remarketing
Settlement Date, the applicable interest payment dates and related record dates;




     (iv) any change in the stated maturity date of the Notes and, if applicable, the date
on and after which the Depositor will have the right to redeem the Notes other than pursuant
to a Special Event (which is subject to Section 3.2 of the Indenture Supplement);




     (v) whether, in connection with an Early Remarketing that is not the first scheduled
Remarketing, the Depositor’s obligations under the Notes will no longer be subordinated to
Senior Debt (as defined in the Indenture) and no longer be subject to deferral after the
Remarketing Settlement Date;




     (vi) any other changes in the terms of the Notes notified by the Depositor in
connection with such Remarketing pursuant to Section 3.2 of the Indenture Supplement
(including on a Final Remarketing that is a Failed Remarketing, any change in the Stated
Maturity Date (as defined in the Indenture) and, if applicable, the date on or after which
the Issuer Trust will have the right to redeem the Notes other than pursuant to a Special
Event (which is subject to Section 3.2 of the Indenture Supplement));




     (vii) the procedures a Holder of Normal APEX must follow to elect to exchange its
Normal APEX for Stripped APEX and Capital APEX if the Remarketing is Successful, and the
date by which such election must be made; and



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     (viii) the procedures a Holder of Capital APEX must follow to elect to dispose of its
Capital APEX in connection with a Remarketing and the date by which such election must be
made.



ARTICLE VI




Acts of Holders; Meetings; Voting




     Section 6.1 Limitations on Voting Rights.



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



     (b) So long as any Notes are held by the Property Trustee on behalf of the Issuer Trust, the
Issuer Trustees shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Note Trustee, or execute any trust or power conferred on the Note
Trustee with respect to the Notes, (ii) waive any past default that may be waived under
Section 5.13 of the Base Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Notes shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Notes, where such consent shall be required by
the Holders of the Notes pursuant to the terms of the Indenture, without, in each case, obtaining
the prior approval of the Holders of at least a Majority in Liquidation Amount of the Normal APEX
and the Capital APEX then Outstanding, considered together as a single class; provided, however,
that where a consent under the Indenture would require the consent of each holder of Notes affected
thereby, no such consent shall be given by the Property Trustee without the prior written consent
of each Holder of Normal APEX and Capital APEX. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Normal APEX and the Capital APEX,
except by a subsequent vote of the Holders of the Normal APEX and the Capital APEX. The Property
Trustee shall notify all Holders of the Normal APEX and the Capital APEX of any notice of default
received with respect to the Notes. In addition to obtaining the foregoing approvals of the
Holders of the Normal APEX and the Capital APEX, prior to taking any of the foregoing actions, the
Issuer 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 Issuer Trust to be classified as an
association or a publicly traded partnership taxable as a corporation or as other than one or more
grantor trusts or agency arrangements for United States Federal income tax purposes.



     (c) For so long as any Stock Purchase Contracts are outstanding, at the request of the
Depositor the Property Trustee may consent to any amendment to or modification of the Stock
Purchase Contract Agreement or the Collateral Agreement, without having obtained the prior approval
of the Holders of any Trust Preferred Securities to such amendment or modification, for the
purposes of (i) evidencing the succession of another person to the Issuer Trust’s or the Property
Trustee’s obligations thereunder, (ii) adding to the covenants therein for the benefit of the
Issuer Trust or the Property Trustee or to surrender any of the Depositor’s rights or powers
thereunder, (iii) evidencing and providing for the acceptance of appointment of a successor
Collateral Agent, Custodial Agent or Securities Intermediary under the Collateral Agreement,
(iv) curing any ambiguity, or correcting or supplementing any provisions that may be inconsistent,
(v) conforming the terms of the Stock Purchase Contract Agreement or the Collateral Agreement, to
the descriptions thereof in the Prospectus, or (vi) making any other provisions with respect to
such matters or questions, provided, however, that such action pursuant to this clause (vi)



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shall not adversely affect the interest of the Holders of Trust Preferred Securities of any
Series in any material respect. At the request of the Depositor the Property Trustee may, with the
consent of the Holders of not less than a Majority in Liquidation Amount of the Normal APEX and
Stripped APEX then Outstanding, considered together as a single class, agree to any other amendment
to or modification of the Stock Purchase Contract Agreement or the Collateral Agreement, except
that, without obtaining the prior written consent of each Holder of Normal APEX and Capital APEX
then Outstanding, the Issuer Trustees may not agree to any amendment or modification that would
(A) change any payment dates for Contract Payments, (B) change the amount or type of Pledged Notes
or Pledged Treasury Securities required to be pledged under the Collateral Agreement, impair the
right of the Property Trustee (on behalf of the Issuer Trust) to receive distributions on Pledged
Notes or Pledged Treasury Securities or otherwise adversely affect the Issuer Trust’s rights in or
to the Pledged Notes or Pledged Treasury Securities, (C) change the place or currency or reduce any
Contract Payments, (D) impair the Property Trustee’s right (or any Holder’s right pursuant to
Section 5.16(d)) to institute suit for the enforcement of the Stock Purchase Contracts or payment
of any Contract Payments, or (E) reduce the number of shares of Preferred Stock purchasable under
the Stock Purchase Contracts, increase the price to purchase Preferred Stock upon settlement of the
Stock Purchase Contracts, change the Stock Purchase Date or otherwise adversely affect the Issuer
Trust’s rights under the Stock Purchase Contracts.




     (d) So long as any shares of Preferred Stock are held by the Property Trustee on behalf of the
Issuer Trust, the Issuer Trustees shall not waive any Preferred Stock Default without obtaining the
prior approval of the Holders of at least a Majority in Liquidation Amount of the Normal APEX and
the Stripped APEX then Outstanding, considered together as a single class. Additionally, in
addition to and notwithstanding the foregoing, the Issuer Trustees shall not consent to any
amendment to the Certificate of Designation or the Depositor’s certificate of incorporation that
would change the dates on which dividends are payable on the Preferred Stock or the amount of such
dividends, without the prior written consent of each Holder of Normal APEX and Stripped APEX. In
addition to obtaining the foregoing approvals of the Holders of Normal APEX and Stripped APEX,
prior to taking any of the foregoing actions, the Property Trustee shall, at the expense of the
Depositor, obtain an Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Issuer Trust to be classified as an association or a publicly traded
partnership taxable as a corporation or as other than one or more grantor trusts or agency
arrangements for United States Federal income tax purposes.



     (e) If any proposed amendment to or modification of this Trust Agreement, the Stock Purchase
Contract Agreement or the Collateral Agreement provides for, or any of the Issuer Trustees
otherwise proposes to effect, any action that would adversely affect in any material respect the
powers, preferences or special rights of the Trust Preferred Securities of any Series in a manner
that is different from the manner in which it would affect the Trust Preferred Securities of other
Series, whether by way of amendment to or modification of this Trust Agreement, the Stock Purchase
Contract Agreement or the Collateral Agreement or otherwise, then the Holders of the Outstanding
Trust Preferred Securities of such Series will be entitled to vote on such amendment or proposal
and such amendment or proposal shall not be effective except with the approval of the Holders of at
least a Majority in Liquidation Amount of the Trust Preferred Securities of such Series.
Notwithstanding any other provision of this Trust Agreement, no amendment to this Trust Agreement
may be made if, as a result of such amendment, it would cause the Issuer Trust to be classified as
an association or publicly traded partnership taxable as a corporation or as other than one or more
grantor trusts or agency arrangements for United States Federal income tax purposes.



     (f) No amendment to or modification of any Transaction Document that adversely affects the
rights, duties or immunities of the Securities Registrar, the Paying Agent, the Collateral Agent,
the Securities Intermediary or the Custodial Agent shall be effective as against any such affected
party without its consent.



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     (g) The Property Trustee may request a vote or seek the consent of the Holders of the
applicable series of APEX in connection with any matters on which it is permitted to exercise
voting or other consensual rights with respect to the Notes pursuant to Section 7.01 of the
Collateral Agreement.



     Section 6.2 Notice of Meetings.



     Notice of all meetings of the Holders of the Trust Preferred Securities of any one or more
Series, stating the time, place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 12.9 to each Holder of Trust Preferred Securities of each Series entitled to
attend such meeting, at such Holder’s 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 Securityholders of the Trust Preferred Securities.



