exv4w2






Exhibit 4.2




 

 






AMENDED AND RESTATED DECLARATION




OF TRUST



FIRST ALLIANCE CAPITAL TRUST I



Dated as of July 16, 2001



 

 











 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I

	 
	 	 	 	 
	INTERPRETATION AND DEFINITIONS

	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	ORGANIZATION

	 
	 	 	 	 
	Section 2.1 Name
	 	 	8	 
	Section 2.2 Office
	 	 	8	 
	Section 2.3 Purpose
	 	 	9	 
	Section 2.4 Authority
	 	 	9	 
	Section 2.5 Title to Property of the Trust
	 	 	9	 
	Section 2.6 Powers and Duties of the Trustees and the Administrators
	 	 	9	 
	Section 2.7 Prohibition of Actions by the Trust and the Trustees
	 	 	13	 
	Section 2.8 Powers and Duties of the Institutional Trustee
	 	 	14	 
	Section 2.9 Certain Duties and Responsibilities of the Trustees and Administrators
	 	 	16	 
	Section 2.10 Certain Rights of Institutional Trustee
	 	 	17	 
	Section 2.11 Delaware Trustee
	 	 	20	 
	Section 2.12 Execution of Documents
	 	 	20	 
	Section 2.13 Not Responsible for Recitals or Issuance of Securities
	 	 	20	 
	Section 2.14 Duration of Trust
	 	 	20	 
	Section 2.15 Mergers
	 	 	20	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	SPONSOR

	 
	 	 	 	 
	Section 3.1 Sponsor’s Purchase of Common Securities
	 	 	22	 
	Section 3.2 Responsibilities of the Sponsor
	 	 	22	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	TRUSTEES AND ADMINISTRATORS

	 
	 	 	 	 
	Section 4.1 Number of Trustees
	 	 	23	 
	Section 4.2 Delaware Trustee
	 	 	23	 
	Section 4.3 Institutional Trustee; Eligibility
	 	 	23	 
	Section 4.4 Certain Qualifications of the Delaware Trustee Generally
	 	 	24	 
	Section 4.5 Administrators
	 	 	24	 
	Section 4.6 Initial Delaware Trustee
	 	 	24	 






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	 	 	Page
	Section 4.7 Appointment Removal and Resignation of Trustees and Administrators
	 	 	24	 
	Section 4.8 Vacancies Among Trustees
	 	 	26	 
	Section 4.9 Effect of Vacancies
	 	 	26	 
	Section 4.10 Meetings of the Trustees and the Administrators
	 	 	26	 
	Section 4.11 Delegation of Power
	 	 	27	 
	Section 4.12 Conversion, Consolidation or Succession to Business
	 	 	27	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	DISTRIBUTIONS

	 
	 	 	 	 
	Section 5.1 Distributions
	 	 	27	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	ISSUANCE OF SECURITIES

	 
	 	 	 	 
	Section 6.1 General Provisions Regarding Securities
	 	 	28	 
	Section 6.2 Paying Agent, Transfer Agent and Registrar
	 	 	29	 
	Section 6.3 Form and Dating
	 	 	29	 
	Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	29	 
	Section 6.5 Temporary Securities
	 	 	30	 
	Section 6.6 Cancellation
	 	 	30	 
	Section 6.7 Rights of Holders; Waivers of Past Defaults
	 	 	30	 
	 
	 	 	 	 
	ARTICLE VII

	 
	 	 	 	 
	DISSOLUTION AND TERMINATION OF TRUST

	 
	 	 	 	 
	Section 7.1 Dissolution and Termination of Trust 
	 	 	32	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	TRANSFER OF INTERESTS

	 
	 	 	 	 
	Section 8.1 General
	 	 	33	 
	Section 8.2 Transfer Procedures and Restrictions
	 	 	34	 
	Section 8.3 Deemed Security Holders
	 	 	36	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	LIMITATION OF LIABILITY OF 

HOLDERS OF SECURITIES, TRUSTEES OR OTHERS

	 
	 	 	 	 
	Section 9.1 Liability
	 	 	37	 
	Section 9.2 Exculpation
	 	 	37	 
	Section 9.3 Fiduciary Duty
	 	 	37	 
	Section 9.4 Indemnification
	 	 	38	 






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	 	 	Page
	Section 9.5 Outside Businesses
	 	 	41	 
	Section 9.6 Compensation; Fee
	 	 	41	 
	 
	 	 	 	 
	ARTICLE X

	 
	 	 	 	 
	ACCOUNTING

	 
	 	 	 	 
