EX-4.7



 






Exhibit 4.7




 






FORM OF




[SECOND] AMENDED AND RESTATED DECLARATION




OF TRUST




PNC CAPITAL TRUST ___




Dated as of ______, 20___




 







 









 








TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I INTERPRETATION AND DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II TRUST INDENTURE ACT
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.1 Trust Indenture Act; Application
	 	 	6	 
	SECTION 2.2 Lists of Holders of Securities
	 	 	7	 
	SECTION 2.3 Reports by the Institutional Trustee
	 	 	7	 
	SECTION 2.4 Periodic Reports to Institutional Trustee
	 	 	7	 
	SECTION 2.5 Evidence of Compliance with Conditions Precedent
	 	 	7	 
	SECTION 2.6 Defaults; Waiver
	 	 	7	 
	SECTION 2.7 Default; Notice
	 	 	9	 
	 
	 	 	 	 
	ARTICLE III ORGANIZATION
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.1 Name
	 	 	10	 
	SECTION 3.2 Office
	 	 	10	 
	SECTION 3.3 Purpose
	 	 	10	 
	SECTION 3.4 Authority
	 	 	10	 
	SECTION 3.5 Title to Property of the Trust
	 	 	10	 
	SECTION 3.6 Powers and Duties of the Regular Trustees
	 	 	10	 
	SECTION 3.7 Prohibition of Actions by the Trust and the Trustees
	 	 	13	 
	SECTION 3.8 Powers and Duties of the Institutional Trustee
	 	 	14	 
	SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee
	 	 	15	 
	SECTION 3.10 Certain Rights of Institutional Trustee
	 	 	17	 
	SECTION 3.11 Delaware Trustee
	 	 	19	 
	SECTION 3.12 Execution of Documents
	 	 	19	 
	SECTION 3.13 Not Responsible for Recitals or Issuance of Securities
	 	 	19	 
	SECTION 3.14 Duration of Trust
	 	 	19	 
	SECTION 3.15 Mergers
	 	 	20	 
	 
	 	 	 	 
	ARTICLE IV SPONSOR
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.1 Sponsor’s Purchase of Common Securities
	 	 	21	 
	SECTION 4.2 Responsibilities of the Sponsor
	 	 	21	 






i









 








	 	 	 	 	 
	 
	 	 	 	 
	ARTICLE V TRUSTEES
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.1 Number of Trustees
	 	 	22	 
	SECTION 5.2 Delaware Trustee
	 	 	22	 
	SECTION 5.3 Institutional Trustee; Eligibility
	 	 	22	 
	SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally
	 	 	23	 
	SECTION 5.5 Initial Trustees; Additional Powers of Regular Trustees
	 	 	23	 
	SECTION 5.6 Appointment, Removal and Resignation of Trustees
	 	 	24	 
	SECTION 5.7 Vacancies among Trustees
	 	 	26	 
	SECTION 5.8 Effect of Vacancies
	 	 	26	 
	SECTION 5.9 Meetings
	 	 	26	 
	SECTION 5.10 Delegation of Power
	 	 	27	 
	SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI DISTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.1 Distributions
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VII ISSUANCE OF SECURITIES
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.1 General Provisions Regarding Securities
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VIII TERMINATION OF TRUST
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.1 Termination of Trust
	 	 	28	 
	 
	 	 	 	 
	ARTICLE IX TRANSFER OF INTERESTS
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.1 Transfer of Securities
	 	 	29	 
	SECTION 9.2 Transfer of Certificates
	 	 	30	 
	SECTION 9.3 Deemed Security Holders
	 	 	30	 
	SECTION 9.4 Book Entry Interests
	 	 	30	 
	SECTION 9.5 Notices to Clearing Agency
	 	 	31	 
	SECTION 9.6 Appointment of Successor Clearing Agency
	 	 	31	 
	SECTION 9.7 Definitive Capital Security Certificates
	 	 	31	 
	SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	32	 
	 
	 	 	 	 
	ARTICLE X LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
	 	 	 	 
	 
	 	 	 	 
	SECTION 10.1 Liability
	 	 	32	 
	SECTION 10.2 Exculpation
	 	 	33	 
	SECTION 10.3 Fiduciary Duty
	 	 	33	 
	SECTION 10.4 Indemnification
	 	 	34	 






ii









 










	 	 	 	 	 
	SECTION 10.5 Outside Businesses
	 	 	37	 
	 
	 	 	 	 
	ARTICLE XI ACCOUNTING
	 	 	 	 
	 
	 	 	 	 
	SECTION 11.1 Fiscal Year
	 	 	37	 
	SECTION 11.2 Certain Accounting Matters
	 	 	37	 
	SECTION 11.3 Banking
	 	 	38	 
	SECTION 11.4 Withholding
	 	 	38	 
	 
	 	 	 	 
	ARTICLE XII AMENDMENTS AND MEETINGS
	 	 	 	 
	 
	 	 	 	 
	SECTION 12.1 Amendments
	 	 	38	 
	SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent
	 	 	40	 
	 
	 	 	 	 
	ARTICLE XIII REPRESENTATIONS OF INSTITUTIONAL TRUSTEE AND 
DELAWARE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	SECTION 13.1 Representations and Warranties of Institutional Trustee
	 	 	41	 
	SECTION 13.2 Representations and Warranties of Delaware Trustee
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XIV MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	SECTION 14.1 Notices
	 	 	43	 
	SECTION 14.2 Governing Law
	 	 	44	 
	SECTION 14.3 Intention of the Parties
	 	 	44	 
	SECTION 14.4 Headings
	 	 	44	 
	SECTION 14.5 Successors and Assigns
	 	 	44	 
	SECTION 14.6 Partial Enforceability
	 	 	44	 
	SECTION 14.7 Counterparts 
	 	 	44	 






	 	 	 	 	 
	ANNEX I
	TERMS OF SECURITIES	 	I-1	 
	EXHIBIT A-1     
	FORM OF CAPITAL SECURITY CERTIFICATE	 	A1-1	 
	EXHIBIT A-2
	FORM OF COMMON SECURITY CERTIFICATE	 	A2-1	 
	EXHIBIT B
	SPECIMEN OF DEBENTURE	 	B-1	 
	EXHIBIT C
	UNDERWRITING AGREEMENT	 	C-1	 






iii









 






CROSS-REFERENCE TABLE*




	 	 	 
	Section of	 	 
	Trust Indenture Act	 	 
	of 1939, as amended	 	Section of Declaration
	310(a)

	 	 5.3(a)
	310(c)

	 	Inapplicable
	311(c)

	 	Inapplicable
	312(a)

	 	 2.2(a)
	312(b)

	 	 2.2(b)
	313

	 	 2.3
	314(a)

	 	 2.4
	314(b)

	 	Inapplicable
	314(c)

	 	 2.5
	314(d)

	 	Inapplicable
	314(f)

	 	Inapplicable
	315(a)

	 	 3.9(b)
	315(c)

	 	 3.9(a)
	315(d)

	 	 3.9(a)
	316(a)

	 	Annex I
	316(c)

	 	 3.6(e)








 




			
	*	 	This Cross-Reference Table does not constitute part of the Declaration and shall not affect
the interpretation of any of its terms or provisions.






iv









 








[SECOND] AMENDED AND RESTATED




DECLARATION OF TRUST




OF




PNC CAPITAL TRUST ___




______, 20___




[SECOND] AMENDED AND RESTATED DECLARATION OF TRUST (“Declaration”) dated and effective as of
______, 20___, by the Trustees (as defined herein), the Sponsor (as defined herein) and by the
holders, from time to time, of undivided beneficial interests in the assets of the Trust to be
issued pursuant to this Declaration;



WHEREAS, The Bank of New York (Delaware) is the Delaware Trustee (as defined herein), and The Bank
of New York is the Institutional Trustee (as defined herein);



WHEREAS, the Sponsor and ______, as the Initial Trustee (the “Initial Trustee”)
established PNC CAPITAL TRUST ___(the “Trust”), a trust under the Statutory Trust Act (as defined
herein) pursuant to a Declaration of Trust dated as of ___([as amended by the First Amended
and Restated Declaration of Trust,] the “Original Declaration”) and a Certificate of Trust filed
with the Secretary of State of the State of Delaware on ______, for the sole purpose of
issuing and selling certain securities representing undivided beneficial interests in the assets of
the Trust and investing the proceeds thereof in certain Debentures of the Debenture Issuer;



[WHEREAS, the Trustees and the Sponsor entered into a First Amended and Restated Declaration of
Trust, dated as of ______, 20___in order to replace the Initial Trustee;]



WHEREAS, as of the date hereof, no interests in the Trust have been issued;



WHEREAS, all of the Trustees and the Sponsor, by this Declaration, amend and restate each and every
term and provision of the Original Declaration.



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




ARTICLE I

INTERPRETATION AND DEFINITIONS




SECTION 1.1 Definitions.



Unless the context otherwise requires:




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




1









 









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




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




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




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




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



“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.



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



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



“Business Day” means any day other than a Saturday, Sunday or a day on which banking
institutions in the City of New York, New York, the City of Pittsburgh, Pennsylvania or the
Commonwealth of Pennsylvania are authorized or obligated by any applicable law, regulation or
executive order to close.



“Capital Securities Guarantee” means the guarantee agreement dated as of ______, 20___,
of the Sponsor in respect of the Capital Securities.



“Capital Security” has the meaning specified in Section 7.1.



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



“Capital Security Certificate” means a certificate representing a Capital Security
substantially in the form of Exhibit A-1.



“Certificate” means a Common Security Certificate or a Capital Security Certificate.



“Clearing Agency” means an organization registered as a “Clearing Agency” pursuant to
Section 17A of the Exchange Act that is acting as depositary for the Capital Securities and in
whose name


2









 







or in the name of a nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Capital Securities.



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



“Closing Date” means ______, 20___.



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



“Commission” means the Securities and Exchange Commission as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Declaration 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 Security” has the meaning specified in Section 7.1.



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



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



“Corporate Trust Office” means the principal office of the Institutional Trustee in the
City of New York, New York at which at any particular time its corporate trust business shall be
principally administered, which at the date hereof is located at 101 Barclay Street, Floor 8 West,
New York, New York 10286.



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



“Debenture Issuer” means The PNC Financial Services Group, Inc. (or the Sponsor) in its
capacity as issuer of the Debentures under the Indenture.



“Debenture Trustee” means The Bank of New York, as trustee under the Indenture until a
successor is appointed thereunder, and thereafter means such successor trustee.



“Debentures” means the series of Debentures to be issued by the Debenture Issuer under the
Indenture to be held by the Institutional Trustee, a specimen certificate for such series of
Debentures being Exhibit B.



“Default” in respect of the Securities means a Default (as defined in the Indenture) has
occurred and is continuing in respect of the Debentures. The lower case term “default” as used
herein means a Default as defined in the Indenture, not including any periods of grace provided for
therein and irrespective of the giving of any notice provided therein.