     No annual meeting of Securityholders is required to be held. The Administrative Trustees,
however, shall call a meeting of the Securityholders of the Trust Preferred Securities of a Series
to vote on any matter upon the written request of the Securityholders of at least 25% in aggregate
Liquidation Amount of the Outstanding Trust Preferred Securities of such Series; the Administrative
Trustees shall call a meeting of the Securityholders of the Trust Preferred Securities of all
Series to vote on any matter upon the written request of the Securityholders of at least 25% in
aggregate Liquidation Amount of the Outstanding Trust Preferred Securities of all Series,
considered together; and the Administrative Trustees or the Property Trustee may, at any time in
their discretion, call a meeting of the Holders of the Trust Preferred Securities of any Series to
vote on any matters as to which such Holders are entitled to vote.



     The Holders of record of 50% of the Trust Preferred Securities of the Applicable Series
entitled to attend a meeting, present in person or by proxy, shall constitute a quorum at any
meeting of the Securityholders of the Trust Preferred Securities.



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



     Section 6.4 Voting Rights.



     Holders shall be entitled to one vote for each $1,000 of Liquidation Amount represented by
their Outstanding 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 Holders, any Holder entitled to vote thereat may vote by proxy, provided,
however, that no proxy shall be voted at any meeting unless it shall have been placed on file with
the Property Trustee, or with such other officer or agent of the Issuer Trust as the Property
Trustee may direct, for verification prior to the time at which such vote shall be taken. Pursuant
to a resolution of the Property Trustee, proxies may be solicited in the name of the Property
Trustee or one or more officers of the Property Trustee. Only Holders of record shall 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,



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




     Section 6.6 Holder Action by Written Consent.



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



     Section 6.7 Record Date for Voting and Other Purposes.



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



     Section 6.8 Acts of Holders.



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



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



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



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



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



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



     A Holder may institute a legal proceeding directly against the Depositor under the Guarantee
Agreement to enforce its rights under the Guarantee Agreement without first instituting a legal
proceeding against the Issuer Trust or any person or entity.



     Section 6.9 Inspection of Records.



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



     Section 6.10 All Votes Must Be Made by a United States Person.



     Voting and consensual rights available to or in favor of Holders or Owners under this Trust
Agreement may be exercised only by a United States Person that is a beneficial owner of a Trust
Security or by a United States Person acting as irrevocable agent with discretionary powers for the
beneficial owner of a Trust Security that is not a United States Person. Holders that are not
United States Persons must irrevocably appoint a United States Person with discretionary powers to
act as their agent with respect to such voting and consensual rights.



ARTICLE VII




Representations and Warranties




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



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




     (a) the Property Trustee is a national banking association, duly organized and validly
existing under the laws of the United States;




     (b) the Property Trustee has full 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 banking corporation, duly organized and validly existing
under the laws of the State of Delaware with its principal place of business in the State of
Delaware;



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     (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; and




     (f) the execution, delivery and performance of this Trust Agreement do not require any
approval of stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not violate the charter or by-laws of the Property
Trustee or the Delaware Trustee.



     Section 7.2 Representations and Warranties of Depositor.



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




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




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



ARTICLE VIII




The Issuer Trustees




     Section 8.1 Certain Duties and Responsibilities.



     (a) The duties and responsibilities of the Issuer 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 any of the Issuer Trustees to
expend or risk its or their own funds or otherwise incur any financial liability in the performance
of any of its or their duties hereunder, or in the exercise of any of its or their rights or
powers, if it or they shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Trust Agreement relating to the conduct or
affecting the liability of or affording protection to the Issuer Trustees shall be subject to the
provisions of this Section. To the extent that, at law or in equity, an Issuer Trustee has duties
and liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee shall not be
liable to the Issuer Trust or to any Holder for such Issuer Trustee’s good faith reliance on the
provisions of this Trust Agreement. Except as otherwise required by the Trust Indenture Act and
the Commission’s rules thereunder applicable to indentures qualified under such Act, the provisions
of this



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Trust Agreement, to the extent that they restrict the duties and liabilities of the Issuer
Trustees otherwise existing at law or in equity, are agreed by the Depositor and the Holders to
replace such other duties and liabilities of the Issuer Trustees.




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



     (c) The Property Trustee, before the occurrence of any Event of Default and after the curing
of all Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Trust Agreement (including pursuant to Section 12.11), and no
implied covenants shall be read into this Trust Agreement against the Property Trustee.



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




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




     (A) the duties and obligations of the Property Trustee shall be determined
solely by the express provisions of this Trust Agreement (including pursuant to
Section 12.11), and the Property Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Trust Agreement (including pursuant to Section 12.11); and




     (B) in the absence of bad faith on the part of the Property Trustee, the
Property Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the requirements of this Trust
Agreement; but in the case of any such certificates or opinions that by any
provision hereof or of the Trust Indenture Act are specifically required to be
furnished to the Property Trustee, the Property Trustee shall be under a duty to
examine the same to determine whether or not they conform on their face to the
requirements of this Trust Agreement;




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




     (iii) the Property Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction (and the
Property Trustee shall be entitled in writing to request, and upon such request to receive
such written direction) of the Depositor or the Holders of at least a Majority in
Liquidation Amount of the Trust Preferred Securities of all Affected Series considered
together as a single Series, relating to



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the time, method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;




     (iv) the Property Trustee’s sole duty with respect to the custody, safekeeping and
physical preservation of the Notes and the Payment Account shall be (A) before the
occurrence of any Event of Default and after the curing of all Events of Default that may
have occurred, to undertake to perform only such duties as are specifically set forth in
this Trust Agreement and the Trust Indenture Act, and (B) in case an Event of Default has
occurred (that has not been cured or waived pursuant hereto), to exercise such of the rights
and powers vested in it by this Trust Agreement, and use the same degree of care and skill
in its exercise thereof, as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement and the Trust
Indenture Act;




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




     (vi) the Property Trustee shall not be responsible for monitoring the compliance by the
Administrative Trustees, the Depositor, the Collateral Agent, the Securities Registrar, the
Custodial Agent, the Paying Agent, the Remarketing Agent or any other Person, with their
respective duties under this Trust Agreement or any Transaction Document, nor shall the
Property Trustee be liable for the default or misconduct of any other Issuer Trustee, the
Depositor, the Collateral Agent, the Securities Registrar, the Custodial Agent, the Paying
Agent, the Remarketing Agent or any other Person.



     Section 8.2 Certain Notices.



     Within 30 days after the occurrence of any Event of Default actually known to a Responsible
Officer of the Property Trustee or the Administrative Trustees, the Property Trustee or the
Administrative Trustees shall transmit, in the manner and to the extent provided in Section 12.9,
notice of such Event of Default to the Holders of each Affected Series, unless such Event of
Default shall have been cured or waived.



     For so long as Notes are included within the Trust Property, 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 Notes pursuant to the Indenture, the Property Trustee or the Administrative Trustees shall
transmit, in the manner and to the extent provided in Section 12.9, notice of such exercise to the
Holders of the Normal APEX and the Capital APEX, unless by like notice such exercise shall have
been revoked.



     If during any calendar year any original issue discount shall have accrued on the Notes, the
Depositor shall file with each Paying Agent (including the Property Trustee if it is a Paying
Agent) promptly at the end of such calendar year (i) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on outstanding Notes as
of the end of such year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to
time.



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     For so long as Stock Purchase Contracts are included within the Trust Property, within five
Business Days after the receipt of notice of the Depositor’s exercise of its right to defer
Contract Payments, the Property Trustee or the Administrative Trustees shall transmit, in the
manner and to the extent provided in Section 12.9, notice of such exercise to the Holders of the
Normal APEX and the Stripped APEX, unless such exercise shall have been revoked.



     For so long as shares of Preferred Stock are included within the Trust Property, within five
Business Days after the receipt of notice of the Depositor’s determination not to pay dividends on
a dividend payment date, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 12.9, notice of such decision to the Holders of the Normal APEX and Stripped
APEX, unless such notice shall have been revoked.



     The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the
Property Trustee shall have received written notice or a Responsible Officer of the Property
Trustee having direct responsibility for the administration of this Trust Agreement shall have
obtained actual knowledge of such Event of Default.