	Section 10.1 Fiscal Year
	 	 	41	 
	Section 10.2 Certain Accounting Matters
	 	 	41	 
	Section 10.3 Banking
	 	 	42	 
	Section 10.4 Withholding
	 	 	42	 
	 
	 	 	 	 
	ARTICLE XI
	 
	 	 	 	 
	AMENDMENTS AND MEETINGS

	 
	 	 	 	 
	Section 11.1 Amendments
	 	 	43	 
	Section 11.2 Meetings of the Holders of Securities; Action by Written Consent
	 	 	45	 
	 
	 	 	 	 
	ARTICLE XII

	 
	 	 	 	 
	REPRESENTATIONS OF INSTITUTIONAL TRUSTEE 

AND DELAWARE TRUSTEE

	 
	 	 	 	 
	Section 12.1 Representations and Warranties of Institutional Trustee
	 	 	46	 
	Section 12.2 Representations and Warranties of Delaware Trustee
	 	 	47	 
	 
	 	 	 	 
	ARTICLE XIII

	 
	 	 	 	 
	MISCELLANEOUS

	 
	 	 	 	 
	Section 13.1 Notices
	 	 	48	 
	Section 13.2 Governing Law
	 	 	49	 
	Section 13.3 Submission to Jurisdiction
	 	 	49	 
	Section 13.4 Intention of the Parties
	 	 	50	 
	Section 13.5 Headings
	 	 	50	 
	Section 13.6 Successors and Assigns
	 	 	50	 
	Section 13.7 Partial Enforceability
	 	 	50	 
	Section 13.8 Counterparts
	 	 	50	 
	 
	 	 	 	 
	ANNEXES AND EXHIBITS

	 
	 	 	 	 
	ANNEX I            Terms of Fixed Rate MMCapSSM
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A-1     Form of Capital Securities Certificate
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A-2      Form of Common Security Certificate
	 	 	 	 






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	EXHIBIT B      Form of Transferee Certificate to be
Executed by Transferees Other than QIBs
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT C      Form of Transferee Certificate to be
Executed for QIBs
	 	 	 	 






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AMENDED AND RESTATED DECLARATION OF TRUST




OF



FIRST ALLIANCE CAPITAL TRUST I



July 16, 2001



          AMENDED AND RESTATED DECLARATION OF TRUST (this “Declaration”) dated and effective as
of July 16, 2001, by the Trustees (as defined herein), the Administrators (as defined herein), the
Sponsor (as defined herein) and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (as defined herein) to be issued pursuant to this Declaration;




          WHEREAS, certain of the Trustees, the Administrators and the Sponsor established First
Alliance Capital Trust I (the “Trust”), a statutory business trust under the Business Trust
Act (as defined herein) pursuant to a Declaration of Trust dated as of June 27, 2001 (the
“Original Declaration”), and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on June 27, 2001, 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 (as defined herein) in connection
with the MMCapSSM Transaction;




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




          WHEREAS, all of the Trustees, the Administrators 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 business trust under the Business Trust Act and that this Declaration constitutes the
governing instrument of such statutory business 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 or, if not defined in this Section 1.1, in
the Indenture;








 









 








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




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




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




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




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




          “Additional Interest” has the meaning set forth in Section 3.06 of the Indenture.




          “Administrative Action” has the meaning set forth in paragraph 4(a) of Annex I.




          “Administrators” means each of Robert M. Clements, Gary A. Meeks and Stephen B.
Matheson, solely in such Person’s capacity as Administrator of the Trust created and continued
hereunder and not in such Person’s individual capacity, or such Administrator’s successor in
interest in such capacity, or any successor appointed as herein provided.




          “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities
Act or any successor rule thereunder.




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




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




          (a) a court having jurisdiction in the premises enters a decree or order for relief in respect
of such Person in an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person or for any substantial part of its property, or
orders the winding-up or liquidation of its affairs, and such decree, appointment or order remains
unstayed and in effect for a period of 90 consecutive days; or




          (b) such Person commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, consents to the entry of an order for relief in an
involuntary case under any such law, or consents to the appointment of or taking possession by a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of such
Person of any substantial part of its property, or makes any general assignment for the benefit of
creditors, or fails generally to pay its debts as they become due.








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          “Business Day” means any day other than Saturday, Sunday or any other day on which
banking institutions in New York City or Jacksonville, Florida are permitted or required by any
applicable law to close.




          “Business 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.




          “Capital Securities” has the meaning set forth in Section 6.1(a).




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




          “Capital Treatment Event” has the meaning set forth in paragraph 4(a) of Annex I.