“Definitive Capital Security Certificates” has the meaning set forth in Section 9.4.



“Delaware Trustee” has the meaning set forth in Section 5.2.



“Distribution” has the meaning set forth in Section 6.1.



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




3









 








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



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



“Global Certificate” has the meaning set forth in Section 9.4.



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



“Indemnified Person” means a Company Indemnified Person or a Fiduciary Indemnified Person.




“Indenture” means the Indenture, dated as of ______, 20___(as supplemented from time to
time), between the Debenture Issuer and the Debenture Trustee, pursuant to which the Debentures are
to be issued.



“Initial Trustee” has the meaning set forth in the recitals hereto.



“Institutional Trustee” means the Trustee meeting the eligibility requirements set forth in
Section 5.3.



“Institutional Trustee Account” has the meaning set forth in Section 3.8(c).



“Investment Company” means an investment company that is required to be registered under
the Investment Company Act.



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



“Investment Company Event” has the meaning set forth in Annex I hereto.



“Legal Action” has the meaning set forth in Section 3.6(g).



“Majority in liquidation amount of the Securities” means, except as provided in the terms
of the Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting
together as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a class, who are the
record owners of an aggregate liquidation amount representing more than 50% of the aggregate
liquidation amount (including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.



“Officers’ Certificate” means, with respect to any Person, a certificate signed by two
Authorized Officers of such Person. Any Officers’ Certificate delivered with respect to compliance
with a condition or covenant provided for in this Declaration shall include:




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




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




4









 








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




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



“Overallotment Closing Date” means the day on which delivery of and payment for any Capital
Securities issued in connection with an overallotment option are made.



“Paying Agent” has the meaning specified in Section 3.8(h).



“Payment Amount” has the meaning specified in Section 6.1.



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



“PNC” means The PNC Financial Services Group, Inc., a Pennsylvania corporation.



“Quorum” means any one Regular Trustee or, if there is only one Regular Trustee, such
Regular Trustee.



“Rating Agency Event” has the meaning set forth in Annex I hereto.



“Regular Trustee” has the meaning specified in Section 5.1.



“Regulatory Capital Event” has the meaning set forth in Annex I hereto.



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



“Responsible Officer” means, with respect to the Institutional Trustee, any officer within
the Corporate Trust Office of the Institutional Trustee with direct responsibility for the
administration of this Declaration and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that officer’s knowledge of
and familiarity with the particular subject.



“Rule 3a-5” means Rule 3a-5 under the Investment Company Act.



“Rule 3a-7” means Rule 3a-7 under the Investment Company Act.



“Securities” means the Common Securities and the Capital Securities.



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



“Special Event” has the meaning set forth in Annex I hereto.



“Sponsor” means The PNC Financial Services Group, Inc. until a successor Person shall have
become such pursuant to the applicable provisions of this Declaration, and thereafter “Sponsor”
means such successor Person.



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




5









 







“Successor Delaware Trustee” has the meaning set forth in Section 5.6.



“Successor Entity” has the meaning set forth in Section 3.15(b).



“Successor Institutional Trustee” has the meaning set forth in Section 5.6.



“Successor Securities” has the meaning set forth in Section 3.15(b).



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



“Tax Event” has the meaning set forth in Annex I hereto.



“10% in liquidation amount of the Securities” means, except as provided in the terms of the
Capital Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities voting
together as a single class or, as the context may require, Holders of outstanding Capital
Securities or Holders of outstanding Common Securities voting separately as a class, who are the
record owners of an aggregate liquidation amount representing 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.



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



“Trustee” or “Trustees” means each Person who has signed this Declaration as a
trustee, so long as such Person shall continue in office in accordance with the terms hereof, and
all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.



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



“Underwriting
Agreement” means the Underwriting Agreement for the offering and sale of
Capital Securities in the form of Exhibit C.




ARTICLE II

TRUST INDENTURE ACT




SECTION 2.1 Trust Indenture Act; Application.




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




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




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




6









 








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




SECTION 2.2 Lists of Holders of Securities.




          (a) Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Institutional Trustee (i) within 14 days after each record date for payment of Distributions, a
list, in such form as the Institutional Trustee may reasonably require, of the names and addresses
of the Holders of the Securities (“List of Holders”) as of such record date, provided, that neither
the Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to provide such List
of Holders at any time the List of Holders does not differ from the most recent List of Holders
given to the Institutional Trustee by the Sponsor and the Regular Trustees on behalf of the Trust,
and (ii) at any other time, within 30 days of receipt by the Trust of a written request for a List
of Holders as of a date no more than 14 days before such List of Holders is given to the
Institutional Trustee. The Institutional Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to it or which it
receives in the capacity as Paying Agent (if acting in such capacity), provided, that the
Institutional Trustee may destroy any List of Holders previously given to it on receipt of a new
List of Holders.




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




SECTION 2.3 Reports by the Institutional Trustee.




          Within 60 days after May 15 of each year, the Institutional Trustee shall provide to the
Holders of the Capital Securities such reports as are required by § 313 of the Trust Indenture Act,
if any, in the form and in the manner provided by § 313 of the Trust Indenture Act. The
Institutional Trustee shall also comply with the requirements of § 313(d) of the Trust Indenture
Act.




SECTION 2.4 Periodic Reports to Institutional Trustee.




          Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such documents, reports and information as required by § 314 of the Trust
Indenture Act (if any) and the compliance certificate required by § 314 of the Trust Indenture Act
in the form, in the manner and at the times required by § 314 of the Trust Indenture Act.




SECTION 2.5 Evidence of Compliance with Conditions Precedent.




          Each of the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Institutional Trustee such evidence of compliance with any conditions precedent provided for in
this Declaration that relate to any of the matters set forth in § 314(c) of the Trust Indenture Act
as is required by § 314(c). Any certificate or opinion required to be given by an officer pursuant
to § 314(c)(1) of the Trust Indenture Act may be given in the form of an Officers’ Certificate.




SECTION 2.6 Defaults; Waiver.




7









 








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





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




     (ii) is waivable only with the consent of holders of more than a majority in
principal amount of the Debentures (a “Super Majority”) affected thereby, only the
Holders of at least the proportion in aggregate liquidation amount of the Capital
Securities that the relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding may waive such Default in respect of the
Capital Securities under the Declaration.


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




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





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




     (ii) is waivable only with the consent of a Super Majority, except where the
Holders of the Common Securities are deemed to have waived such Default under the
Declaration as provided in this Section 2.6(b), only the Holders of at least the
proportion in aggregate liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding may waive such Default in respect of the Common Securities
under the Declaration;


provided, further each Holder of Common Securities will be deemed to have waived any such Default
and all Defaults with respect to the Common Securities and its consequences until all


8









 






Defaults with respect to the Capital Securities have been cured, waived or otherwise eliminated,
and until such Defaults with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Institutional Trustee will be deemed to be acting solely on behalf of the
Holders of the Capital Securities and only the Holders of the Capital Securities will have the
right to direct the Institutional Trustee in accordance with the terms of the Securities. The
foregoing provisions of this Section 2.6(b) shall be in lieu of §§ 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such §§ 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Declaration and the Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section 2.6(b), upon the waiver of a
Default by the Holders of a Majority in liquidation amount of the Common Securities, any such
default shall cease to exist and any Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Default with respect to the Common
Securities or impair any right consequent thereon.




          (c) A waiver of a Default under the Indenture by the Institutional Trustee at the direction of
the Holders of the Capital Securities, constitutes a waiver of the corresponding Default under this
Declaration. The foregoing provisions of this Section 2.6(c) shall be in lieu of § 316(a)(1)(B) of
the Trust Indenture Act and such § 316(a)(1)(B) of the Trust Indenture Act is hereby expressly
excluded from this Declaration and the Securities, as permitted by the Trust Indenture Act.




SECTION 2.7 Default; Notice.




          (a) The Institutional Trustee shall, within 90 days after the occurrence of a Default,
transmit by mail, first class postage prepaid, to the Holders of the Securities, notices of (i) all
defaults with respect to the Securities actually known to a Responsible Officer of the
Institutional Trustee, unless such defaults have been cured before the giving of such notice and
(ii) any notice of default received from the Indenture Trustee with respect to the Debentures,
which notice from the Institutional Trustee to the Holders shall state that a Default under the
Indenture also constitutes a Default with respect to the Securities; provided that, except for a
default in the payment of principal of (or premium, if any) or interest on any of the Debentures or
in the payment of any sinking fund installment established for the Debentures, the Institutional
Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of
the Institutional Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities.




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





     (i) a Default under Sections 5.7(b) and 5.7(c) of the Indenture; or




     (ii) any default as to which the Institutional Trustee shall have received
written notice or of which a Responsible Officer of the Institutional Trustee
charged with the administration of the Declaration shall have actual knowledge.



9









 





ARTICLE III

ORGANIZATION




SECTION 3.1 Name.




          The Trust is named “PNC Capital Trust ___,” as such name may be modified from time to time by
the Regular Trustees following written notice to the Institutional Trustee, the Delaware Trustee
and the Holders of Securities. The Trust’s activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.




SECTION 3.2 Office.




          The address of the principal office of the Trust is c/o The PNC Financial Services Group,
Inc., One PNC Plaza, 249 Fifth Avenue, Pittsburgh, Pennsylvania 15222-2407. On ten Business Days
written notice to the Institutional Trustee, the Delaware Trustee and the Holders of Securities,
the Regular Trustees may designate another principal office.




SECTION 3.3 Purpose.




          The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and use
the proceeds from such sale to acquire the Debentures, and (b) except as otherwise limited herein,
to engage in only those other activities necessary, or incidental thereto. The Trust shall not
borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets,
or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust not to
be classified for United States federal income tax purposes as a grantor trust.




SECTION 3.4 Authority.




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




SECTION 3.5 Title to Property of the Trust.




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




SECTION 3.6 Powers and Duties of the Regular Trustees.