     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, judgment,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document
(including e-mail, facsimile or other electronic transmission) believed by it to be genuine
and to have been signed or presented by the proper Person or Persons (without being required
to determine the correctness of any fact stated therein);




     (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action, (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 Holders of the Trust Preferred Securities are entitled to vote under
the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting the Depositor’s opinion as to the course of action to be taken;
provided, however, that if the Depositor fails to deliver such opinion, the Property Trustee
may take such action, or refrain from taking such action, as the Property Trustee shall deem
advisable and in the interests of the Holders, 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 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 Trust (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon
an Officers’ Certificate that, upon receipt of such request, shall be promptly delivered by
the Depositor;



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     (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 re-registration
thereof;




     (f) the Property Trustee may consult with counsel of its own 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
Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the
Property Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses and liabilities that 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
Holders, 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, and the
Property Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent or attorney appointed with due care by it hereunder;




     (j) whenever in the administration of this Trust Agreement the Property Trustee shall
deem it desirable to receive instructions with respect to enforcing any remedy or right or
taking any other action hereunder, the Property Trustee (i) may request instructions from
the Holders (which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the Property
Trustee under the terms of the Trust Securities in respect of such remedy, right or action),
(ii) may refrain from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in accordance with such
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 any
Issuer 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 such
Person shall be unqualified or incompetent in accordance with applicable law, to perform any such
act or acts, or to exercise any such right, power, duty or obligation. No permissive power or
authority available to any Issuer Trustee shall be construed to be a duty.



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     Section 8.4 Not Responsible for Recitals or Issuance of Securities.



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



     Section 8.5 May Hold Securities.



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



     Section 8.6 Compensation; Indemnity; Fees.



     The Depositor agrees:




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




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




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



     The provisions of this Section 8.6 shall survive the termination of this Trust Agreement and
the removal or resignation of any Issuer Trustee. No Issuer Trustee may claim any Lien on any
Trust Property as a result of any amount due pursuant to this Section 8.6.



     Notwithstanding any provision of law or equity, subject to Section 8.8, the Depositor or any
Issuer Trustee in its individual capacity may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or dissimilar to the
business of the Issuer




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Trust, and the Issuer Trust and the Holders of Trust Securities shall have no rights by virtue
of this Trust Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the business of the Issuer
Trust, shall not be deemed wrongful or improper. Notwithstanding any provision of law or equity,
neither the Depositor nor any Issuer Trustee shall be obligated to present any particular
investment or other opportunity to the Issuer Trust even if such opportunity is of a character
that, if presented to the Issuer Trust, could be taken by the Issuer Trust, and the Depositor and
any Issuer Trustee shall have the right to take for its own account (individually or as a partner
or fiduciary) or to recommend to others any such particular investment or other opportunity.
Notwithstanding any provision of law or equity, any Issuer Trustee in its individual capacity may
engage or be interested in any financial or other transaction with the Depositor or any Affiliate
of the Depositor, or may act as Depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Depositor or its Affiliates.



     Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees and
Administrative 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 a national or state chartered bank and
eligible pursuant to the Trust Indenture Act to act as such and that has a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such Person shall be deemed
to be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust Securities shall cease to
be eligible in accordance with the provisions of this Section, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.



     (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.



     (c) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be
(i) a natural person who is at least 21 years of age and a resident of the State of 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 and that shall act through one or more
persons authorized to bind such entity.



     Section 8.8 Conflicting Interests.



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



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



     Section 8.9 Co-Trustees and Separate Trustee.



     Unless and until a Note Event of Default shall have occurred and be continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located, the Holder of
Common Securities and




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the Administrative Trustees, by agreed action of the majority of such Issuer 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 the execution, delivery and
performance of all instruments and agreements necessary or proper to appoint, one or more Persons
either to act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of appointment, and to vest in
such Person or Persons in the capacity aforesaid, any property, title, right or power deemed
necessary or desirable, subject to the other provisions of this Section. If the Depositor does not
join in such appointment within 15 days after the receipt by it of a request to do so, or in case a
Note Event of Default has occurred and is continuing, the Property Trustee shall have the sole
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. Any co-trustee or
separate trustee shall not be required to meet the other
qualifications in Section 8.7(a).



     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 Issuer Trustees
specified hereunder shall be exercised solely by the Issuer 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 Note Event of
Default has occurred and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the Depositor shall
join with the Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigning 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.




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     (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 Issuer Trustee (the “Relevant Trustee”) and no appointment of
a successor Issuer Trustee pursuant to this Article VIII shall become effective until the
acceptance of appointment by the successor Issuer 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 Holders. If the instrument of acceptance by the successor
Issuer 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 Issuer Trust, any court of competent jurisdiction for the appointment of a
successor Relevant Trustee.



     Unless a Note Event of Default shall have occurred and be continuing, any Issuer Trustee may
be removed at any time by Act of the Common Securityholder. If a Note 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 Act of the Common Securityholder at any time.



     If any Issuer Trustee shall resign, be removed or become incapable of acting as Issuer
Trustee, or if a vacancy shall occur in the office of any Issuer Trustee for any cause, at a time
when no Note Event of Default shall have occurred and be continuing, the Common Securityholder, by
Act of the Common Securityholder delivered to the retiring Issuer Trustee, shall promptly appoint a
successor Issuer Trustee or Issuer Trustees, and the retiring Issuer 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 Note Event of Default shall have occurred and be
continuing, the Trust Preferred Securityholders, by Act of the Securityholders of a majority in
Liquidation Amount of the Trust Preferred Securities then Outstanding delivered to the retiring
Relevant Trustee, with a copy to the Property 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 Note Event of Default shall have occurred and be
continuing, the Common Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee, with a copy to the Property 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, the retiring Relevant Trustee, at
the expense of the Issuer Trust, or 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, may
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 an Issuer
Trustee and each appointment of a successor Issuer Trustee to all Holders in the manner provided in
Section 12.9




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and shall give notice to the Depositor. Each notice shall include the name of the successor
Relevant Trustee 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 any 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 the Administrative Trustees
or Delaware Trustee, as the case may be, set forth in Section 8.7).



     Section 8.11 Acceptance of Appointment by Successor.



     In case of the appointment hereunder of a successor Issuer Trustee, such successor Issuer
Trustee shall execute, acknowledge and deliver to the retiring Issuer Trustee an instrument
accepting such appointment and thereupon the resignation or removal of the retiring Issuer Trustee
shall become effective to the extent provided therein and each such successor Issuer Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on request of the Depositor or any successor Issuer
Trustee such retiring Issuer Trustee shall upon payment of its charges, execute and deliver an
instrument transferring to such successor Issuer Trustee all the rights, powers and trusts of the
retiring Issuer Trustee and if the Property Trustee is the resigning Issuer Trustee shall duly
assign, transfer and deliver to the successor Issuer Trustee all property and money held by such
retiring Property Trustee hereunder.



     In case of the appointment hereunder of a successor Relevant Trustee, if requested by the
Depositor, the retiring Relevant Trustee 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 Issuer Trust and (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the administration of the Issuer
Trust by more than one Relevant Trustee, it being understood that nothing herein or in such
amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery
of such amendment the resignation or removal of the retiring Relevant Trustee shall become
effective to the extent provided therein and each such successor Relevant Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Issuer Trust or any successor Relevant
Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor
Relevant Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Issuer Trust.



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



     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.




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     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, however, that 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 Issuer Trust.



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



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



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



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



     Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the 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) Not later than May 15 of each year commencing with May 15, [       ], the Property Trustee
shall transmit to all Holders in accordance with Section 12.9, and to the Depositor, a brief report
dated as of the immediately preceding December 31 with respect to:




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




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     (ii) a statement that the Property Trustee has complied with all of its obligations
under this Trust Agreement during the twelve-month period (or, in the case of the initial
report, the period since the Closing Date) ending with such December 31 or, if the Property
Trustee has not complied in any material respect with such obligations, a description of
such noncompliance; and




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



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



     (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by
the Property Trustee with each national stock exchange or interdealer quotation system or
self-regulatory organization upon which the Trust Preferred Securities are listed or quoted, if
any, and with the Commission and the Depositor.



     Section 8.15 Reports to the Property Trustee.



     The Depositor and the Administrative Trustees on behalf of the Issuer 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.



     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 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 Issuer Trustees.



     (a) The
number of Issuer Trustees shall be five, provided, however, 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 an Issuer 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 Issuer Trustees is
increased pursuant to clause (a), a vacancy shall occur. The vacancy shall be filled with an
Issuer Trustee appointed in accordance with Section 8.10.



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




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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 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 governmental filing.