          “Certificate” means any certificate evidencing Securities.




          “Certificate of Trust” means the certificate of trust filed with the Secretary of
State of the State of Delaware with respect to the Trust, as amended and restated from time to
time.




          “Closing Date” has the meaning set forth in the Placement Agreement.




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




          “Commission” means the Securities and Exchange Commission.




          “Common Securities” has the meaning set forth in Section 6.1(a).




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




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




          “Comparable Treasury Issue” has the meaning set forth in paragraph 4(a) of Annex I.




          “Comparable Treasury Price” has the meaning set forth in paragraph 4(a) of Annex I.




          “Corporate Trust Office” means the office of the Institutional Trustee at which the
corporate trust business of the Institutional Trustee shall, at any particular time, be principally
administered, which office shall at all times be located in the United States and at the date of
execution of this Declaration is located at 101 Barclay Street, Floor 21 West, New York, NY 10286.








3









 








          “Covered Person” means: (a) any Administrator, 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 Alliance Capital Partners, LP, a Delaware limited
partnership, 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 10.25% Junior Subordinated Deferrable Interest Debentures due
July 25, 2031 to be issued by the Debenture Issuer under the Indenture.




          “Deferred Interest” means any interest on the Debentures that would have been overdue
and unpaid for more than one Distribution Payment Date but for the imposition of an Extension
Period, and the interest that shall accrue (to the extent that the payment of such interest is
legally enforceable) on such interest at the rate per annum equal to 10.25%, compounded
semi-annually from the date on which such Deferred Interest would otherwise have been due and
payable until paid or made available for payment.




          “Definitive Capital Securities” means any Capital Securities in definitive form issued
by the Trust.




          “Delaware Trustee” has the meaning set forth in Section 4.2.




          “Direct Action” has the meaning set forth in Section 2.8(e).




          “Distribution” means a distribution payable to Holders of Securities in accordance
with Section 5.1.




          “Distribution Payment Date” has the meaning set forth in paragraph 2(b) of Annex I.




          “Event of Default” means the occurrence of an Indenture Event of Default.




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




          “Extension Period” has the meaning set forth in paragraph 2(b) of Annex I.




          “Federal Reserve” means the Board of Governors of the Federal Reserve System.




          “Fiduciary Indemnified Person” shall mean the Institutional Trustee, the Delaware
Trustee, any Affiliate of the Institutional Trustee or the Delaware Trustee, and any officers,
directors, shareholders, members, partners, employees, representatives, custodians, nominees or
agents of the Institutional Trustee and the Delaware Trustee.




          “Fiscal Year” has the meaning set forth in Section 10.1


4









 







           “Guarantee” means the guarantee agreement to be dated as of July 16, 2001, of the
Sponsor in respect of the Capital Securities.




          “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 Business Trust Act.




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




          “Indenture” means the Indenture dated as of July 16, 2001, among the Debenture Issuer
and the Debenture Trustee, and any indenture supplemental thereto pursuant to which the Debentures
are to be issued.




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




          “Institutional Trustee” means the Trustee meeting the eligibility requirements set
forth in Section 4.3.




          “Interest” means any interest due on the Debentures, including any Deferred Interest
and Defaulted Interest (as each such term is defined in the Indenture).




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




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




          “Investment Company Event” has the meaning set forth in paragraph 4(a) of Annex I.




          “Legal Action” has the meaning set forth in Section 2.8(e).




          “Liquidation” has the meaning set forth in paragraph 3 of Annex I.




          “Liquidation Distribution” has the meaning set forth in paragraph 3 of Annex I.




          “Majority in liquidation amount of the Securities” means 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 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.




          “OTS” has the meaning set forth in paragraph 3 of Annex I.








5









 








          “Officers’ Certificates” 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 it in this Declaration shall include:




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




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




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




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




          “Paying Agent” has the meaning specified in Section 6.2.




          “Payment Amount” has the meaning set forth in Section 5.1.




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




          “Placement Agreement” means the Placement Agreement relating to the offering and sale
of Capital Securities.




          “PORTAL” has the meaning set forth in Section 2.6(a)(i).




          “Primary Treasury Dealer” has the meaning set forth in paragraph 4(a) of Annex I.




          “Property Account” has the meaning set forth in Section 2.8(c).




          “Pro Rata” has the meaning set forth in paragraph 8 of Annex I.




          “QIB” means a “qualified institutional buyer” as defined under Rule 144A.




          “Quorum” means a majority of the Administrators or, if there are only two
Administrators, both of them.




          “Quotation Agent” has the meaning set forth in paragraph 4(a) of Annex I.