          Once appointed, the Regular Trustees shall have the exclusive power, duty and authority to
cause the Trust to engage in the following activities:




10









 








          (a) to issue and sell the Capital Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one series of Capital
Securities and no more than one series of Common Securities, and, provided further, that there
shall be no interests in the Trust other than the Securities, and the issuance of Securities shall
be limited to a simultaneous issuance of both Capital Securities and Common Securities on the
Closing Date and any Overallotment Closing Date;




          (b) in connection with the issue and sale of the Capital Securities, at the direction of the
Sponsor, to:





     (i) execute and file with the Commission on behalf of the Trust a registration
statement on Form S-3 or on another appropriate form, or a registration statement
under Rule 462(b) of the Securities Act, in each case prepared by the Sponsor,
including any post-effective amendments, prospectuses and other documents relating
thereto, relating to the registration under the Securities Act of the Capital
Securities;




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




     (iii) execute and file an application, prepared by the Sponsor, to the New York
Stock Exchange, Inc. or any other national stock exchange for listing upon notice of
issuance of any Capital Securities;




     (iv) execute and file with the Commission on behalf of the Trust a registration
statement on Form 8-A, prepared by the Sponsor, including any pre-effective or
post-effective amendments thereto, relating to the registration of the Capital
Securities under Section 12(b) of the Exchange Act; and




     (v) deliver the Underwriting Agreement providing for the sale of the Capital
Securities;



          (c) to acquire the Debentures with the proceeds of the sale of the Capital Securities and the
Common Securities; provided, however, that the Regular Trustees shall cause legal title to the
Debentures to be held of record in the name of the Institutional Trustee for the benefit of the
Holders of the Capital Securities and the Holders of Common Securities;




          (d) to give the Sponsor and the Institutional Trustee prompt written notice of the occurrence
of a Special Event; provided, that the Regular Trustees shall consult with the Sponsor and the
Institutional Trustee before taking or refraining from taking any ministerial action in relation to
a Special Event;




          (e) to establish a record date with respect to all actions to be taken hereunder that require
a record date be established, including and with respect to, for the purposes of §316(c) of the
Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue




11









 







relevant notices to the Holders of Capital Securities and Holders of Common Securities as to
such actions and applicable record dates;




          (f) to take all actions and perform such duties as may be required of the Regular Trustees
pursuant to the terms of the Securities;




          (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action, or
otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless pursuant to
Section 3.8(e), the Institutional Trustee has the exclusive power to bring such Legal Action;




          (h) to employ or otherwise engage employees and agents (who may be designated as officers with
titles) and managers, contractors, advisors, and consultants and pay reasonable compensation for
such services;




          (i) to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;




          (j) to give the certificate required by § 314(a)(4) of the Trust Indenture Act to the
Institutional Trustee, which certificate may be executed by any Regular Trustee;




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




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




          (m) to give prompt written notice to the Holders of the Securities of any notice received from
the Debenture Issuer of its election to defer payments of interest on the Debentures by extending
the interest payment period under the Indenture;




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




          (o) to take any action, not inconsistent with this Declaration or with applicable law, that
the Regular Trustees determine in their discretion to be necessary or desirable in carrying out the
activities of the Trust as set out in this Section 3.6, including, but not limited to:





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




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



12









 






     (iii) cooperating with the Debenture Issuer to ensure that the Debentures will
be treated as indebtedness of the Debenture Issuer for United States federal income
tax purposes;


provided, that any such action does not adversely affect the interests of Holders;




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




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



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



Subject to this Section 3.6, the Regular Trustees shall have none of the powers or the authority of
the Institutional Trustee set forth in Section 3.8.



Any expenses incurred by the Regular Trustees pursuant to this Section 3.6 shall be reimbursed by
the Debenture Issuer.




SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.




          (a) The Trust shall not, and the Trustees (including the Institutional Trustee) shall not
cause the Trust to, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not:





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




     (ii) acquire any assets other than as expressly provided herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness;




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




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




     (vii) other than as provided in this Declaration or Annex I, (A) direct the
time, method and place of exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (B) waive any past Default that



13









 






is waivable under the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required unless the Trust shall have obtained
an opinion of nationally recognized tax counsel experienced in such matters to the
effect that as a result of such action, the Trust will not fail to be classified as
a grantor trust for United States federal income tax purposes.



SECTION 3.8 Powers and Duties of the Institutional Trustee.




          (a) The legal title to the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Holders of the Securities. The right, title
and interest of the Institutional Trustee to the Debentures shall vest automatically in each Person
who may hereafter be appointed as Institutional Trustee in accordance with Section 5.6. Such
vesting and cessation of title shall be effective whether or not conveyancing documents with regard
to the Debentures have been executed and delivered.




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




          (c) The Institutional Trustee shall:





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




     (ii) engage in such ministerial activities as shall be necessary or appropriate
to effect the redemption of the Capital Securities and the Common Securities to the
extent the Debentures are redeemed or mature; and




     (iii) upon written notice of distribution issued by the Regular Trustees in
accordance with the terms of the Securities, engage in such ministerial activities
as shall be necessary or appropriate to effect the distribution of the Debentures to



14









 






Holders of Securities upon the occurrence of certain Special Events or other
specified circumstances pursuant to the terms of the Securities.



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




          (e) Subject to Section 2.6, the Institutional Trustee shall take any Legal Action which arises
out of or in connection with a Default of which a Responsible Officer of the Institutional Trustee
has actual knowledge or the Institutional Trustee’s duties and obligations under this Declaration
or the Trust Indenture Act.




          (f) The Institutional Trustee shall not resign as a Trustee unless either:





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




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



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




          (h) The Institutional Trustee may authorize one or more Persons (each, a “Paying Agent”) to
pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect
to all Securities and any such Paying Agent shall comply with § 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Institutional Trustee at any time and a successor Paying
Agent or additional Paying Agents may be appointed at any time by the Institutional Trustee.




          (i) Subject to this Section 3.8, the Institutional Trustee shall have none of the duties,
liabilities, powers or the authority of the Regular Trustees set forth in Section 3.6.



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




SECTION 3.9 Certain Duties and Responsibilities of the Institutional Trustee.




          (a) The Institutional Trustee, before the occurrence of any Default and after the curing of
all Defaults that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case a Default has occurred (that has not been




15









 







cured or waived pursuant to Section 2.6) of which a Responsible Officer of the Institutional
Trustee has actual knowledge, the Institutional Trustee shall exercise such of the rights and
powers vested in it by this Declaration, and use the same degree of care and skill in the exercise
of such rights and powers, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.




          (b) No provision of this Declaration shall be construed to relieve the Institutional 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 a Default and after the curing or waiving of all
such Defaults that may have occurred:




          (A) the duties and obligations of the Institutional Trustee shall be determined
solely by the express provisions of this Declaration and the Institutional Trustee
shall not be liable except for the performance of such duties and obligations as are
specifically set forth in this Declaration, and no implied covenants or obligations
shall be read into this Declaration against the Institutional Trustee; and




          (B) in the absence of bad faith on the part of the Institutional Trustee, the
Institutional 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 Institutional Trustee and conforming to the requirements of this
Declaration; but in the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to the Institutional
Trustee, the Institutional Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Declaration;




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




     (iii) the Institutional Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a Majority in liquidation amount of the Securities
relating to the time, method and place of conducting any proceeding for any remedy
available to the Institutional Trustee, or exercising any trust or power conferred
upon the Institutional Trustee under this Declaration;




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



16









 






Declaration or indemnity reasonably satisfactory to the Institutional Trustee
against such risk or liability is not reasonably assured to it;




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




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




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




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



SECTION 3.10 Certain Rights of Institutional Trustee.




          (a) Subject to the provisions of Section 3.9:





     (i) the Institutional Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or presented by the
proper party or parties;




     (ii) any direction or act of the Sponsor or the Regular Trustees contemplated
by this Declaration shall be sufficiently evidenced by an Officers’ Certificate;




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



17









 






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




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




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




     (vii) the Institutional Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but the
Institutional Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;




     (viii) the Institutional Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Institutional Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;




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



18









 






     (x) whenever in the administration of this Declaration the Institutional
Trustee shall deem it desirable to receive instructions with respect to enforcing
any remedy or right or taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders of the Securities which instructions
may only be given by the Holders of the same proportion in liquidation amount of the
Securities as would be entitled to direct the Institutional Trustee under the terms
of the Securities in respect of such remedy, right or action, (ii) may refrain from
enforcing such remedy or right or taking such other action until such instructions
are received, and (iii) shall be protected in conclusively relying on or acting in
or accordance with such instructions; and




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



          (b) No provision of this Declaration shall be deemed to impose any duty or obligation on the
Institutional Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Institutional Trustee shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional Trustee shall be construed to be a
duty.




SECTION 3.11 Delaware Trustee.




          Notwithstanding any other provision of this Declaration other than Section 5.2, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities of the Regular Trustees or the Institutional Trustee described in
this Declaration. Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of § 3807 of the Statutory Trust Act.




SECTION 3.12 Execution of Documents.




          Unless otherwise determined by the Regular Trustees, and except as otherwise required by the
Statutory Trust Act, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute pursuant to Section
3.6.




SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.




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




SECTION 3.14 Duration of Trust.




19









 








          The Trust shall exist until dissolved and terminated pursuant to the provisions of Article
VIII hereof.




SECTION 3.15 Mergers.




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




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





     (i) such successor entity (the “Successor Entity”) either:




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




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




     (ii) the Debenture Issuer expressly acknowledges a trustee of the Successor
Entity that possesses the same powers and duties as the Institutional Trustee in its
capacity as the Holder of the Debentures;




     (iii) the Capital Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any national
securities exchange or with any other organization on which the Capital Securities
are then listed or quoted;




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




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




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




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



20









 






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




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




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




     (viii) the Sponsor guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by the Capital Securities
Guarantee.



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




ARTICLE IV

SPONSOR




SECTION 4.1 Sponsor’s Purchase of Common Securities.



On the Closing Date, the Sponsor will purchase all of the Common Securities issued by the Trust at
the same time as the Capital Securities are sold.




SECTION 4.2 Responsibilities of the Sponsor.



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




          (a) to prepare for filing by the Trust with the Commission any necessary amendments,
prospectuses or other documents relating to the Trust’s registration statement on Form S-3 relating
to the registration under the Securities Act of the Capital Securities;




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




21









 








          (c) to prepare for filing by the Trust an application to the New York Stock Exchange or any
other national stock exchange for listing upon notice of issuance of any Capital Securities;




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




          (e) to negotiate the terms of the Underwriting Agreement providing for the sale of the Capital
Securities.




ARTICLE V

TRUSTEES




SECTION 5.1 Number of Trustees.



The number of Trustees initially shall be [five (5)], and:




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




          (b) after the issuance of any Securities, the number of Trustees may be increased or decreased
by vote or written consent of the Holders of a majority in liquidation amount of the Common
Securities voting as a class;



provided, however, that the number of Trustees shall in no event be less than two (2); provided
further that (1) one Trustee, in the case of a natural person, shall be a person who is a resident
of the State of Delaware or that, if not a natural person, shall be an entity which has its
principal place of business in the State of Delaware (the “Delaware Trustee”); (2) there shall be
at least one Trustee who is an employee or officer of, or is affiliated with the Sponsor (a
“Regular Trustee”); and (3) one Trustee shall be the Institutional Trustee for so long as this
Declaration is required to qualify as an indenture under the Trust Indenture Act, and such Trustee
may also serve as Delaware Trustee if it meets the applicable requirements.




SECTION 5.2 Delaware Trustee.



If required by the Statutory Trust Act, the Delaware Trustee shall be:




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




          (b) if not a natural person, an entity which has its principal place of business in the State
of Delaware, and otherwise meets the requirements of applicable law,



provided, that if the Institutional Trustee has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law, then the Institutional Trustee
shall also be the Delaware Trustee and Section 3.11 shall have no application.




SECTION 5.3 Institutional Trustee; Eligibility.