     (b) The Administrative Trustees shall have power to delegate from time to time to such of
their number the doing of such things and the execution of such instruments either in the name of
the Issuer Trust or the names of the 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




Dissolution, Liquidation and Merger




     Section 9.1 Perpetual Existence.



     The Issuer Trust shall have perpetual existence and shall be dissolved only in accordance with
this Article IX.



     Section 9.2 Early Termination.



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




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




     (b) at any time after the Stock Purchase Date or earlier termination of the Stock
Purchase Contracts, the written direction of the Property Trustee from the Depositor as the
holder of the Common Securities at any time to dissolve the Issuer Trust and distribute
Corresponding Assets as to Securityholders in exchange for the Trust Preferred Securities
(which direction is optional and wholly within the discretion of the Depositor);




     (c) the redemption of all of the Trust Preferred Securities in accordance with the
provisions of this Trust Agreement; and




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



     If an Early Termination Event occurs, Section 9.4 shall apply.



     Section 9.3 Dissolution.



     The respective obligations and responsibilities of the Issuer Trustees and the Issuer Trust
created and continued hereby shall terminate upon the latest to occur of the following: (a) the
distribution by the




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Property Trustee to Holders of all amounts required to be distributed hereunder upon the
liquidation of the Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust
Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the Issuer 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 Issuer Trust or the Holders.



     Section 9.4 Liquidation.



     (a) If an Early Termination Event specified in clause (a) of Section 9.2 occurs, the Issuer
Trust shall be liquidated by the Property Trustee and the Administrative Trustees as expeditiously
as the Property Trustee and the Administrative Trustees determine to be possible by distributing,
after satisfying the requirements of Section 3808(e) of the Delaware Statutory Trust Act, to each
Holder of Trust Preferred Securities of each Series a Like Amount of Corresponding Assets as of the
date of such distribution, subject to Section 9.4(d). If an Early Termination Event specified in
clause (d) of Section 9.2 occurs, because such Early Termination Event is also an Early Settlement
Event, unless otherwise required by applicable law the Issuer Trust will not be liquidated until
after the Stock Purchase Date but, commencing promptly after the Stock Purchase Date, the Issuer
Trust shall be liquidated by the Property Trustee and the Administrative Trustees as expeditiously
as the Property Trustee and the Administrative Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of the Issuer Trust as provided by applicable law,
to each Holder of Trust Preferred Securities of each Series a Like Amount of Corresponding Assets
as of the date of such distribution, subject to Section 9.4(d). Notice of liquidation shall be
given by the Property Trustee or the Administrative Trustees by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Preferred Securities of each Series at such Holder’s address appearing in the Securities Register.
All such notices of liquidation shall:




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




     (ii) state the Liquidation Date;




     (iii) state that from and after the Liquidation Date, the Trust Securities of such
Series 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 Corresponding Assets
as of the date of such distribution, or if Section 9.4(d) applies, a right to receive a
Liquidation Distribution; and




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



     (b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the liquidation of the
Issuer Trust and distribution of the Corresponding Assets to Holders, the Administrative Trustees,
through the appointment of a separate exchange agent, shall establish a record date for such
distribution (which shall be not more than 30 days prior to the Liquidation Date) and, establish
such procedures as they shall deem appropriate to effect the distribution of Corresponding Assets
in exchange for the Outstanding Trust Securities Certificates of the related Series.



     (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) if the Corresponding Assets for a
Series of Trust Preferred Securities are Notes or shares of Preferred Stock, certificates
representing a Like Amount of Notes or Preferred Stock (or fractional interests in or depositary
shares for Preferred Stock) will be




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issued to Holders of Trust Securities Certificates of the relevant Series, upon surrender of
such certificates to the exchange agent for exchange, and where Pledged Treasury Securities are
Corresponding Assets, Pledged Treasury Securities will be delivered by Book-Entry Transfer to
Holders upon surrender of such certificates, (iii) any Trust Securities Certificates not so
surrendered for exchange will be deemed to represent a Like Amount of Corresponding Assets of the
applicable Series until such certificates are so surrendered (and until such certificates are so
surrendered, no payments of interest, principal, dividends, redemption price or otherwise will be
made to Holders of Trust Securities Certificates with respect to such Corresponding Assets) and
(iv) all rights of Holders holding Trust Securities will cease, except the right of such Holders to
receive Corresponding Assets 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 Corresponding Assets in the manner provided herein is determined by the
Property Trustee not to be practical, or if an Early Termination Event specified in clause (c) of
Section 9.2 occurs, the Trust Property shall be liquidated, and the Issuer Trust’s affairs
wound-up, by the Property Trustee in such manner as the Administrative Trustees determine. In such
event, upon the winding-up of the Issuer Trust except with respect to an Early Termination Event
specified in clause (c) of Section 9.2, Holders will be entitled to receive out of the assets of
the Issuer Trust available for distribution to Holders, after satisfaction of liabilities to
creditors of the Issuer Trust as provided by 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, upon any such winding-up, the Liquidation
Distribution can be paid only in part because the Issuer Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then, subject to the next succeeding sentence,
the amounts payable by the Issuer Trust on the Trust Securities shall be paid on a pro rata basis
(based upon Liquidation Amounts). Holders of the Common Securities to receive Liquidation
Distributions will be subordinated to the right of Holders of Trust Preferred Securities to receive
Liquidation Distributions as provided in Section 4.3(c).



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



     The Issuer Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any corporation
or other body, except pursuant to Section 9.4 or this Section 9.5. At the request of the Holders
of the Common Securities, with the consent of the Administrative Trustees, but without the consent
of the Holders of the Trust Preferred Securities of any Series, the Property Trustee or the
Delaware Trustee, the Issuer Trust may merge with or into, consolidate, amalgamate, or be replaced
by or convey, transfer or lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, however, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Issuer Trust with respect to the Trust
Preferred Securities, or (b) substitutes for the Trust Preferred Securities other securities having
substantially the same terms as the Trust Preferred Securities (the “Successor Securities”) so long
as the Successor Securities have the same priority as the Trust Preferred Securities with respect
to distributions and payments upon liquidation, redemption and otherwise, (ii) the Successor
Securities of any Series are listed, or any Successor Securities of any Series will be listed upon
notification of issuance, on any national securities exchange or other organization on which the
Trust Preferred Securities of such Series are listed, (iii) a trustee of such successor entity
possessing the same powers and duties as the Property Trustee is appointed to hold the Trust
Property, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Trust Preferred Securities of any Series (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 Trust Preferred Securities of any
Series (including any Successor Securities) in any




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material respect, (vi) such successor entity has a purpose substantially identical to that of
the Issuer Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, there has been delivered to the Property Trustee 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 Trust
Preferred Securities of any Series (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Issuer Trust nor such successor entity will be required to register as an
“investment company” under the 1940 Act, (viii) there has been delivered to the Issuer Trustees an
Opinion of Counsel experienced in such matters that such merger, consolidation, amalgamation,
conveyance, transfer or lease will not cause the Issuer Trust or the successor entity to be
classified as an association or a publicly traded partnership taxable as a corporation for United
States Federal income tax purposes, (ix) the Depositor or its permitted transferee owns all of the
common securities of such successor entity and the Depositor guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided by the Guarantee
Agreement and (x) all amounts payable to the Issuer Trustees
under Section 8.6 have been paid. The Issuer
Trust may with the consent of Holders of all of the Trust Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it even if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would otherwise not be permitted under (viii) of the
preceding sentence.



ARTICLE X




Qualifying Treasury Securities




     Section 10.1 Qualifying Treasury Securities.



     (a) The Administrative Trustees or any one of them shall, for each [       ], [       ], [       ]and [     ], commencing on [       ] and ending on the Stock Purchase Date or the earlier termination of the
Stock Purchase Contracts, or if any such day is not a Business Day, the next Business Day (each, a
“Reference Date”) identify:




     (i) the 13-week treasury bill that matures at least one and not more than six Business
Days prior to that Reference Date, or




     (ii) if no 13-week treasury bill that matures at least one and not more than six
Business Days prior to that Reference Date is or is scheduled to be outstanding on the
immediately preceding Reference Date, the 26-week treasury bill that matures at least one
and not more than six Business Days prior to that Reference Date, or




     (iii) if neither of such treasury bills is or is scheduled to be outstanding on the
immediately preceding Reference Date, any other treasury security (which may be a zero
coupon treasury security) that is outstanding on the immediately preceding Reference Date,
is highly liquid and matures at least one Business Day prior to such Reference Date;
provided, however, that any treasury security identified pursuant to this clause (iii) shall
be selected in a manner intended to minimize the cash value of the security selected.