          “Redemption/Distribution Notice” has the meaning set forth in paragraph 4(e) of Annex
I.




          “Redemption Price” has the meaning set forth in paragraph 4(a) of Annex I.








6









 








          “Registrar” has the meaning set forth in Section 6.2.




          “Reference Treasury Dealer” has the meaning set forth in paragraph 4(a) of Annex I.




          “Reference Treasury Dealer Quotations” has the meaning set forth in paragraph 4(a) of
Annex I.




          “Relevant Trustee” has the meaning set forth in Section 4.7(a).




          “Remaining Life” has the meaning set forth in paragraph 4(a) of Annex I.




          “Responsible Officer” means, with respect to the Institutional Trustee, any officer
within the Corporate Trust Office of the Institutional Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above designated officers
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.




          “Restricted Securities Legend” has the meaning set forth in Section 8.2(c).




          “Rule 144A” means Rule 144A under the Securities Act.




          “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.




          “Sponsor” means Alliance Capital Partners, LP, a Delaware limited partnership, or any
successor entity in a merger, consolidation or amalgamation that is a U.S. Person, in its capacity
as sponsor of the Trust.




          “Successor Delaware Trustee” has the meaning set forth in Section 4.7(a).




          “Successor Entity” has the meaning set forth in Section 2.15(b).




          “Successor Institutional Trustee” has the meaning set forth in Section 4.7(a).




          “Successor Securities” has the meaning set forth in Section 2.15(b).




          “Super Majority” has the meaning set forth in paragraph 5(b) of Annex I.




          “Tax Event” has the meaning set forth in paragraph 4(a) of Annex I.








7









 








          “10% in liquidation amount of the Securities” means 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 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.




          “Transfer Agent” has the meaning set forth in Section 6.2.




          “Treasury Rate” has the meaning set forth in paragraph 4(a) of Annex I.




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




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.




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




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




ARTICLE II




ORGANIZATION



          Section 2.1 Name. The Trust is named “First Alliance Capital Trust I,” as such name may be modified from time to
time by the Administrators following written notice to the Holders of the Securities. The Trust’s
activities may be conducted under the name of the Trust or any other name deemed advisable by the
Administrators.




          Section 2.2 Office. The address of the principal office of the Trust, which shall be in a State of the United States
or the District of Columbia, is c/o Alliance Capital Partners, LP, 8100 Nations Way, Jacksonville,
Florida 32256. On ten Business Days written notice to the Holders of the Securities, the
Administrators may designate another principal office, which shall be in a State of the United
States or the District of Columbia.







8









 








          Section 2.3 Purpose. The exclusive purposes and functions of the Trust are (a) to issue and sell the Securities
representing undivided beneficial interests in the assets of the Trust, (b) to invest the gross
proceeds from such sale to acquire the Debentures and (c) except as otherwise limited herein, to
engage in only those other activities incidental thereto that are deemed necessary or advisable by
the Institutional Trustee, including, without limitation, those activities specified in this
Declaration. 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 2.4 Authority. Except as specifically provided in this Declaration, the Institutional Trustee shall have
exclusive and complete authority to carry out the purposes of the Trust. An action taken by a
Trustee on behalf of the Trust and 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. The Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Trust and are not intended to be trustees
or fiduciaries with respect to the Trust or the Holders. The Institutional Trustee shall have the
right, but shall not be obligated except as provided in Section 2.6, to perform those duties
assigned to the Administrators.




          Section 2.5 Title to Property of the Trust. Except as provided in Section 2.8 with respect to the Debentures and the Property 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 2.6 Powers and Duties of the Trustees and the Administrators.




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




          (i) Each Administrator shall have the power and authority to act on behalf of
the Trust with respect to the following matters:




          (A) the issuance and sale of the Securities;




          (B) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements as may be



9









 







necessary or desirable in connection with the purposes and function of
the Trust, including agreements with the Paying Agent;




          (C) ensuring compliance with the Securities Act, applicable state
securities or blue sky laws;




          (D) if and at such time determined by the Sponsor at the request of the
Holders, assisting in the designation of the Capital Securities for trading
in the Private Offering, Resales and Trading through the Automatic Linkages
(“PORTAL”) system;




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




          (F) the appointment of a Paying Agent, Transfer Agent and Registrar in
accordance with this Declaration;




          (G) execution and delivery of the Securities in accordance with this
Declaration;




          (H) execution and delivery of closing certificates, pursuant to the
Placement Agreement and the application for a taxpayer identification
number;




          (I) unless otherwise determined by the Institutional Trustee or the
Holders of a Majority in liquidation amount of the Securities or as
otherwise required by the Business Trust Act, to execute on behalf of the
Trust (either acting alone or together with any or all of the
Administrators) any documents that the Administrators have the power to
execute pursuant to this Declaration;




          (J) the taking of any action incidental to the foregoing as the
Institutional Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Declaration for the benefit of
the Holders (without consideration of the effect of any such action on any
particular Holder);




          (K) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common
Securities as to such actions and applicable record dates; and




          (L) to duly prepare and file all applicable tax returns and tax
information reports that are required to be filed with respect to the Trust
on behalf of the Trust.