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          (a) There shall at all times be one Trustee that shall act as Institutional Trustee which
shall:





     (i) not be an Affiliate of the Sponsor;




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




     (iii) if the Trust is excluded from the definition of an Investment Company
solely by means of Rule 3a-7 and to the extent Rule 3a-7 requires a trustee having
certain qualifications to hold title to the “eligible assets” of the Trust, the
Institutional Trustee shall possess those qualifications.



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




          (c) If the Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee and the Holders of the
Common Securities (as if such Holders were the obligor referred to in § 310(b) of the Trust
Indenture Act) shall in all respects comply with the provisions of § 310(b) of the Trust Indenture
Act.




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




          (e) The initial Institutional Trustee shall be as set forth in Section 5.5 hereof.




SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally.



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




SECTION 5.5 Initial Trustees; Additional Powers of Regular Trustees.




          (a) The initial Regular Trustees shall be:




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[_______________]

[_______________]

[_______________]



The initial Delaware Trustee shall be:



The Bank of New York (Delaware)

[100 White Clay Center

Route 273

P. O. Box 6995

Newark, Delaware 19711

Attn: Global Corporate Trust]



The initial Institutional Trustee shall be:



The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attn: Global Corporate Trust




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




          (c) Unless otherwise determined by the Regular Trustees, and except as otherwise required by
the Statutory Trust Act or applicable law, any Regular Trustee is authorized to execute on behalf
of the Trust any documents which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.6.




          (d) A Regular 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 purposes of signing any
documents which the Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.6.




SECTION 5.6 Appointment, Removal and Resignation of Trustees.




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





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




     (ii) in the case of the Regular Trustees, after the issuance of any Securities,
by vote or written consent of the Holders of a Majority in liquidation amount of the
Common Securities voting as a class;



24









 






     (iii) in the case of the Institutional Trustee and the Delaware Trustee, unless
a Default shall have occurred and be continuing after the issuance of any
Securities, by a vote or written consent of the Holders of a Majority in liquidation
amount of the Common Securities voting as a class; and




     (iv) in the case of the Institutional Trustee and the Delaware Trustee, if a
Default shall have occurred and be continuing after the issuance of the Securities,
by a vote or written consent of the Holders of a Majority in liquidation amount of
the Capital Securities voting as a class.



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





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



          (c) A Trustee appointed to office shall hold office until his successor shall have been
appointed or until his death, removal or resignation. Any Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or
upon such later date as is specified therein; provided, however, that:





     (i) No such resignation of the Trustee that acts as the Institutional Trustee
shall be effective:




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




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




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



          (d) The Holders of the Common Securities shall use their best efforts to promptly appoint a
Successor Delaware Trustee or Successor Institutional Trustee as the case may




25









 







be if the Institutional Trustee or the Delaware Trustee delivers an instrument of resignation
in accordance with this Section 5.6.




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




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




SECTION 5.7 Vacancies among Trustees.



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




SECTION 5.8 Effect of Vacancies.



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




SECTION 5.9 Meetings.



If there is more than one Regular Trustee, meetings of the Regular Trustees shall be held from time
to time upon the call of any Regular Trustee. Regular meetings of the Regular Trustees may be held
at a time and place fixed by resolution of the Regular Trustees. Notice of any in-person meetings
of the Regular Trustees shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting.
Notice of any telephonic meetings of the Regular Trustees or any committee thereof shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight
courier) not less than 24 hours before a meeting. Notices shall contain a brief statement of the
time, place and anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been lawfully called or
convened. Unless provided otherwise in this Declaration, any action of the Regular Trustees may be
taken at a


26









 






meeting by vote of a majority of the Regular Trustees present (whether in person or by telephone)
and eligible to vote with respect to such matter, provided that a Quorum is present, or without a
meeting by the unanimous written consent of the Regular Trustees. In the event there is only one
Regular Trustee, any and all action of such Regular Trustee shall be evidenced by a written consent
of such Regular Trustee.




SECTION 5.10 Delegation of Power.




          (a) Any Regular 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 3.6, including any registration statement or amendment thereto
filed with the Commission, or making any other governmental filing; and




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




SECTION 5.11 Merger, Conversion, Consolidation or Succession to Business.



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




ARTICLE VI

DISTRIBUTIONS




SECTION 6.1 Distributions.



Holders shall receive Distributions (as defined herein) in accordance with the applicable terms of
the relevant Holder’s Securities. Distributions shall be made on the Capital Securities and the
Common Securities in accordance with the preferences set forth in their respective terms. If and
to the extent that the Debenture Issuer makes a payment of interest (including Compounded Interest
(as defined in the Indenture) and Additional Interest (as defined in the Indenture)), premium
and/or principal on the Debentures held by the Institutional Trustee (the amount of any such
payment being a “Payment Amount”), the Institutional Trustee shall and is directed to make a
distribution (a “Distribution”) of the Payment Amount to Holders.




ARTICLE VII

ISSUANCE OF SECURITIES




SECTION 7.1 General Provisions Regarding Securities.




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          (a) The Regular Trustees shall on behalf of the Trust issue one class of capital securities
representing undivided beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I (the “Capital Securities”) and one class of common securities representing
undivided beneficial interests in the assets of the Trust having such terms as are set forth in
Annex I (the “Common Securities”). The Trust shall issue no securities or other interests in the
assets of the Trust other than the Capital Securities and the Common Securities.




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




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




          (d) Upon issuance of the Securities as provided in this Declaration, the Securities so issued
shall be deemed to be validly issued, fully paid and non-assessable.




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




ARTICLE VIII

TERMINATION OF TRUST




SECTION 8.1 Termination of Trust.




          (a) The Trust shall terminate:





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




     (ii) upon the filing of a certificate of dissolution or its equivalent with
respect to any Holder of the Common Securities or the Sponsor; the filing of a
certificate of cancellation with respect to the Trust or the revocation of the
charter of any Holder of the Common Securities or the Sponsor and the expiration of
90 days after the date of revocation without a reinstatement thereof;



28









 






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




     (iv) Subject to obtaining any required regulatory approval, when all of the
Securities have been called for redemption and the amounts necessary for redemption
thereof have been paid to the Holders in accordance with the terms of the
Securities;




     (v) Subject to obtaining any required regulatory approval, when the Trust shall
have been dissolved in accordance with the terms of the Securities upon election by
the Sponsor of its right to terminate the Trust and distribute all of the Debentures
to the Holders of Securities in exchange for all of the Securities and all of the
Debentures shall have been distributed to the Holders of Securities in accordance
with such election; or




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



          (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a),
and after satisfaction of liabilities to creditors of the Trust as required by applicable law,
including Section 3808 of the Statutory Trust Act, and subject to the terms set forth in Annex I,
the Delaware Trustee, when notified in writing of the completion of the winding up of the Trust in
accordance with the Statutory Trust Act, shall terminate the Trust by filing, at the expense of the
Sponsor, a certificate of cancellation with the Secretary of State of the State of Delaware.




          (c) The provisions of Section 3.9 and Article X shall survive the termination of the Trust.




ARTICLE IX

TRANSFER OF INTERESTS




SECTION 9.1 Transfer of Securities.




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




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




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





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



29









 






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



SECTION 9.2 Transfer of Certificates.



The Regular Trustees shall provide for the registration of Certificates and of transfers of
Certificates, which will be effected without charge but only upon payment (with such indemnity as
the Regular Trustees may require) in respect of any tax or other government charges that may be
imposed in relation to it. Upon surrender for registration of transfer of any Certificate, the
Regular Trustees shall cause one or more new Certificates to be issued in the name of the
designated transferee or transferees. Every Certificate surrendered for registration of transfer
shall be accompanied by a written instrument of transfer in form satisfactory to the Regular
Trustees duly executed by the Holder or such Holder’s attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer shall be canceled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this Declaration.




SECTION 9.3 Deemed Security Holders.



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




SECTION 9.4 Book Entry Interests.



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




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




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




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




          (d) the rights of the Capital Security Beneficial Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements between such
Capital Security Beneficial Owners and the Clearing Agency and/or the Clearing Agency Participants.
The Clearing Agency shall receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants and will make book entry transfers among the
Clearing Agency Participants.




SECTION 9.5 Notices to Clearing Agency.



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




SECTION 9.6 Appointment of Successor Clearing Agency.



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




SECTION 9.7 Definitive Capital Security Certificates.



If:




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




          (b) the Regular Trustees elect after consultation with the Sponsor to terminate the book entry
system through the Clearing Agency with respect to the Capital Securities,



then:




          (c) Definitive Capital Security Certificates shall be prepared by the Regular Trustees on
behalf of the Trust with respect to such Capital Securities; and




          (d) upon surrender of the Global Certificates by the Clearing Agency, accompanied by
registration instructions, the Regular Trustees shall cause Definitive Certificates to be delivered
to Capital Security Beneficial Owners in accordance with the instructions of the Clearing Agency.
Neither the Trustees nor the Trust shall be liable for any delay in delivery of such instructions
and each of them may conclusively rely on and shall be protected in relying on, said instructions
of the Clearing Agency. The Definitive Capital Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the
Regular Trustees, as evidenced by their execution thereof, and may have such




31









 







letters, numbers or other marks of identification or designation and such legends or
endorsements as the Regular Trustees may deem appropriate, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which Capital Securities may be listed, or to conform to usage.




SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.



If:




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




          (b) there shall be delivered to the Regular Trustees such evidence of loss and such security
or indemnity as may be required by them to keep each of them harmless.



then, in the absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, any Regular Trustee on behalf of the Trust shall execute and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this Section 9.8, the
Regular Trustees may require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall
be found at any time.




ARTICLE X

LIMITATION OF LIABILITY OF HOLDERS OF

SECURITIES, TRUSTEES OR OTHERS




SECTION 10.1 Liability.




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





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




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



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




          (c) Pursuant to § 3803(a) of the Statutory Trust Act, the Holders of the Capital Securities
shall be entitled to the same limitation of personal liability extended to stockholders of




32









 







private corporations for profit organized under the General Corporation Law of the State of
Delaware.




SECTION 10.2 Exculpation.




          (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise
to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified
Person’s gross negligence or willful misconduct with respect to such acts or omissions.




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




SECTION 10.3 Fiduciary Duty.




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




          (b) Unless otherwise expressly provided herein:





     (i) whenever a conflict of interest exists or arises between any Covered
Persons; or




     (ii) whenever this Declaration or any other agreement contemplated herein or
therein provides that an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the Trust or any Holder of
Securities,




the Indemnified Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of each party
(including its own interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any customary or accepted



33









 






industry practices, and any applicable generally accepted accounting practices or
principles. In the absence of bad faith by the Indemnified Person, the resolution,
action or term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Declaration or any other agreement contemplated herein
or of any duty or obligation of the Indemnified Person at law or in equity or
otherwise.



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





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




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



SECTION 10.4 Indemnification.




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





     (ii) The Debenture Issuer shall indemnify, to the full extent permitted by law,
any Company Indemnified Person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right of
the Trust to procure a judgment in its favor by reason of the fact that he is or was
a Company Indemnified Person against expenses (including attorneys’ fees) actually
and reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to which
such Company Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of



34









 






Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court shall
deem proper.