     (b) The Administrative Trustees shall use commercially reasonable efforts to identify the
security meeting the foregoing criteria for each Reference Date promptly after the Department of
the Treasury makes the schedule for upcoming auctions of treasury securities publicly available and
shall, to the extent that a security previously identified with respect to any Reference Date is no
longer expected to




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be outstanding on the immediately preceding Reference Date, identify another security meeting
the foregoing criteria for such Reference Date. The security most recently identified by the
Administrative Trustees or any one of them with respect to any Reference Date shall be the
“Qualifying Treasury Security” with respect to the period from and including its date of issuance
(or if later, the date of maturity of the Qualifying Treasury Security with respect to the
immediately preceding Reference Date) to but excluding its date of maturity, and the Administrative
Trustees’ identification of a security as a Qualifying Treasury Security for such period shall be
final and binding for all purposes absent manifest error. The Administrative Trustees or any one
of them shall give (or cause to be given) prompt written notice to the Depositor, the Collateral
Agent, the Custodial Agent and the Property Trustee of each determination made pursuant to this
Section 10.1. The Qualifying Treasury Security for the period from and including the date hereof
to but excluding its date of maturity will be the US Treasury bill issued [       ] and due on [       ],
CUSIP No. [      ].



ARTICLE XI




Other APEX Related Provisions




     Section 11.1 Agreed Tax Treatment.



     Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities,
and each Owner agrees, by acceptance of a beneficial interest in Trust Preferred Securities, to
treat for all United States Federal, state and local income tax purposes (i) the Issuer Trust as
one or more grantor trusts or agency arrangements, (ii) itself as the owner of an undivided
beneficial interest in the Corresponding Assets for the related Series of Trust Preferred
Securities, (iii) in the case of Normal APEX, the fair market value of the $1,000 principal amount
of Notes corresponding to one Normal APEX as $1,000 and the fair market value of 1/100th fractional
interest in a Stock Purchase Contract corresponding to one Normal APEX as $0 at the time of initial
purchase and to allocate the issue price of Normal APEX consistently therewith, (iv) the Notes as
indebtedness of the Depositor, and (v) the stated interest on the Notes as ordinary interest income
that is includible in the Holder’s or Owner’s gross income at the time the interest is paid or
accrued in accordance with the Holder’s or Owner’s regular method of tax accounting and otherwise
to treat the Notes as described in the Prospectus, each except to the
extent a different treatment is specifically required by the IRS
pursuant to a final determination.



ARTICLE XII




Miscellaneous Provisions




     Section 12.1 Limitation of Rights of Holders.



     The death, dissolution, bankruptcy or incapacity 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 Issuer Trust, nor entitle the legal representatives or heirs of such person
or any Holder for such Person, to claim an accounting, take any action or bring any proceeding in
any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of them.



     Section 12.2 Amendment.



     (a) This Trust Agreement may be amended from time to time by the Administrative Trustees and
the Holders of all of the Common Securities, without the consent of any Holder of the Trust
Preferred Securities, the Property Trustee or the Delaware Trustee, (i) to cure any ambiguity,
correct or supplement any provision herein that may be inconsistent with any other provision
herein, or to make any other




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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 modify,
eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or classified as a partnership
for United States Federal income tax purposes at all times that any Trust Securities are
outstanding, to ensure that the Issuer Trust will not be required to register as an “investment
company” under the 1940 Act or to ensure the treatment of the Trust Preferred Securities as Tier 1
regulatory capital under the prevailing Federal Reserve Board rules and regulations, (iii) to
provide that Trust Preferred Securities Certificates may be executed by an Administrative Trustee
by facsimile signature instead of manual signature, in which case such amendment(s) shall also
provide for the appointment by the Depositor of an authentication agent, the fees and expenses of
which will be paid by the Depositor, a form of authentication certificate, and provisions to the
effect that Trust Preferred Securities Certificates that have been executed by an Administrative
Trustee by facsimile signature shall not be entitled to any benefit under the Trust Agreement or be
valid or obligatory for any purpose unless the certificate of authentication thereon has been
executed by the authentication agent by manual signature, (iv) require that holders that are not
United States Persons for U.S. federal income tax purposes irrevocably appoint a United States
Person to exercise any voting rights to ensure that the Trust will not be treated as a foreign
trust for U.S. federal income tax purposes or (v) to conform the terms of this Trust Agreement to
the description of this Trust Agreement and the Trust Securities in the Prospectus; provided,
however, that in the case of either clause (i) or (ii), such action shall not adversely affect in
any material respect the interests of any Holder, the Property Trustee or the Delaware Trustee;
provided, further, that in the case of clause (iv), the Depositor shall deliver to the Property
Trustee an Officers’ Certificate and an Opinion of Counsel (who may be counsel to the Depositor or
the Issuer Trust), in each case confirming that such amendment has the effect of conforming the
terms of this Trust Agreement to the descriptions of this Trust Agreement and the Trust Securities
in the Prospectus. Any such amendment shall become effective when notice is given to the Property
Trustee and the Holders of the Trust Preferred Securities.



     (b) Prior to the issuance of Definitive Trust Preferred Securities Certificates, the Depositor
and the Issuer Trustees shall enter into such amendments or supplements to this Agreement as are
necessary to give effect to Section 5.13 and 5.14.



     (c) Except as provided in Section 12.2(d), any provision of this Trust Agreement may be
amended by the Administrative Trustees and the Holders of all of the Common Securities and with
(i) the consent of Holders of at least a Majority in Liquidation Amount of the Outstanding Trust
Preferred Securities of each Affected Series, and (ii) receipt by the Administrative Trustees of an
Opinion of Counsel to the effect that such amendment or the exercise of any power granted to the
Issuer Trustees or the Administrative Trustees in accordance with such amendment will not affect
the Issuer Trust’s status as one or more grantor trusts or agency arrangements or cause the Issuer
Trust to be classified as an association or publicly traded partnership taxable as a corporation
for United States Federal income tax purposes or affect the Issuer Trust’s exemption from status as
an “investment company” under the 1940 Act.



     (d) In addition to and notwithstanding any other provision in this Trust Agreement, without
the consent of each affected Holder, this Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the
amount of any Distribution required to be made in respect of the Trust Securities as of a specified
date, or (ii) restrict the right of a Holder to institute suit for the enforcement of any such
payment on or after such date; and notwithstanding any other provision herein, without the
unanimous consent of the Holders, this Section 12.3(d) may not be amended.




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     (e) Notwithstanding any other provisions of this Trust Agreement, no Issuer Trustee shall
enter into or consent to any amendment to this Trust Agreement that would cause the Issuer Trust to
fail or cease to qualify for the exemption from status as an “investment company” under the 1940
Act or to be taxable as a corporation or to be classified as other than as one or more grantor
trusts or agency arrangements for United States Federal income tax purposes. In particular, no
Issuer Trustee shall enter into or consent to any amendment to this Trust Agreement that would
cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable
as a corporation for United States Federal income tax purposes.



     (f) Notwithstanding anything in this Trust Agreement to the contrary, without the prior
written consent of the Property Trustee, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Property Trustee or that adversely affects the Property
Trustee.



     (g) Notwithstanding anything in this Trust Agreement to the contrary, without the prior
written consent of the Delaware Trustee, this Trust Agreement may not be amended in a manner that
imposes any additional obligation on the Delaware Trustee or that adversely affects the Delaware
Trustee.



     (h) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of
the Securities Registrar and the Paying Agent, this Trust Agreement may not be amended in a manner
that imposes any additional obligation on the Securities Registrar or the Paying Agent or that
adversely affects the Securities Registrar or the Paying Agent.



     (i) In the event that any amendment to this Trust Agreement is made, the Administrative
Trustees shall promptly provide to the Depositor, the Property Trustee, the Delaware Trustee, the
Securities Registrar and the Paying Agent a copy of such amendment.



     (j) 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 that imposes any additional
obligation on the Depositor.



     (k) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any
amendment to this Trust Agreement that affects its own rights, duties or immunities under this
Trust Agreement. The Property Trustee and the Delaware 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 12.3 Separability Clause.



     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.



     Section 12.4 Governing Law.



     THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE ISSUER
TRUST AND THE ISSUER 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. THE PROVISIONS OF SECTIONS 3540 AND 3561 OF TITLE 12 THE DELAWARE CODE
SHALL NOT APPLY TO THE ISSUER TRUST.




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     Section 12.5 Payments Due on Non-Business Day.



     If the date fixed for any payment on any Trust Security shall be a day that is not a Business
Day, then such payment need not be made on such date but may be made on the next succeeding day
that is a Business Day, with the same force and effect as though made on the date fixed for such
payment, and no Distributions shall accumulate on such unpaid amount for the period after such
date.



     Section 12.6 Successors and Assigns.



     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 any consolidation, merger or sale involving the Depositor that is
permitted under Article VIII of the Base 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 12.7 Effect of Headings and Table of Contents.



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



     Section 12.8 Reports, Notices and Demands.



     Any report, notice, demand or other communication that by any provision of this Trust
Agreement is required or permitted to be given or served to or upon any Holder, the Depositor or
the Administrative Trustees may be given or served in writing by deposit thereof, first-class,
postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case,
addressed, (a) in the case of a Holder of Trust Preferred Securities, to such Holder as such
Holder’s name and address may appear on the Securities Register; and (b) in the case of the Holder
of the Common Securities or the Depositor, to National City Corporation, 1900 East Ninth Street,
Cleveland, Ohio 44114, Attention: Corporate Secretary, facsimile no.: [       ]. Such notice, demand
or other communication to or upon a Holder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.



     Any notice, demand or other communication that by any provision of this Trust Agreement is
required or permitted to be given or served to or upon the Issuer Trust, the Property Trustee, the
Delaware Trustee or the Administrative Trustees shall be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, or hand delivery or facsimile
transmission, in each case, addressed to such Person as follows: (a) with respect to the Property
Trustee, to The Bank of New York Trust Company, N.A.; [       ], facsimile no. [       ]; (b) with respect
to the Delaware Trustee, to BNYM (Delaware); White Clay Center, Route 273, New Castle County,
Newark, Delaware 19711, facsimile (312) 827-8542; and (c) with respect to the Administrative
Trustees, to them at the address above for notices to the Depositor, marked “Attention:
Administrative Trustees of National City Preferred Capital
Trust III”. Such notice, demand or
other communication to or upon the Issuer Trust, the Delaware Trustee or the Property Trustee shall
be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.



     Section 12.9 Agreement Not to Petition.



     Each of the Issuer Trustees and the Depositor agree for the benefit of the Holders that, until
at least one year and one day after the Issuer Trust has been dissolved in accordance with
Article IX, they shall not file, or join in the filing of, a petition against the Issuer Trust
under any bankruptcy, insolvency,



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reorganization or other similar law (including the United States Bankruptcy Code)
(collectively, “Bankruptcy Laws”) or otherwise join in the commencement of any proceeding against
the Issuer Trust under any Bankruptcy Law. In the event that the Depositor takes action in
violation of this Section 12.10, the Property Trustee agrees, for the benefit of Holders, that at
the expense of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Issuer Trust or the
commencement of such action and raise the defense that the Depositor has agreed in writing not to
take such action and should be stopped and precluded therefrom and such other defenses, if any, as
counsel for the Issuer Trustee or the Issuer Trust may assert. The
provisions of this Section 12.9 shall
survive the termination of this Trust Agreement.



     Section 12.10 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 Issuer Trustee that is a trustee for the purposes
of the Trust Indenture Act.



     (c) If any provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this Trust Agreement, the
latter provision shall control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the latter provision
shall be deemed to apply to this Trust Agreement as so modified or to be 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 Issuer Trust.



     Section 12.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture.



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




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     In Witness Whereof, the parties hereto have executed this Trust Agreement as of the
date first above written.



	 	 	 	 	 	 	 
	 	 	National City Corporation,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of New York Trust Company,	 	 
	 	 	N.A., as Property Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BNYM (Delaware), as Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[       ]	 	 
	 

	 	 	 	as Administrative Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[       ]	 	 
	 

	 	 	 	as Administrative Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	[       ]	 	 
	 

	 	 	 	as Administrative Trustee	 	 






Trust Agreement
















 





EXHIBIT A




(FORM OF FACE OF CAPITAL APEX CERTIFICATE)




     {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.}



      



			
	No.                     
	 	Number of Capital APEX:                     
	 
	 	CUSIP No. [ ]





National City Preferred Capital Trust [ ]




Capital APEX




     This Capital APEX Certificate certifies that {             } is the registered
Holder of the number of Capital APEX set forth above {for inclusion in Global Certificates only -
or such other number of Capital APEX reflected in the Schedule of Increases and Decreases in the
Global Certificate attached hereto}. Each Capital APEX represents a beneficial interest in
National City Preferred Capital Trust [ ] (the “Issuer Trust”), having a Liquidation Amount of
$1,000. The Capital APEX are transferable on the books and records of the Issuer Trust, in person
or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper
form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and provisions of the
Capital APEX are set forth in, and this certificate and the Capital APEX represented hereby are
issued and shall in all respects be subject to the terms and provisions of the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of [ ], as the same may be amended and restated
from time to time (the “Trust Agreement”), including the designation of the terms of the Capital
APEX as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by the Depositor and The Bank of New York Trust Company, N.A., as Guarantee Trustee,
dated as of [ ], as the same may be amended and restated from time to time (the “Guarantee
Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the
meaning set forth therein.



Trust Agreement




A-1 









 





     Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders
of Capital APEX and Stripped APEX may exchange them for Normal APEX and Qualifying Treasury
Securities and Section 5.14(f) of the Trust Agreement provides for the procedures pursuant to which
Holders of Capital APEX may elect to dispose of Capital APEX in the event a Remarketing is
Successful. The forms of Recombination Notice and Request and Notice of Contingent Disposition
Election required to be delivered in connection therewith are printed on the reverse hereof.



     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection
at the offices of the Property Trustee.



     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereof.



     IN WITNESS WHEREOF, the Issuer Trust acting through one of its Administrative Trustees has
executed this Capital APEX Certificate.



	 	 	 	 	 
	 	National City Preferred Capital Trust [ ], 

acting through one of its Administrative 

Trustees

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	 	 
	 



Date:




Trust Agreement





A-2 









 





ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:



	 	 	 
	TEN COM:

	 	as tenants in common
	 
	 	 
	UNIF GIFT MIN ACT:

	 	                     Custodian                      (cust)(minor)
Under Uniform Gifts to Minors Act of          
	 
	 	 
	TENANT:

	 	as tenants by the entireties
	 
	 	 
	JT TEN:

	 	as joint tenants with right of survivorship and not as
tenants in common






     Additional abbreviations may also be used though not in the above list.



     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)




(Please print or type name and address including Postal Zip Code of Assignee)



the within Capital APEX Certificates and all rights thereunder, hereby irrevocably constituting and
appointing attorney                                         , to transfer said Capital APEX Certificates on the books of
National City Preferred Capital Trust [ ], with full power of substitution in the premises.




	 	 	 
	Dated:

	 	Signature
	 

	 	NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Capital APEX
Certificates in every particular, without alteration or enlargement
or any change whatsoever.






Trust Agreement




A-3 









 








FORM OF RECOMBINATION NOTICE AND REQUEST




Wilmington Trust Company,

   as Collateral Agent and Securities Registrar

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration





			
	Re:	 	Stripped APEX and Capital APEX of National City Preferred Capital Trust [ ]





     The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and
Restated Trust Agreement, dated as of [ ], of National City Preferred Capital Trust [ ] (the
“Trust Agreement”), among National City Corporation, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, BNYM (Delaware), as Delaware Trustee, and the Administrative
Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03(a) of
the Collateral Agreement that the Holder:




     (i) is transferring $                     Liquidation Amount of Stripped APEX and Capital APEX
in connection with an Exchange of such Stripped APEX and Capital APEX for a Like Amount of
Normal APEX and Qualifying Treasury Securities,




     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the
Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount,
and




     (iii) hereby requests the delivery to the Holder of such Normal APEX of a Like Amount.



     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set
forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such
Exchange.