10









 






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




          (A) the establishment of the Property Account;




          (B) the receipt of the Debentures;




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




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




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




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




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




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




          (I) after any Event of Default (provided that such Event of Default is
not by or with respect to the Institutional Trustee) the taking of any
action incidental to the foregoing as the Institutional Trustee may from
time to time determine is necessary or advisable to give effect to the terms
of this Declaration and protect and conserve the Trust Property for the
benefit of the Holders (without consideration of the effect of any such
action on any particular Holder); and




          (J) 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 business 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.




          (iii) The Institutional Trustee shall have the power and authority to act on
behalf of the Trust with respect to any of the duties, liabilities, powers or the
authority of the Administrators set forth in Section 2.6(a)(i)(E) and (F) herein



11









 







but shall not have a duty to do any such act unless specifically requested to
do so in writing by the Sponsor, and shall then be fully protected in acting
pursuant to such written request; and in the event of a conflict between the action
of the Administrators and the action of the Institutional Trustee, the action of the
Institutional Trustee shall prevail.



               (b) So long as this Declaration remains in effect, the Trust (or the Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby. In particular, neither the
Trustees nor the Administrators may cause the Trust to (i) acquire any investments or engage in any
activities not authorized by this Declaration, (ii) sell, assign, transfer, exchange, mortgage,
pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including
to Holders, except as expressly provided herein, (iii) take any action that would cause the Trust
to fail or cease to qualify as a “grantor trust” for United States federal income tax purposes,
(iv) incur any indebtedness for borrowed money or issue any other debt or (v) take or consent to
any action that would result in the placement of a lien on any of the Trust Property. The
Institutional Trustee shall, at the sole cost and expense of the Trust, defend all claims and
demands of all Persons at any time claiming any lien on any of the Trust Property adverse to the
interest of the Trust or the Holders in their capacity as Holders.



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




          (i) the taking of any action necessary to obtain an exemption from the
Securities Act;




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




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




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



               (d) Notwithstanding anything herein to the contrary, the Administrators, the Institutional
Trustee and the Holders of a Majority in liquidation amount of the Common Securities are authorized
and directed to conduct the affairs of the Trust and to



12









 




operate the Trust so that (i) the Trust will not be deemed to be an “investment company”
required to be registered under the Investment Company Act, and (ii) the Trust will not fail to be
classified as a grantor trust for United States federal income tax purposes and (iii) the Trust
will not take any action inconsistent with the treatment of the Debentures as indebtedness of the
Debenture Issuer for United States federal income tax purposes. In this connection, the
Institutional Trustee and the Holders of a Majority in liquidation amount of the Common Securities
are authorized to take any action, not inconsistent with applicable laws, the Original Declaration
or this Declaration, as amended from time to time, that each of the Institutional Trustee and such
Holders determine in their discretion to be necessary or desirable for such purposes, even if such
action adversely affects the interests of the Holders of the Capital Securities.




               (e) All expenses incurred by the Administrators or the Trustees pursuant to this Section 2.6
shall be reimbursed by the Sponsor, and the Trustees shall have no obligations with respect to such
expenses.



               (f) The assets of the Trust shall consist of the Trust Property.



               (g) Legal title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by the Institutional Trustee
for the benefit of the Trust and neither the Administrators nor the Holders in accordance with this
Declaration.



               (h) If the Institutional Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Declaration and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Institutional Trustee or to such Holder, then
and in every such case the Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Institutional Trustee and the Holders
shall continue as though no such proceeding had been instituted.



          Section 2.7 Prohibition of Actions by the Trust and the Trustees.




          (a) The Trust shall not, and the Institutional Trustee and the Administrators 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 and the Institutional Trustee, and the Administrators shall not,
cause the Trust to:





          (i) invest any proceeds received by the Trust from holding the Debentures, but
shall distribute all such proceeds to Holders of the 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;



13









 






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




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




          (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 (including Annex I), (A)
direct the time, method and place of exercising any trust or power conferred upon
the Debenture Trustee with respect to the Debentures, (B) waive any past default
that is waivable under the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and payable, or
(D) consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required unless the Trust shall have received
an opinion of counsel experienced in such matters to the effect that such
modification will not cause the Trust to cease to be classified as a grantor trust
for United States federal income tax purposes.