     (iii) To the extent that a Company Indemnified Person shall be successful on
the merits or otherwise (including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in defense of any action,
suit or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a),
or in defense of any claim, issue or matter therein, he shall be indemnified, to the
full extent permitted by law, against expenses (including attorneys’ fees) actually
and reasonably incurred by him in connection therewith.




     (iv) Any indemnification under paragraphs (i) and (ii) of this Section 10.4(a)
(unless ordered by a court) shall be made by the Debenture Issuer only as authorized
in the specific case upon a determination that indemnification of the Company
Indemnified Person is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (1) by the Regular Trustees by a majority vote of a quorum consisting of
such Regular Trustees who were not parties to such action, suit or proceeding, (2)
if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.




     (v) Expenses (including attorneys’ fees) incurred by a Company Indemnified
Person in defending a civil, criminal, administrative or investigative action, suit
or proceeding referred to in paragraphs (i) and (ii) of this Section 10.4(a) shall
be paid by the Debenture Issuer in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such Company
Indemnified Person to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Debenture Issuer as authorized in this
Section 10.4(a). Notwithstanding the foregoing, no advance shall be made by the
Debenture Issuer if a determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of disinterested Regular Trustees,
(ii) if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent legal counsel in a written
opinion or (iii) the Common Security Holder of the Trust, that, based upon the facts
known to the Regular Trustees, counsel or the Common Security Holder at the time
such determination is made, such Company Indemnified Person acted in bad faith or in
a manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such
Company Indemnified Person believed or had reasonable cause to believe his conduct
was unlawful. In no event shall any advance be made in instances where the Regular
Trustees, independent legal counsel or Common Security Holder reasonably determine
that such person deliberately breached his duty to the Trust or its Common or
Capital Security Holders.



35









 






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




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




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




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



          (b) The Debenture Issuer agrees to indemnify the (i) Institutional Trustee, (ii) the Delaware
Trustee, (iii) any Affiliate of the Institutional Trustee and the Delaware Trustee, and (iv) any
officers, directors, shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee and the Delaware Trustee (each of the Persons in
(i) through (iv) being referred to as a “Fiduciary Indemnified Person”) for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the acceptance or
administration or the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or investigating any claim or
liability in connection with the exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 10.4(b) shall survive the resignation or




36









 







removal of the Institutional Trustee or the Delaware Trustee, as the case may be, and the
satisfaction and discharge of this Declaration.




SECTION 10.5 Outside Businesses.



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




ARTICLE XI

ACCOUNTING




SECTION 11.1 Fiscal Year.



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




SECTION 11.2 Certain Accounting Matters.




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




          (b) The Regular Trustees shall cause to be prepared and delivered to each of the Holders of
Securities, to the extent, if any, required by the Trust Indenture Act, within 90 days after the
end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements of income or loss.




          (c) The Regular Trustees shall cause to be duly prepared and delivered to each of the Holders
of Securities, any annual United States federal income tax information statement required by the
Code, containing such information with regard to the Securities held by each




37









 







Holder as is required by the Code and the Treasury Regulations. Notwithstanding any right
under the Code to deliver any such statement at a later date, the Regular Trustees shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust.




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




SECTION 11.3 Banking.




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




SECTION 11.4 Withholding.




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




ARTICLE XII

AMENDMENTS AND MEETINGS




SECTION 12.1 Amendments.




          (a) Except as otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument approved and executed by:





     (i) the Regular Trustees (or, if there are more than two Regular Trustees a
majority of the Regular Trustees);



38









 






     (ii) if the amendment affects the rights, powers, duties, obligations or
immunities of the Institutional Trustee, the Institutional Trustee; and




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



          (b) no amendment shall be made, and any such purported amendment shall be void and
ineffective:





     (i) unless, in the case of any proposed amendment, the Institutional Trustee
shall have first received an Officers’ Certificate from each of the Trust and the
Sponsor that such amendment is permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);




     (ii) unless, in the case of any proposed amendment which affects the rights,
powers, duties, obligations or immunities of the Institutional Trustee, the
Institutional Trustee shall have first received:




          (A) an Officers’ Certificate from each of the Trust and the Sponsor that such
amendment is permitted by, and conforms to, the terms of this Declaration (including
the terms of the Securities); and




          (B) an opinion of counsel (who may be counsel to the Sponsor or the Trust) that
such amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities); and




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




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




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




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



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




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




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




39









 








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




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





     (i) cure any ambiguity;




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




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




     (iv) to conform to any change in Rule 3a-5 or Rule 3a-7 or written change in
interpretation or application of Rule 3a-5 or Rule 3a-7 by any legislative body,
court, government agency or regulatory authority which amendment does not have a
material adverse effect on the right, preferences or privileges of the Holders; and




     (v) to modify, eliminate and add to any provision of the Declaration to such
extent as may be reasonably necessary to effectuate any of the foregoing or to
otherwise comply with applicable law.



SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.




          (a) Meetings of the Holders of any class of Securities may be called at any time by the
Regular Trustees (or as provided in the terms of the Securities) to consider and act on any matter
on which Holders of such class of Securities are entitled to act under the terms of this
Declaration, the terms of the Securities or the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading. The Regular Trustees shall call a meeting of the
Holders of such class if directed to do so for any proper purpose by the Holders of Securities
representing at least 10% in liquidation amount of such class of Securities. Such direction shall
be given by delivering to the Regular Trustees one or more calls in a writing stating that the
signing Holders of Securities wish to call a meeting and indicating the general or specific purpose
for which the meeting is to be called. Any Holders of Securities calling a meeting shall specify
in writing the Security Certificates held by the Holders of Securities exercising the right to call
a meeting and only those Securities specified shall be counted for purposes of determining whether
the required percentage set forth in the second sentence of this paragraph has been met.




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





     (i) notice of any such meeting shall be given to all the Holders of Securities
having a right to vote thereat at least 7 days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or the rules of any stock
exchange on which the Capital Securities are listed or admitted for



40









 






trading, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting forth the
action so taken is signed by the Holders of Securities owning not less than the
minimum amount of Securities in liquidation amount that would be necessary to
authorize or take such action at a meeting at which all Holders of Securities having
a right to vote thereon were present and voting. Prompt notice of the taking of
action without a meeting shall be given to the Holders of Securities entitled to
vote who have not consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holder for the purpose of taking any action
without a meeting shall be returned to the Trust within the time specified by the
Regular Trustees;




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




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




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



ARTICLE XIII

REPRESENTATIONS OF INSTITUTIONAL TRUSTEE

AND DELAWARE TRUSTEE




SECTION 13.1 Representations and Warranties of Institutional Trustee.



The Trustee that acts as initial Institutional Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Declaration, and each Successor Institutional Trustee represents
and


41









 






warrants to the Trust and the Sponsor at the time of the Successor Institutional Trustee’s
acceptance of its appointment as Institutional Trustee that:




          (a) the Institutional Trustee is a Person eligible to act as Institutional Trustee under
Section 5.3(a), with power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;




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




          (c) the execution, delivery and performance of the Declaration by the Institutional Trustee
does not conflict with or constitute a breach of the charter or By-laws of the Institutional
Trustee; and




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




SECTION 13.2 Representations and Warranties of Delaware Trustee.



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




          (a) The Delaware Trustee is a Person eligible to act as Delaware Trustee under Section 5.4,
with power and authority to execute and deliver, and to carry out and perform its obligations
under the terms of, the Declaration.




          (b) The Delaware Trustee has been authorized to perform its obligations under the Certificate
of Trust and the Declaration. The Declaration under Delaware law constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency, and other similar laws
affecting creditors’ rights generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered in a proceeding in
equity or at law).




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




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





42









 





ARTICLE XIV

MISCELLANEOUS




SECTION 14.1 Notices.



All notices provided for in this Declaration shall be in writing, duly signed by the party giving
such notice, and shall be delivered, telecopied or mailed by registered or certified mail, as
follows:




          (a) if given to the Trust, in care of the Regular Trustees at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to the Holders of the
Securities):



PNC Capital Trust __

c/o The PNC Financial Services Group, Inc.

One PNC Plaza

249 Fifth Avenue

Pittsburgh, Pennsylvania 15222

Attention: [                                        ]




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



The Bank of New York (Delaware)

[100 White Clay Center

Route 273

P.O. Box 6995

Newark, Delaware 19711

Attention: Global Corporate Trust]




          (c) if given to the Institutional Trustee, at the mailing address set forth below (or such
other address as the Institutional Trustee may give notice of to the Holders of the Securities):



The Bank of New York

101 Barclay Street, Floor 8 West

New York, New York 10286

Attention: Global Corporate Trust




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



The PNC Financial Services Group, Inc.

One PNC Plaza

249 Fifth Avenue

Pittsburgh, Pennsylvania 15222

Attention: [                                        ]




43









 





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




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




SECTION 14.2 Governing Law.




          This Declaration and the rights of the parties hereunder shall be governed by and interpreted
in accordance with the laws of the State of Delaware and all rights and remedies shall be governed
by such laws without regard to principles of conflict of laws.




SECTION 14.3 Intention of the Parties.



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



SECTION 14.4 Headings.



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



SECTION 14.5 Successors and Assigns.



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



SECTION 14.6 Partial Enforceability.



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



SECTION 14.7 Counterparts. This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the signature of each of the
Trustees to one of such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.




44









 




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




	 	 	 	 	 	 	 
	 
	 	 	 	 	 
	 	 	Name:	 	 
	 	 	Title: Regular Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK (DELAWARE),

as Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK, as Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	THE PNC FINANCIAL SERVICES GROUP, INC., as Sponsor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Name:	 	 
	 	 	Title:	 	 






45









 





ANNEX I




TERMS OF

[___]% CAPITAL SECURITIES

[___]% COMMON SECURITIES



Pursuant to Section 7.1 of the [Second] Amended and Restated Declaration of Trust, dated as of
                    , 20___ (as amended from time to time, the “Declaration”), the designation, rights,
privileges, restrictions, preferences and other terms and provisions of the Capital Securities and
the Common Securities are set out below (each capitalized term used but not defined herein has the
meaning set forth in the Declaration or, if not defined in such Declaration, as defined in the
Prospectus referred to below):





	 	1.	 	Designation and Number.






	 	(a)	 	Capital Securities. [                    ] Capital Securities of the Trust with
an aggregate liquidation amount with respect to the assets of the Trust of [                    ]
dollars ($[                    ]), and a liquidation amount with respect to the assets of the
Trust of $25 per capital security, are hereby designated for the purposes of
identification only as “[___]% Capital Securities” (the “Capital Securities”). The
Capital Security Certificates evidencing the Capital Securities shall be substantially
in the form of Exhibit A-1 to the Declaration, with such changes and additions thereto
or deletions therefrom as may be required by ordinary usage, custom or practice or to
conform to the rules of any stock exchange on which the Capital Securities are listed.
	 