	 	 	 
	Date:
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	Please print name and address of
Registered Holder:
	 	 
	 
	 	 
	Name

	 	Social Security or other Taxpayer
Identification Number, if any
	 
	 	 
	Address
	 	 






Trust Agreement




A-4 









 








FORM OF NOTICE OF CONTINGENT DISPOSITION ELECTION




Wilmington Trust Company,

   as Collateral Agent and Securities Registrar

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration





			
	Re:	 	Normal APEX of National City Preferred Capital Trust [ ]





     The undersigned Holder hereby notifies you pursuant to Section 5.14(f) of the Amended and
Restated Trust Agreement, dated as of [ ], of National City Preferred Capital Trust [ ] (the
“Trust Agreement”), among National City Corporation, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, BNYM (Delaware), as Delaware Trustee, and the Administrative
Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.03 of
the Collateral Agreement, that the Holder:




     (i) is transferring                      Capital APEX to the Securities Registrar, and




     (ii) hereby requests the payment to the Holder, if the upcoming Remarketing is
Successful, of an amount in cash for each such Capital APEX equal to the proceeds of the
sale of $1,000 principal amount of Notes, it being understood that if such Remarketing is
not Successful, this Notice shall be disregarded.



     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set
forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such
Contingent Exchange Election.



	 	 	 
	Date:
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	Please print name and address of
Registered Holder:
	 	 
	 
	 	 
	Name

	 	Social Security or other Taxpayer
Identification Number, if any
	 
	 	 
	Address
	 	 






Trust Agreement




A-5 









 





{TO BE ATTACHED TO GLOBAL CERTIFICATES}




SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE




The following increases or decreases in this Global Certificate have been made:




	 	 	 	 	 	 	 
	Amount of increase in	 	Amount of decrease in	 	Number of Capital APEX	 	 
	Number of Capital	 	Number of Capital APEX	 	evidenced by this Global	 	Signature of authorized
	APEX evidenced by	 	evidenced by this Global	 	Certificate following such	 	signatory of Securities
	this Global Certificate	 	Certificate	 	decrease or increase	 	Registrar
	 

	 	 
	 	 
	 	 





Trust Agreement




A-6 









 





EXHIBIT B




(FORM OF TRUST COMMON SECURITIES CERTIFICATE)




     [If issued to the Depositor - ] EXCEPT AS PROVIDED IN THE TRUST AGREEMENT (AS DEFINED BELOW),
THIS CERTIFICATE IS NOT TRANSFERABLE.



     [Otherwise - ] TO THE FULLEST EXTENT PERMITTED BY LAW, OTHER THAN A TRANSFER IN CONNECTION
WITH A CONSOLIDATION OR MERGER OF NATIONAL CITY CORPORATION INTO ANOTHER PERSON, OR ANY CONVEYANCE,
TRANSFER OR LEASE BY NATIONAL CITY CORPORATION OF ITS PROPERTIES AND ASSETS SUBSTANTIALLY AS AN
ENTIRETY TO ANY PERSON PURSUANT TO SECTION 8.1 OF THE JUNIOR SUBORDINATED INDENTURE, DATED AS OF
NOVEMBER 3, 2006, BETWEEN NATIONAL CITY CORPORATION AND THE BANK OF NEW YORK TRUST COMPANY, N.A.,
AS AMENDED AND SUPPLEMENTED BY THE SUPPLEMENTAL INDENTURE, DATED AS OF [ ], BETWEEN NATIONAL CITY
CORPORATION AND THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE, AS AMENDED OR SUPPLEMENTED
FROM TIME TO TIME, ANY ATTEMPTED TRANSFER OF THE COMMON TRUST SECURITIES EVIDENCED HEREBY OTHER
THAN TO A DIRECT OR INDIRECT SUBSIDIARY OF NATIONAL CITY CORPORATION SHALL BE VOID.



100 Trust Common Securities




     This Trust Common Securities Certificate certifies that {           } is the
registered Holder of 100 Common Trust Securities. Each Common Trust Security represents a
beneficial interest in National City Preferred Capital Trust [ ] (the “Issuer Trust”), having a
Liquidation Amount of $1,000. The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Trust Securities are set forth in, and this certificate
and the Common Trust Securities represented hereby are issued and shall in all respects be subject
to the terms and provisions of the Amended and Restated Trust Agreement of the Issuer Trust, dated
as of [ ], as the same may be amended and restated from time to time (the “Trust Agreement”),
including the designation of the terms of the Common Trust Securities as set forth therein. All
capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth
therein.



     IN WITNESS WHEREOF, the Issuer Trust acting through one of its Administrative Trustees has
executed this Common Trust Securities Certificate.



	 	 	 	 	 
	 	National City Preferred Capital Trust [ ], acting 

through one of its Administrative Trustees

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	 	 
	 



Date:




Trust Agreement





B-1 









 








EXHIBIT C




(FORM OF FACE OF NORMAL APEX CERTIFICATE)





     {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE ”DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.}



      



			
	No.                     
	 	Number of Normal APEX:                     
	 
	 	CUSIP No. [ ]






National City Preferred Capital Trust [ ]




Normal APEX




     This Normal APEX Certificate certifies that {             } is the
registered Holder of the number of Normal APEX set forth above {for inclusion in Global
Certificates only - or such other number of Normal APEX reflected in the Schedule of Increases and
Decreases in the Global Certificate attached hereto}. Each Normal APEX represents a beneficial
interest in National City Preferred Capital Trust [ ] (the “Issuer Trust”), having a Liquidation
Amount of $1,000. The Normal APEX are transferable on the books and records of the Issuer Trust,
in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in
proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and provisions of the
Normal APEX are set forth in, and this certificate and the Normal APEX represented hereby are
issued and shall in all respects be subject to the terms and provisions of the Amended and Restated
Trust Agreement of the Issuer Trust, dated as of [ ], as the same may be amended and restated
from time to time (the “Trust Agreement”), including the designation of the terms of the Normal
APEX as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement
entered into by the Depositor and The Bank of New York Trust Company, N.A., as Guarantee Trustee,
dated as of [ ], as the same may be amended and restated from time to time (the “Guarantee
Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the
meaning set forth therein.



     Section 5.13(b) of the Trust Agreement provides for the procedures pursuant to which Holders
of Normal APEX may exchange Normal APEX and Qualifying Treasury Securities for Stripped APEX and



Trust Agreement





C-1 









 







Capital APEX and Section 5.14(d) of the Trust Agreement provides for the procedures pursuant
to which Holders of Normal APEX may elect to exchange Normal APEX and Qualifying Treasury
Securities for Stripped APEX and Capital APEX in the event a Remarketing is Successful. The forms
of Stripping Notice and Request and Notice of Contingent Exchange Election required to be delivered
in connection therewith are printed on the reverse hereof.




     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection
at the offices of the Property Trustee.



     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereof.



     IN WITNESS WHEREOF, the Issuer Trust acting through one of its Administrative Trustees has
executed this Normal APEX Certificate.



	 	 	 	 	 
	 	National City Preferred Capital Trust [ ], acting 

through one of its Administrative Trustees

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	 	 
	 



Date:




Trust Agreement





C-2 









 





ABBREVIATIONS




     The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:



	 	 	 
	TEN COM:

	 	as tenants in common
	 
	 	 
	UNIF GIFT MIN ACT:

	 	                     Custodian                      (cust)(minor)
Under Uniform Gifts to Minors Act of                       
	 
	 	 
	TENANT:

	 	as tenants by the entireties
	 
	 	 
	JT TEN:

	 	as joint tenants with right of survivorship and not as
tenants in common






     Additional abbreviations may also be used though not in the above list.



     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)




(Please print or type name and address including Postal Zip Code of Assignee)



the within Normal APEX Certificates and all rights thereunder, hereby irrevocably constituting and
appointing attorney                     , to transfer said Normal APEX Certificates on the books of
National City Preferred Capital Trust [ ], with full power of substitution in the premises.




	 	 	 
	Dated:

	 	Signature
	 

	 	NOTICE: The signature to this assignment must
correspond with the name as it appears upon the
face of the within Normal APEX Certificates in every
particular, without alteration or enlargement or any
change whatsoever.
	 