          Section 2.8 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 Trust. 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 4.7. 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 Administrators or to the Delaware Trustee.



               (c) The Institutional Trustee shall:




          (i) establish and maintain a segregated non-interest bearing trust account (the
“Property Account”) in the United States (as defined in Treasury Regulations section
301.7701-7), in the name of and under the exclusive control of the Institutional
Trustee, and maintained in the Institutional Trustee’s trust department, 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 Property Account and make payments to the Holders of the Capital Securities and
Holders of the Common Securities from the Property Account in accordance with
Section 5.1. Funds in the Property Account shall be held uninvested until disbursed
in accordance with this Declaration;




          (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



14









 






          (iii) upon written notice of distribution issued by the Administrators 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
Holders of Securities upon the occurrence of certain 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) The Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate, resort
to legal action with respect to, or otherwise adjust claims or demands of or against, the Trust (a
“Legal Action”) which arises out of or in connection with an Event of 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;
provided, however, that if an Event of Default has occurred and is continuing and
such event is attributable to the failure of the Debenture Issuer to pay interest 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 the Capital Securities may directly institute
a proceeding for enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a “Direct Action”) on or after the respective due date specified in the
Debentures. In connection with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of the Capital Securities to the extent
of any payment made by the Debenture Issuer to such Holder of the Capital Securities in such Direct
Action; provided, however, that a Holder of the Capital Securities may exercise
such right of subrogation only so long as an Event of Default with respect to the Capital
Securities has occurred and is continuing.



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




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




          (ii) a Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.7.



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



               The Institutional Trustee must exercise the powers set forth in this Section 2.8 in a manner
that is consistent with the purposes and functions of the Trust set out in Section 2.3, and



15









 




the Institutional Trustee shall not take any action that is inconsistent with the purposes and
functions of the Trust set out in Section 2.3.




          Section 2.9 Certain Duties and Responsibilities of the Trustees and Administrators.




               (a) The Institutional Trustee, before the occurrence of any Event of Default and after the
curing of all Events of Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Declaration and no implied covenants shall be read into this
Declaration against the Institutional Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 6.7), 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 their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.



               (b) The duties and responsibilities of the Trustees and the Administrators shall be as
provided by this Declaration and, in the case of the Institutional Trustee, by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Declaration shall require the Trustees or
Administrators to expend or risk their own funds or otherwise incur any financial liability in the
performance of any of their duties hereunder, or in the exercise of any of their rights or powers,
if they shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Declaration relating to the
conduct or affecting the liability of or affording protection to the Trustees or Administrators
shall be subject to the provisions of this Article. Nothing in this Declaration shall be construed
to release an Administrator or Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct. To the extent that, at law or in equity,
a Trustee or an Administrator has duties and liabilities relating to the Trust or to the Holders,
such Trustee or Administrator shall not be liable to the Trust or to any Holder for such Trustee’s
or Administrator’s 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 the Administrators
or the Trustees otherwise existing at law or in equity, are agreed by the Sponsor and the Holders
to replace such other duties and liabilities of the Administrators or the Trustees.



               (c) All payments made by the Institutional Trustee or a Paying Agent in respect of the
Securities shall be made only from the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the
Institutional Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for distribution to it as herein
provided and that the Trustees and the Administrators are not personally liable to it for any
amount distributable in respect of any Security or for any other liability in respect of any
Security, This Section 2.9(c) does not limit the liability of the Trustees expressly set forth
elsewhere in this Declaration or, in the case of the Institutional Trustee, in the Trust Indenture
Act.



16









 





               (d) No provision of this Declaration shall be construed to relieve the Institutional Trustee
from liability with respect to matters that are within the authority of the Institutional Trustee
under this Declaration for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that




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




          (ii) 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 Capital
Securities or the Common Securities, as applicable, 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;




          (iii) the Institutional Trustee’s sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Property 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;




          (iv) the Institutional Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree in writing with the Sponsor;
and money held by the Institutional Trustee need not be segregated from other funds
held by it except in relation to the Property Account maintained by the
Institutional Trustee pursuant to Section 2.8(c)(i) and except to the extent
otherwise required by law; and




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



          Section 2.10 Certain Rights of Institutional Trustee. Subject to the provisions of Section 2.9:




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



17









 