	 	(b)	 	Common Securities. [                    ] Common Securities of the Trust with an
aggregate liquidation amount with respect to the assets of the Trust of [                    ]
dollars ($[                    ]), and a liquidation amount with respect to the assets of the
Trust of $25 per common security, are hereby designated for the purposes of
identification only as “[___]% Common Securities” (the “Common Securities”). The
Common Security Certificates evidencing the Common Securities shall be substantially in
the form of Exhibit A-2 to the Declaration, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.






	 	2.	 	Distributions.






	 	(a)	 	Distributions payable on each Security will be fixed at a rate per annum of
[___]% (the “Coupon Rate”) of the stated liquidation amount of $25 per Security, such
rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. Distributions in arrears beyond the first date such
Distributions are payable (or would be payable, if not for any Extension Period (as
defined below) or default by the Debenture Issuer on the Debentures) will bear interest
thereon compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term “Distributions” as used herein includes such cash distributions and any
such interest payable unless otherwise stated. A Distribution is payable only to the
extent that payments are made in respect of the Debentures held by the




I-1









 








	 	 	 	Institutional Trustee and to the extent the Institutional Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day year
of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.






	 	(b)	 	Distributions on the Securities will be cumulative, will accrue from and
including [                    ], 20[___], and will be payable quarterly in arrears, on
[                    ], [                    ], [                    ] and [  
                  ] of each year, commencing on
[                    ], 20[___]. When, as and if available for payment, Distributions will be
made by the Institutional Trustee, except as otherwise described below. The Debenture
Issuer has the right under the Indenture to defer payments of interest on the
Debentures from time to time for a period not exceeding 40 consecutive quarters (each
an “Extension Period”), during which Extension Period no interest shall be due and
payable on the Debentures, provided, that no Extension Period may extend beyond the
date of maturity of the Debentures. As a consequence of the Debenture Issuer’s
deferral of interest payments, quarterly Distributions will also be deferred. Despite
such deferral, quarterly Distributions will continue to accrue with interest thereon
(to the extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. In the event that the Debenture Issuer exercises its
right to defer interest payments, then (a) the Debenture Issuer shall not declare or
pay any dividend on, make any distributions with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock or make
any guarantee payment with respect thereto other than: (i) repurchases, redemptions or
other acquisitions of shares of capital stock of the Company in connection with any
employment contract, benefit plan or other similar arrangement with or for the benefit
of employees, officers, directors or consultants, (ii) repurchases of shares of common
stock of PNC pursuant to a contractually binding requirement to buy stock existing
prior to the commencement of the Extension Period, including under a contractually
binding stock repurchase plan, (iii) as a result of an exchange or conversion of any
class or series of the Company’s capital stock for any other class or series of the
Company’s capital stock, (iv) the purchase of fractional interests in shares of the
Company’s capital stock pursuant to the conversion or exchange provisions of such
capital stock or the security being converted or exchanged, or (v) the purchase of
PNC’s capital stock in connection with the distribution thereof; and (b) the Debenture
Issuer shall not make any payment of interest, principal or premium on, or repay,
repurchase or redeem, any debt securities or guarantees it has issued that rank equally
with or junior to the Debentures other than any payment of current or deferred interest
on parity securities made pro rata to the amounts due on such parity securities
(including the Debentures), provided that such payments are made in accordance with the
Alternative Payment Mechanism, as described below and in the Prospectus, and any
payments of deferred interest on parity securities that, if not made, would cause the
Debenture Issuer to breach the terms of the instrument governing such parity security.
The foregoing, however, will not apply to any stock dividends paid by PNC where the
dividend stock is the same stock as




I-2









 












	 	 	 	that on which the dividend is being paid. In addition, the Debenture Issuer may pay
current interest at any time with cash from any source. Prior to the termination of
any such Extension Period, the Debenture Issuer may further extend such Extension
Period; provided, that such Extension Period, together with all such previous and
further extensions thereof, may not exceed 40 consecutive quarters; provided
further, that no Extension Period may extend beyond the maturity of the Debentures.
Payments of deferred Distributions and accrued interest thereon will be payable to
Holders as they appear on the books and records of the Trust on the first record
date before the end of the Extension Period. Upon the termination of any Extension
Period and the payment of all amounts then due, the Debenture Issuer may commence a
new Extension Period, subject to the above requirements. The Regular Trustees will
give notice to each Holder of any Extension Period upon their receipt of notice
thereof from the Debenture Issuer.
	 
	 	(c)	 	If the Debenture Issuer does not pay all accrued and unpaid interest on the
Debentures for a period of 20 consecutive quarterly periods or if the Debenture Issuer
pays current interest on the Debentures during an Extension Period, it will be subject
to the “Alternative Payment Mechanism,” whereby the Debenture Issuer will be obliged to
continuously use its commercially reasonable efforts to sell shares of its common stock
(including treasury shares) and apply the net proceeds from such sale to pay deferred
interest. The Debenture Issuer will notify the Board of Governors of the Federal
Reserve Bank and the Federal Reserve Bank of Cleveland, or its successor as the
Debenture Issuer’s primary federal banking regulator (collectively, the “Federal
Reserve”) (1) of the commencement of any Extension Period, (2) of the fifth anniversary
of the commencement of an Extension Period or earlier payment of current interest on
the Debentures during an Extension Period and (3) of its intention to sell shares of
its common stock and/or Qualified Warrants (as defined below) and to apply the net
proceeds from such sale to pay deferred interest on the Debentures at least 25 Business
Days in advance of the relevant payment date (or such longer period as may be required
by the Federal Reserve or by other supervisory action). The Debenture Issuer may pay
accrued and unpaid interest on the Debentures on or prior to the next interest payment
date using only the net proceeds (after underwriters’ or placement agents’ fees,
commissions or discounts and other expenses relating to the issuances) of such sales
received by the Debenture Issuer during the 180-day period prior to that interest
payment date, except that the Debenture Issuer may pay accrued and unpaid interest on
the Debentures with cash from any source (i) upon the maturity of the Debentures, (ii)
during the occurrence and continuation of a Supervisory Event (as defined in the
Indenture) or (iii) if an Event of Default and Acceleration under the Indenture shall
have occurred and be continuing. Corresponding Distributions will be made on the
Securities. If (1) a Supervisory Event or (2) a Market Disruption Event (as defined in
the Indenture) shall have occurred and be continuing; then the Debenture Issuer will be
excused from its obligation to use its commercially reasonable efforts to sell its
common stock and apply the net proceeds of such sale to pay accrued and unpaid interest
on the Debentures. The obligation of the Debenture Issuer to use commercially
reasonable efforts to sell its common stock and apply the net proceeds of such sale to
pay accrued and unpaid interest on the Debentures shall





I-3









 







	 	 	 	resume at such time as no Market Disruption Event or Supervisory Event exists or is
continuing. The Debenture Issuer has no obligation to sell Qualified Warrants or to
apply the proceeds of such sale to pay deferred interest, but may do so at its
option. The Debenture Issuer is not permitted to sell shares of common stock in
excess of a number of shares of common stock (the “Share Cap Amount”) which at
                    , 20___ is equal to                     , for the purpose of satisfying the Alternative
Payment Mechanism or otherwise paying deferred interest on the Debentures then
outstanding. If the issued and outstanding shares of common stock shall have been
changed into a different number of shares or a different class by reason of any
stock split, reverse stock split, stock dividend, reclassification,
recapitalization, split-up, combination, exchange of shares or other similar
transaction, then the Share Cap Amount shall be correspondingly adjusted. The
Debenture Issuer may, at its discretion, increase the Share Cap Amount (including
through the increase of its authorized share capital, if necessary) to satisfy its
obligations to pay deferred interest. The Share Cap Amount applies to payments of
deferred interest on the Debentures only, and not to any payments that may be made
on other securities using proceeds from the sale of common stock under terms similar
to those of the Alternative Payment Mechanism. The Debenture Issuer will not be
obligated to issue common stock for the purpose of paying deferred interest on the
Debentures prior to the fifth anniversary of the commencement of an Extension Period
if the gross proceeds of any issuance of common stock and Qualified Warrants applied
to pay deferred interest on the Debentures pursuant to the Alternative Payment
Mechanism, together with the gross proceeds of all prior issuances of common stock
and Qualified Warrants applied since the commencement of the Extension Period, would
exceed an amount equal to 2% of the product of (1) the average of the Current Stock
Market Prices (as defined in the Indenture) of the Debenture Issuer’s common stock
on the 10 consecutive trading days ending on the fourth trading day immediately
preceding (but not including) the date of issuance by the Debenture Issuer of common
stock applied to pay deferred interest on the Debentures pursuant to the Alternative
Payment Mechanism and (2) the total number of issued and outstanding shares of the
Debenture Issuer’s common stock as of the date of the Debenture Issuer’s then most
recent publicly available consolidated financial statements (the “APM Maximum
Obligation”). The APM Maximum Obligation applies separately to proceeds raised to
pay deferred interest on the Debentures only, and not to proceeds raised to make
payments on any other securities having terms similar to those of the Alternative
Payment Mechanism. Once the Debenture Issuer reaches the APM Maximum Obligation for
an Extension Period, the Debenture Issuer will not be obligated to issue more common
stock or Qualified Warrants in satisfaction of the Alternative Payment Mechanism
prior to the fifth anniversary of the commencement of an Extension Period even if
the Current Stock Market Price of the Debenture Issuer’s common stock or the number
of outstanding shares of its common stock subsequently increase. The APM Maximum
Obligation will cease to apply following the fifth anniversary of the commencement
of an Extension Period, at which point the Debenture Issuer must repay any deferred
interest, regardless of the time at which it was deferred, using proceeds from sales
of the Debenture Issuer’s





I-4









 











	 	 	 	common stock, including treasury shares, subject to any Market Disruption Event,
Supervisory Event, and the Share Cap Amount. If the APM Maximum Obligation has been
reached during an Extension Period and the Debenture Issuer subsequently repays all
deferred interest, the APM Maximum Obligation will cease to apply at the termination
of such Extension Period and will not apply again unless and until the Debenture
Issuer starts a new Extension Period. “Qualified Warrants” means warrants for the
Debenture Issuer’s common stock that (1) have an exercise price greater than the
Current Stock Market Price of the Debenture Issuer’s common stock at their date of
issuance, and (2) the Debenture Issuer is not entitled to redeem for cash and the
holders are not entitled to require the Debenture Issuer to repurchase for cash in
any circumstances.
	 