	 	 
	Signature Guarantee:
	 	 






Trust Agreement




C-3 









 





FORM OF STRIPPING NOTICE AND REQUEST




Wilmington Trust Company,

   as Collateral Agent and Securities Registrar

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration





			
	Re:	 	Normal APEX of National City Preferred Capital Trust [ ]





     The undersigned Holder hereby notifies you pursuant to Section 5.13(b) of the Amended and
Restated Trust Agreement, dated as of [ ], of National City Preferred Capital Trust [ ] (the
“Trust Agreement”), among National City Corporation, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, BNYM (Delaware), as Delaware Trustee, and the Administrative
Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.02 of
the Collateral Agreement, that the Holder:




     (i) is depositing the appropriate Qualifying Treasury Securities with Wilmington Trust
Company, as Collateral Agent, for deposit in the Collateral Account,




     (ii) is transferring the related Normal APEX to the Securities Registrar in connection
with an Exchange of such Normal APEX and Qualifying Treasury Securities for a Like Amount of
Stripped APEX and Capital APEX, and




     (iii) hereby requests the delivery to the Holder of such Stripped APEX and Capital
APEX.



     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set
forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such
Exchange.



	 	 	 
	Date:
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	Please print name and address of
Registered Holder:
	 	 
	 
	 	 
	Name

	 	Social Security or other Taxpayer
Identification Number, if any
	 
	 	 
	Address
	 	 






Trust Agreement




C-4 









 





FORM OF NOTICE OF CONTINGENT EXCHANGE ELECTION




Wilmington Trust Company,

    as Collateral Agent and Securities Registrar

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration





			
	Re:	 	Normal APEX of National City Preferred Capital Trust [ ]





     The undersigned Holder hereby notifies you pursuant to Section 5.14(d) of the Amended and
Restated Trust Agreement, dated as of [ ], of National City Preferred Capital Trust [ ] (the
“Trust Agreement”), among National City Corporation, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, BNYM (Delaware), as Delaware Trustee, and the Administrative
Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.02 of
the Collateral Agreement, that the Holder:




     (i) is depositing the appropriate Qualifying Treasury Securities with Wilmington Trust
Company, as Collateral Agent, for deposit in the Collateral Account,




     (ii) is transferring the related Normal APEX to the Securities Registrar in connection
with a Contingent Exchange Election of such Normal APEX and Qualifying Treasury Securities
for a Like Amount of Stripped APEX and Capital APEX, and




     (iii) hereby requests the delivery to the Holder of such Stripped APEX and Capital APEX
if the upcoming Remarketing is Successful, it being understood that if such Remarketing is
not Successful, this Notice shall be disregarded and the Collateral Agent shall return such
Qualifying Treasury Securities to the Holder promptly after the Remarketing.



     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set
forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such
Contingent Exchange Election.



	 	 	 
	Date:
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	Please print name and address of
Registered Holder:
	 	 
	 
	 	 
	Name

	 	Social Security or other Taxpayer
Identification Number, if any
	 
	 	 
	Address
	 	 






Trust Agreement




C-5 









 





{TO BE ATTACHED TO GLOBAL CERTIFICATES}




SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE




The following increases or decreases in this Global Certificate have been made:




	 	 	 	 	 	 	 
	Amount of increase in	 	Amount of decrease in	 	Number of Normal APEX	 	 
	Number of Normal	 	Number of Normal APEX	 	evidenced by this Global	 	Signature of authorized
	APEX evidenced by	 	evidenced by this Global	 	Certificate following such	 	signatory of Securities
	this Global Certificate	 	Certificate	 	decrease or increase	 	Registrar
	 

	 	 
	 	 
	 	 





Trust Agreement




C-6 









 








EXHIBIT D




(FORM OF FACE OF STRIPPED APEX CERTIFICATE)




     {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN
THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE
(OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.



     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.}



      



			
	No.                     
	 	Number of Stripped APEX:                     
	 
	 	CUSIP No. [ ]






National City Preferred Capital Trust [ ]




Stripped APEX




     This Stripped APEX Certificate certifies that {             } is the
registered Holder of the number of Stripped APEX set forth above {for inclusion in Global
Certificates only - or such other number of Stripped APEX reflected in the Schedule of Increases
and Decreases in the Global Certificate attached hereto}. Each Stripped APEX represents a
beneficial interest in National City Preferred Capital Trust [ ] (the “Issuer Trust”), having a
Liquidation Amount of $1,000. The Stripped APEX are transferable on the books and records of the
Issuer Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as
defined below). The designations, rights, privileges, restrictions, preferences and other terms
and provisions of the Stripped APEX are set forth in, and this certificate and the Stripped APEX
represented hereby are issued and shall in all respects be subject to the terms and provisions of
the Amended and Restated Trust Agreement of the Issuer Trust, dated as of [ ], as the same may be
amended and restated from time to time (the “Trust Agreement”), including the designation of the
terms of the Stripped APEX as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by the Depositor and The Bank of New York Trust Company, N.A., as
Guarantee Trustee, dated as of [ ], as the same may be amended and restated from time to time
(the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust
Agreement have the meaning set forth therein.



Trust Agreement




D-1 









 





     Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders
of Capital APEX and Stripped APEX may exchange them for Normal APEX and Qualifying Treasury
Securities. The form of Recombination Notice required to be delivered in connection therewith is
printed on the reverse hereof.



     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection
at the offices of the Property Trustee.



     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereof.



     IN WITNESS WHEREOF, the Issuer Trust acting through one of its Administrative Trustees has
executed this Stripped APEX Certificate.



	 	 	 	 	 
	 	National City Preferred Capital Trust [ ], acting 

through one of its Administrative Trustees

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	 	 
	 



Date:




Trust Agreement





D-2 









 





ABBREVIATIONS




The following abbreviations, when used in the inscription on the face of this instrument, shall be
construed as though they were written out in full according to applicable laws or regulations:



	 	 	 
	TEN COM:

	 	as tenants in common
	 
	 	 
	UNIF GIFT MIN ACT:

	 	                     Custodian                      (cust)(minor)
Under Uniform Gifts to Minors Act of                    
	 
	 	 
	TENANT:

	 	as tenants by the entireties
	 
	 	 
	JT TEN:

	 	as joint tenants with right of survivorship and not as
tenants in common






     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto



(Please insert Social Security or Taxpayer I.D.

or other Identifying Number of Assignee)




(Please print or type name and address including Postal Zip Code of Assignee)



the within Stripped APEX Certificates and all rights thereunder, hereby irrevocably constituting
and appointing attorney                     , to transfer said Stripped APEX Certificates on the
books of National City Preferred Capital Trust [ ], with full power of substitution in the
premises.




	 	 	 
	Dated:

	 	Signature
	 

	 	NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face
of the within Stripped APEX Certificates in every
particular, without alteration or enlargement or any
change whatsoever.






Signature Guarantee:




Trust Agreement




D-3 









 





FORM OF RECOMBINATION NOTICE AND REQUEST




Wilmington Trust Company,

    as Collateral Agent and Securities Registrar

Rodney Square North

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration





			
	Re:	 	Stripped APEX and Capital APEX of National City Preferred Capital Trust [ ]





     The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and
Restated Trust Agreement, dated as of [ ], of National City Preferred Capital Trust [ ] (the
“Trust Agreement”), among National City Corporation, as Depositor, The Bank of New York Trust
Company, N.A., as Property Trustee, BNYM (Delaware), as Delaware Trustee, the Administrative
Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03 of
the Collateral Agreement, that the Holder:




     (i) is transferring $                     Liquidation Amount of Stripped APEX and Capital APEX
in connection with an Exchange of such Stripped APEX and Capital APEX for a Like Amount of
Normal APEX and Qualifying Treasury Securities,




     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the
Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount,
and




     (iii) hereby requests the delivery to the Holder of such Normal APEX of a Like Amount.



     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set
forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such
Exchange.



	 	 	 
	Date:
	 	 
	 

	 	Signature Guarantee:
	 
	 	 
	Please print name and address of
Registered Holder:
	 	 
	 
	 	 
	Name

	 	Social Security or other Taxpayer
Identification Number, if any
	 
	 	 
	Address
	 	 






Trust Agreement




D-4 









 





{TO BE ATTACHED TO GLOBAL CERTIFICATES}




SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE







The following increases or decreases in this Global Certificate have been made:




	 	 	 	 	 	 	 
	Amount of increase in	 	Amount of decrease in	 	Number of Stripped APEX	 	 
	Number of Stripped	 	Number of Stripped APEX	 	evidenced by this Global	 	Signature of authorized
	APEX evidenced by	 	evidenced by this Global	 	Certificate following such	 	signatory of Securities
	this Global Certificate	 	Certificate	 	decrease or increase	 	Registrar
	 

	 	 
	 	 
	 	 





Trust Agreement





D-5