               (b) if (i) in performing its duties under this Declaration, the Institutional Trustee is
required to decide between alternative courses of action, (ii) in construing any of the provisions
of this Declaration, the Institutional Trustee finds the same ambiguous or inconsistent with any
other provisions contained herein, or (iii) the Institutional Trustee is unsure of the application
of any provision of this Declaration, then, except as to any matter as to which the Holders of
Capital Securities are entitled to vote under the terms of this Declaration, the Institutional
Trustee may deliver a notice to the Sponsor requesting the Sponsor’s opinion as to the course of
action to be taken and the Institutional Trustee shall take such action, or refrain from taking
such action, as the Institutional Trustee in its sole discretion shall deem advisable and in the
best interests of the Holders, in which event the Institutional Trustee shall have no liability
except for its own negligence or willful misconduct;



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



               (d) whenever in the administration of this Declaration, the Institutional Trustee shall deem
it desirable that a matter be proved or established before undertaking, 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 as to factual matters which, upon receipt of such request, shall be promptly
delivered by the Sponsor or the Administrators;



               (e) 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 reregistration thereof;



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



               (g) 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 of the Holders pursuant
to this Declaration, unless such Holders shall have offered to the Institutional Trustee security
or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction; provided, that nothing
contained in this Section 2.10(g) shall be taken to relieve the Institutional Trustee, upon the
occurrence of an Event of Default that has not been cured or waived, of its obligation to exercise
the rights and powers vested in it by this Declaration;



               (h) 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, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other
paper or document, unless requested in writing to do so by one or more



18









 




Holders, but the Institutional Trustee may make such further inquiry or investigation into
such facts or matters as it may see fit;




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



               (j) 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
Common Securities and the Capital Securities, which instructions may be given only by the Holders
of the same proportion in liquidation amount of the Common Securities and the Capital Securities as
would be entitled to direct the Institutional Trustee under the terms of the Common Securities and
the Capital Securities in respect of such remedy, right or action, (ii) may refrain from enforcing
such remedy or right or taking such other action until such instructions are received, and (iii)
shall be fully protected in acting in accordance with such instructions;



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



               (l) when the Institutional Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of administration under any
bankruptcy law or law relating to creditors rights generally;



               (m) the Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee obtains actual knowledge of such event or
the Institutional Trustee receives written notice of such event from any Holder;



               (n) 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; and



               (o) 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



19









 




obligation. No permissive power or authority available to the Institutional Trustee shall be
construed to be a duty.




          Section 2.11 Delaware Trustee. Notwithstanding any other provision of this Declaration other than Section 4.2, the Delaware
Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of
the duties and responsibilities of any of the Trustees or the Administrators described in this
Declaration (except as may be required under the Business Trust Act). Except as set forth in
Section 4.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling
the requirements of § 3807 of the Business Trust Act.




          Section 2.12 Execution of Documents. Unless otherwise determined in writing by the Institutional Trustee, and except as otherwise
required by the Business Trust Act, the Institutional Trustee, or any one or more of the
Administrators, as the case may be, is authorized to execute on behalf of the Trust any documents
that the Trustees or the Administrators, as the case may be, have the power and authority to
execute pursuant to Section 2.6.




          Section 2.13 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, the Debentures or the Securities.




          Section 2.14 Duration of Trust. The Trust, unless dissolved pursuant to the provisions of Article VII hereof, shall have
existence for thirty-five (35) years from the Closing Date.




          Section 2.15 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 Person, except as described in this Section 2.15(b) and (c) and except with respect to the
distribution of Debentures to Holders of Securities pursuant to Section 7.1(a)(iv) of the
Declaration or Section 4 of Annex I.




               (b) The Trust may, with the consent of the Institutional Trustee (which consent will not be
unreasonably withheld) and without the consent of the Delaware Trustee or the Holders of the
Capital Securities, consolidate, amalgamate, merge with or into, or be replaced by a trust
organized as such under the laws of any State; provided, that:




          (i) if the Trust is not the survivor, 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 Securities (the “Successor Securities”)
so that the Successor Securities rank the same as the Securities rank with



20









 







respect to. Distributions and payments upon Liquidation, redemption
and otherwise;




          (ii) the Sponsor expressly appoints, as the Holder of the Debentures, a trustee
of the Successor Entity that possesses the same powers and duties as the
Institutional Trustee;




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




          (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, if the Capital Securities are
then rated;




          (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 Successor Entity as a
result of such merger, consolidation, amalgamation or replacement);




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




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




          (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
Successor Entity);




          (B) following such merger, consolidation, amalgamation or replacement,
neither the Trust nor the Successor Entity will be required to




          (C) register as an Investment Company; and 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;



21









 






          (viii) the Sponsor guarantees the obligations of such Successor Entity under
the Successor Securities at least to the extent provided by the Guarantee, the
Debentures and this Declaration; and




          (ix) prior to such merger, consolidation, amalgamation or replacement, the
Institutional Trustee shall have received an Officers’ Certificate of the
Administrators and an opinion of counsel, each to the effect that all conditions
precedent of this paragraph (b) to such transaction have been satisfied.