	 	(d)	 	Distributions on the Securities will be payable to the Holders thereof as they
appear on the books and records of the Trust at the close of business on the relevant
record dates. While the Capital Securities remain in book-entry only form, the
relevant record dates shall be one Business Day prior to the relevant payment dates
which payment dates shall correspond to the interest payment dates on the Debentures.
Subject to any applicable laws and regulations and the provisions of the Declaration,
each such payment in respect of the Capital Securities will be made as described under
the heading “Description of the Capital Securities — Book-Entry Only Issuance” in the
Prospectus dated [                    ], 20[___] (the “Prospectus”), of the Trust included in the
Registration Statement on Form S-3 of the Sponsor, the Trust and certain other
statutory trusts. The relevant record dates for the Common Securities shall be the
same record date as for the Capital Securities. If the Capital Securities shall not
continue to remain in book-entry only form, the relevant record dates for the Capital
Securities shall conform to the rules of any securities exchange on which the
securities are listed and, if none, shall be selected by the Regular Trustees, which
dates shall be more than 14 days but less than 60 days prior to the relevant payment
dates, which payment dates shall correspond to the interest payment dates on the
Debentures. Distributions payable on any Securities that are not punctually paid on
any Distribution payment date, as a result of the Debenture Issuer having failed to
make a payment under the Debentures, will cease to be payable to the Person in whose
name such Securities are registered on the relevant record date, and such deferred or
defaulted Distribution will instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date determined
in accordance with the Indenture. If any date on which Distributions are payable on
the Securities is not a Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect as if
made on such date.





I-5









 






	 	3.	 	Liquidation Distribution Upon Dissolution.






	 	(a)	 	In the event of any voluntary or involuntary dissolution, winding-up or
termination of the Trust, the Holders of the Securities on the date of the dissolution,
winding-up or termination, as the case may be, will be entitled to receive out of the
assets of the Trust available for distribution to Holders of Securities after
satisfaction of liabilities of creditors, distributions in an amount equal to the
aggregate of the stated liquidation amount of $25 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”), unless, in connection with such dissolution, winding-up or termination,
Debentures in an aggregate principal amount equal to the aggregate stated liquidation
amount of, with an interest rate equal to the Coupon Rate, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on, such
Securities outstanding at such time, have been distributed on a Pro Rata basis to the
Holders of the Securities in exchange for such Securities. Prior to any such
Liquidation Distribution, the Debenture Issuer will obtain any required regulatory
approval.
	 
	 	(b)	 	If, upon any such dissolution, the Liquidation Distribution can be paid only in
part because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on the
Securities shall be paid on a Pro Rata basis.






	 	4.	 	Redemption and Distribution.






	 	(a)	 	Upon the repayment of the Debentures in whole or in part at maturity or upon
redemption either at the option of the Debenture Issuer or pursuant to a Tax Event, an
Investment Company Event or a Regulatory Capital Event (as described below), the
proceeds from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate principal
amount of the Debentures so repaid or redeemed at a redemption price of $25 per
Security plus an amount equal to accrued and unpaid Distributions thereon at the date
of the redemption, payable in cash.
	 
	 	(b)	 	Upon the repayment of the Debentures in whole or in part at upon redemption
pursuant to a Rating Agency Event (as described below), the redemption price will equal
the greater of (a) $25 per Debenture and (b) the sum of the present values of $25 per
Debenture and all scheduled payments of interest from the redemption date to and
including [                    ], 20___, discounted to the redemption date on a quarterly basis
(assuming a 360-day year consisting of twelve 30-day months) at a discount rate equal
to the Treasury Rate plus[___], in each case plus accrued and unpaid interest,
including any additional interest (as described in the Prospectus), to the redemption
date.
	 
	 	(c)	 	Holders shall be given not less than 30 nor more than 60 days’ notice of
redemption. Prior to any such redemption, the Debenture Issuer will obtain any
required regulatory approval.





I-6









 






	 	(d)	 	If fewer than all the outstanding Securities are to be so redeemed, the
Securities will be redeemed Pro Rata as between the two classes and the Capital
Securities to be redeemed will be as described in Section 4(f)(ii) below.
	 
	 	(e)	 	Subject to obtaining any required regulatory approval, if, at any time, a Tax
Event, an Investment Company Event, a Rating Agency Event or a Regulatory Capital Event
(each a “Special Event”) shall occur and be continuing, PNC shall have the right, upon
not less than 30 nor more than 60 days’ notice, to redeem the Debentures, in whole or
in part, for cash within 90 days following the occurrence of such Special Event, and,
following such redemption, Securities with an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so redeemed shall be redeemed by the Trust
at the applicable redemption price on a Pro Rata basis as between the two classes;
provided, however, that if at the time there is available to PNC or the Trust the
opportunity to eliminate, within such 90-day period, the Special Event by taking some
ministerial action, such as filing a form or making an election or pursuing some other
similar reasonable measure that will have no adverse effect on the Trust, PNC or the
holders of the Securities, then PNC or the Trust will pursue such measure in lieu of
redemption.




A “Tax Event” occurs when the Debenture Issuer determines, based on an opinion of a nationally
recognized tax counsel experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, or clarification of the
laws (or any regulations thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to, or change in, or clarification of the
interpretation or application of such laws or regulations by any legislative body, court,
governmental agency or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination or pronouncement on or after the
date of the Prospectus), in either case after the date of the Prospectus, there is more than an
insubstantial risk that (i) the Trust would be subject to United States federal income tax with
respect to interest accrued or received on the Debentures, (ii) the Trust would be subject to more
than a de minimis amount of other taxes, duties or other governmental charges, or (iii) interest
payable to the Trust on the Debentures would not be deductible, in whole or in part, by the
Debenture Issuer for United States federal income tax purposes.



An “Investment Company Event” occurs when the Debenture Issuer determines, based on an opinion of a
nationally recognized counsel experienced in practice under the Investment Company Act to the
effect that, as a result of the occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a “Change in 1940 Act Law”), there is a more than an insubstantial
risk that the Trust is or will be considered an Investment Company which is required to be
registered under the Investment Company Act, which Change in 1940 Act Law becomes effective on or
after the date of the Prospectus.



A “Rating Agency Event” occurs when the Debenture Issuer reasonably determines that there has been
a clarification or change by any nationally recognized statistical rating organization within the
meaning of Rule 15c3-1 under the Exchange Act that then publishes a rating for PNC or the Trust (a
“Rating Agency”) to its equity credit criteria for securities such as the Debentures securities as
such criteria is in effect on the date of this prospectus (the “Current Criteria”), which
clarification


I-7









 






or change results in a lower equity credit being given to the Debentures as of the date of such
change than the equity credit that would have been assigned to the Debentures as of the date of
such change by such Rating Agency pursuant to its Current Criteria.



A “Regulatory Capital Event” occurs when the Debenture Issuer determines, based on an opinion of
counsel experienced in such matters (who may be an employee of PNC or any of its affiliates), that,
as a result of (a) any amendment to, clarification of or change (including any announced
prospective change) in applicable laws, regulations or guidelines or official interpretations
thereof or policies with respect thereto or (b) any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, guidelines, policies or
official interpretations thereof, which amendment, clarification, change, pronouncement or decision
is announced or is effective after the date of the Prospectus, there is more than an insubstantial
risk that the Capital Securities will no longer constitute Tier I Capital of PNC or any bank
holding company of which PNC is a subsidiary (or its equivalent) for purposes of the capital
adequacy guidelines or policies of the Board of Governors of the Federal Reserve System or its
successor as PNC’s primary federal banking regulator, provided, however that the distribution of
the Debentures in connection with the liquidation of the Trust shall not in and of itself
constitute a Regulatory Capital Event unless such liquidation shall have occurred in connection
with a Tax Event or an Investment Company Event.



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





	 	(f)	 	The Trust may not redeem fewer than all the outstanding Securities unless all
accrued and unpaid Distributions have been paid on all Securities for all quarterly
Distribution periods terminating on or before the date of redemption.
	 
	 	(g)	 	If the Debentures are distributed to the Holders of the Securities, pursuant to
the terms of the Indenture, the Debenture Issuer will use its best efforts to cause the
Debentures to be listed on the New York Stock Exchange or on such other exchange as the
Capital Securities were listed immediately prior to the distribution of the Debentures.
	 
	 	(h)	 	Redemption or Distribution procedures will be as follows:






     (i) Notice of any redemption of, or notice of distribution of Debentures in
exchange for the Securities (a “Redemption/Distribution Notice”) will be given by
the Trust by mail to the Institutional Trustee and the Delaware Trustee and to each
Holder of the Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which,



I-8









 







in the case of a redemption, will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the date of redemption or exchange
and the dates on which notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to the Holders of the
Securities. Each Redemption/Distribution Notice shall be addressed to the Holders
of the Securities at the address of each such Holder appearing in the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity of
the redemption or exchange proceedings with respect to any other Holder.




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




     (iii) If Securities are to be redeemed and the Trust gives a Redemption/
Distribution Notice, which notice may only be issued if the Debentures are redeemed
as set out in this Section 4 (which notice will be irrevocable), then (A) while the
Capital Securities are in book-entry only form, with respect to the Capital
Securities, by 12:00 noon, New York City time, on the redemption date, provided,
that the Debenture Issuer has paid to the Institutional Trustee a sufficient amount
of cash in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will deposit irrevocably with DTC or its nominee (or successor
Clearing Agency or its nominee) funds sufficient to pay the applicable redemption
price with respect to the Capital Securities to be redeemed and will give DTC (or
any successor Clearing Agency) irrevocable instructions and authority to pay the
redemption price to the Holders of the Capital Securities, and (B) with respect to
Capital Securities issued in definitive form and Common Securities, provided, that
the Debenture Issuer has paid the Institutional Trustee a sufficient amount of cash
in connection with the related redemption or maturity of the Debentures, the
Institutional Trustee will pay the relevant redemption price to the Holders of such
Securities by check mailed to the address of the relevant Holder appearing on the
books and records of the Trust on the redemption date. If a Redemption/Distribution
Notice shall have been given and funds deposited as required, then immediately prior
to the close of business on the distribution or redemption date, as applicable,
distributions will cease to accrue on the Securities so called for redemption and
all rights of the Holders of such Securities so called for redemption will cease,
except the right of the Holders of such Securities to receive the redemption price,
but without interest on such redemption price. Neither the Regular Trustees nor the
Trust shall be required to register or cause to be registered the transfer of any
Securities that have been so called for redemption. If any date fixed for
redemption of Securities is not a Business Day, then payment



I-9









 







of the redemption price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment in
respect of any such delay) except that, if such Business Day falls in the next
calendar year, such payment will be made on the immediately preceding Business Day,
in each case with the same force and effect as if made on such date fixed for
redemption. If payment of the applicable redemption price in respect of any
Securities is improperly withheld or refused and not paid either by the
Institutional Trustee or by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, Distributions on such Securities will continue to accrue from
the original redemption date to the actual date of payment, in which case the actual
payment date will be considered the date fixed for redemption for purposes of
calculating the applicable redemption price.




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




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




	 	5.	 	Voting Rights — Capital Securities.






	 	(a)	 	Except as provided under Sections 5(b) and 7 and as otherwise required by law
and the Declaration, the Holders of the Capital Securities will have no voting rights.
	 
	 	(b)	 	Subject to the requirements set forth in this paragraph, the Holders of a
Majority in aggregate liquidation amount of the Capital Securities, voting separately
as a class, may direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or direct the exercise of any trust or power conferred
upon the Institutional Trustee under the Declaration, including the right to direct the
Institutional Trustee, as holder of the Debentures, to (i) direct the time, method and
place of conducting any proceeding for any remedy available to the Debenture Trustee,
or exercise any trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past Default (as defined in the Indenture) that is waivable
under Section 5.6 of the Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due and payable or (iv)
consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required; provided, however, that, where a
consent or action under the Indenture would require the consent or act of each holder
of each Debenture affected thereby, such consent or action under the Indenture shall
not be effective until each Holder of Capital Securities shall have consented to such
action or provided such consent. The





I-10









 






	 	 	 	Institutional Trustee shall not revoke any action previously authorized or approved
by a vote of the Holders of the Capital Securities. Except with respect to
directing the time, method and place of conducting a proceeding for a remedy
available to the Debenture Trustee, the Institutional Trustee, as holder of the
Debentures, shall not take any of the actions described in clauses (i), (ii), (iii)
or (iv) above unless the Institutional Trustee has obtained an opinion of a
nationally recognized tax counsel experienced in such matters to the effect that as
a result of such action, the Trust will not fail to be classified as a grantor trust
for United States federal income tax purposes. If a Default under the Declaration
has occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such holder (a “Direct Action”) of the
principal of or interest on the Debentures having a principal amount equal to the
aggregate liquidation amount of the Capital Securities of such holder on or after
the respective due date specified in the Debentures without first (i) directing the
Institutional Trustee to enforce the terms of the Debentures or (ii) instituting a
legal proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures. Except as provided in the preceding
sentence, the Holders of Capital Securities will not be able to exercise directly
any other remedy available to the holders of the Debentures. In connection with
such Direct Action, PNC will be subrogated to the rights of such Holder of Capital
Securities under the Declaration to the extent of any payment made by PNC to such
holder of Capital Securities in such Direct Action.




Any required approval or direction of Holders of Capital Securities may be given at a separate
meeting of Holders of Capital Securities convened for such purpose, at a meeting of all of the
Holders of Securities in the Trust or pursuant to written consent. The Regular Trustees will cause
a notice of any meeting at which Holders of Capital Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to be mailed to each
Holder of record of Capital Securities. Each such notice will include a statement setting forth
(i) the date of such meeting or the date by which such action is to be taken, (ii) a description of
any resolution proposed for adoption at such meeting on which such Holders are entitled to vote or
of such matter upon which written consent is sought and (iii) instructions for the delivery of
proxies or consents.



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



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




I-11









 






	 	6.	 	Voting Rights — Common Securities.






	 	(a)	 	Except as provided under Sections 6(b), (c) and 7 or as otherwise required by
law and the Declaration, the Holders of the Common Securities will have no voting
rights.
	 
	 	(b)	 	The Holders of the Common Securities are entitled, in accordance with and
subject to Article V of the Declaration, to vote to appoint, remove or replace any
Trustee or to increase or decrease the number of Trustees.
	 
	 	(c)	 	Subject to Section 2.6 of the Declaration and only after the Default with
respect to the Capital Securities has been cured, waived, or otherwise eliminated and
subject to the requirements of the second to last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Common Securities, voting separately
as a class, may direct the time, method, and place of conducting any proceeding for any
remedy available to the Institutional Trustee, or direct the exercise of any trust or
power conferred upon the Institutional Trustee under the Declaration, including (i)
directing the time, method, place of conducting any proceeding for any remedy available
to the Debenture Trustee, or exercising any trust or power conferred on the Debenture
Trustee with respect to the Debentures, (ii) waiving any past Default (as defined in
the Indenture) that is waivable under Section 5.6 of the Indenture, or (iii) exercising
any right to rescind or annul a declaration that the principal of all the Debentures
shall be due and payable, provided that, where a consent or action under the Indenture
would require the consent or act of the Holders of greater than a majority in principal
amount of Debentures affected thereby (a “Super Majority”), the Institutional Trustee
may only give such consent or take such action at the written direction of the Holders
of at least the proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the Debentures
outstanding. Pursuant to this Section 6(c), the Institutional Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders of the Capital
Securities. Other than with respect to directing the time, method and place of
conducting any proceeding for any remedy available to the Institutional Trustee or the
Debenture Trustee as set forth above, the Institutional Trustee shall not take any
action in accordance with the directions of the Holders of the Common Securities under
this paragraph unless the Institutional Trustee has obtained an opinion of tax counsel
to the effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, any Holder of
Common Securities may institute a legal proceeding directly against any Person to
enforce the Institutional Trustee’s rights under the Declaration, without first
instituting a legal proceeding against the Institutional Trustee or any other Person.




Any approval or direction of Holders of Common Securities may be given at a separate meeting of
Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Regular Trustees will cause a notice
of any meeting at which Holders of Common Securities are entitled to vote, or of any matter upon


I-12









 






which action by written consent of such Holders is to be taken, to be mailed to each Holder of
record of Common Securities. Each such notice will include a statement setting forth (i) the date
of such meeting or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the delivery of proxies
or consents.



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





	 	7.	 	Amendments to Declaration and Indenture.






	 	(a)	 	In addition to any requirements under Section 12.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Regular Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers, preferences
or special rights of the Securities, whether by way of amendment to the Declaration or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust, other than
as described in Section 8.1 of the Declaration, then the Holders of outstanding
Securities as a class, will be entitled to vote on such amendment or proposal (but not
on any other amendment or proposal) and such amendment or proposal shall not be
effective except with the approval of the Holders of at least a Majority in liquidation
amount of the Securities, voting together as a single class; provided, however, if any
amendment or proposal referred to in clause (i) above would adversely affect only the
Capital Securities or only the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of a Majority in liquidation amount of such class
of Securities.
	 
	 	(b)	 	In the event the consent of the Institutional Trustee as the holder of the
Debentures is required under the Indenture with respect to any amendment, modification
or termination of the Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with respect to such amendment,
modification or termination as directed by a Majority in liquidation amount of the
Securities voting together as a single class; provided, however, that where a consent
under the Indenture would require the consent of the holders of greater than a majority
in aggregate principal amount of the Debentures (a “Super Majority”), the Institutional
Trustee may only give such consent at the direction of the Holders of at least the
proportion in liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding; provided,
further, that the Institutional Trustee shall not take any action in accordance with
the directions of the Holders of the Securities under this Section 7(b) unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that for the
purposes of United States federal income tax the Trust will not be classified as other
than a grantor trust on account of such action.






	 	8.	 	Pro Rata.




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





	 	9.	 	Ranking.




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





	 	10.	 	Listing.




The Regular Trustees shall use their best efforts to cause the Capital Securities to be listed on
the New York Stock Exchange.





	 	11.	 	Acceptance of Securities Guarantee and Indenture.




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





	 	12.	 	No Preemptive Rights.




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





	 	13.	 	Miscellaneous.




These terms constitute a part of the Declaration.



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




I-14









 






EXHIBIT A-1

FORM OF CAPITAL SECURITY CERTIFICATE



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



UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (55
WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CAPITAL SECURITY 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., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




	 	 	 
	Certificate Number

	 	Number of Capital Securities






CUSIP NO.                                         




Certificate Evidencing Capital Securities




of




PNC CAPITAL TRUST __




[___]% Capital Securities

(Liquidation Amount $25 per Capital Security)




PNC CAPITAL TRUST ___, a statutory trust formed under the laws of the State of Delaware (the
“Trust”), hereby certifies that                      (the “Holder”) is the registered owner of                     
(___) capital securities of the Trust representing undivided beneficial interests in the assets of
the Trust designated the [___]% Capital Securities (the “Capital Securities”). The Capital
Securities are transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities are set forth in, and this certificate and the Capital
Securities represented hereby are issued and shall in all respects be subject to, the provisions of
the [Second] Amended and Restated Declaration of Trust of the Trust dated as of                     , 20___,
as the same may be amended from



A1-1









 




time to time (the “Declaration”), including the designation of the terms of the Capital Securities
as set forth in Annex I thereto. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of the Capital
Securities Guarantee to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Capital Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.



The Holder of this certificate, by accepting this certificate, is deemed to have (i) agreed to the
terms of the Indenture and the Debentures, including that the Debentures are subordinate and junior
in right of payment to all Senior Indebtedness (as defined in the Indenture) and (ii) agreed to the
terms of the Capital Securities Guarantee, including that the Capital Securities Guarantee is (A)
subordinate and junior in right of payment to all Senior Indebtedness of PNC and (B) senior to
PNC’s common stock.



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



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




A1-2









 






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



	 	 	 	 	 
	 
	 

	 	 

Name:
	 	 
	 

	 	Title: Regular Trustee	 	 







A1-3









 










 





ASSIGNMENT



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



 



 



 




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



 



 



 



 




(Insert address and zip code of assignee)




and irrevocably appoints



 



 



 agent to transfer this Capital Security Certificate on the books of the 


 



Trust.  The agent may substitute another to act for him or her.


Date:                                                             




Signature:                                         

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





A1-4









 








EXHIBIT A-2




FORM OF COMMON SECURITY CERTIFICATE




TRANSFER OF THIS CERTIFICATE

IS SUBJECT TO THE CONDITIONS

SET FORTH IN THE DECLARATION

REFERRED TO BELOW




	 	 	 
	Certificate Number

	 	Number of Common Securities






Certificate Evidencing Common Securities




of




PNC CAPITAL TRUST __




[___]% Common Securities

(Liquidation Amount $25 per Common Security)



PNC CAPITAL TRUST ___, a statutory trust formed under the laws of the State of Delaware (the
“Trust”), hereby certifies that [The PNC Financial Services Group, Inc., a Pennsylvania
corporation], (the “Holder”), is the registered owner of                      (                    ) common securities of
the Trust representing undivided beneficial interests in the assets of the Trust designated the
[ ]% Common Securities (the “Common Securities”). The Common Securities are
transferable on the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for transfer and satisfaction
of the other conditions set forth in the Declaration (as defined below), including, without
limitation, Section 9.1 thereof. The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be subject to, the
provisions of the [Second] Amended and Restated Declaration of Trust of the Trust dated as of
                    , 20___, as the same may be amended from time to time (the “Declaration”), including the
designation of the terms of the Common Securities as set forth in Annex I thereto. Capitalized
terms used herein but not defined shall have the meaning given them in the Declaration. The
Sponsor will provide a copy of the Declaration and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.



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



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




A2-1









 




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




A2-2









 






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



	 	 	 	 	 
	 
	 

	 	 

Name:
	 	 
	 

	 	Title: Regular Trustee	 	 






A2-3









 





 





ASSIGNMENT



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



 



 



 





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



 



 



 



 





(Insert address and zip code of assignee)



and irrevocably appoints


 


 





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




Date:                                                             




Signature:                                                             




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




A2-4









 





EXHIBIT B




SPECIMEN OF DEBENTURE




B-1









 





EXHIBIT C




UNDERWRITING AGREEMENT





C-1