               (c) Notwithstanding Section 2.15(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 Person or permit any other Person to consolidate, amalgamate, merge with or
into, or replace it if such consolidation, amalgamation, merger or replacement would cause the
Trust or Successor Entity to be classified as other than a grantor trust for United States federal
income tax purposes.



ARTICLE III




SPONSOR



          Section 3.1 Sponsor’s Purchase of Common Securities. On the Closing Date, the Sponsor will purchase all of the Common Securities issued by the Trust,
in an amount at least equal to 3% of the capital of the Trust, at the same time as the Capital
Securities are sold.




          Section 3.2 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, or direct the Administrators to engage in, the
following activities:




               (a) to determine the States in which to take appropriate action to qualify or register for
sale of 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;



               (b) to prepare for filing and request the Administrators to cause the filing by the Trust, as
may be appropriate, of an application to the PORTAL system, for listing or quotation upon notice of
issuance of any Capital Securities, if required; and



               (c) to negotiate the terms of and/or execute on behalf of the Trust, the Placement Agreement
and other related agreements providing for the sale of the Capital Securities.



22









 





ARTICLE IV




TRUSTEES AND ADMINISTRATORS



          Section 4.1 Number of Trustees. The number of Trustees initially shall be two, 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 of the Holder of a Majority in liquidation amount of the Common Securities voting
as a class at a meeting of the Holder of the Common Securities; provided, however,
that there shall be a Delaware Trustee if required by Section 4.2; and there shall always be one
Trustee who shall be the Institutional Trustee, and such Trustee may also serve as Delaware Trustee
if it meets the applicable requirements, in which case Section 2.11 shall have no application to
such entity in its capacity as Institutional Trustee.



          Section 4.2 Delaware Trustee. If required by the Business Trust Act, one Trustee (the “Delaware Trustee”) shall be:




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



               (b) if not a natural person, an entity which is organized under the laws of the United States
or any State thereof or the District of Columbia, has its principal place of business in the State
of Delaware, and otherwise meets the requirements of applicable law, including §3807 of the
Business Trust Act.



          Section 4.3 Institutional Trustee; Eligibility. (a) There shall at all times be one Trustee which shall act as Institutional Trustee which
shall:





          (i) not be an Affiliate of the Sponsor;




          (ii) not offer or provide credit or credit enhancement to the Trust; and




          (iii) be a banking corporation organized and doing business under the laws of
the United States of America or any State thereof or of the District of Columbia and
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 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 4.3(a)(iii), 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.



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               (b) If at any time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner and with the
effect set forth in Section 4.7(a).



               (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 shall either eliminate
such interest or resign, to the extent and in the manner provided by, and subject to this
Declaration.



               (d) The initial Institutional Trustee shall be The Bank of New York.



          Section 4.4 Certain Qualifications of the Delaware Trustee Generally. The Delaware Trustee shall be a U.S. Person and 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 4.5 Administrators. Each Administrator shall be a U.S. Person. The initial Administrators shall be Robert M.
Clements, Gary A. Meeks and Stephen B. Matheson. There shall at all times be at least one
Administrator.




          Except where a requirement for action by a specific number of Administrators is expressly set
forth in this Declaration and except with respect to any action the taking of which is the subject
of a meeting of the Administrators, any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may be exercised by, or with
the consent of, any one such Administrator.




          Section 4.6 Initial Delaware Trustee. The initial Delaware Trustee shall be The Bank of New York (Delaware).




          Section 4.7 Appointment Removal and Resignation of Trustees and Administrators.




               (a) No resignation or removal of any Trustee (the “Relevant Trustee”) and no appointment of a
successor Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable requirements of this Section
4.7.



          Subject to the immediately preceding paragraph, a Relevant Trustee may resign at any time by
giving written notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee. Upon the resignation of the Institutional Trustee, the Institutional Trustee
shall appoint a successor by requesting from at least three Persons meeting the eligibility
requirements, its expenses and charges to serve as the successor Institutional Trustee on a form
provided by the Administrators, and selecting the Person who agrees to the lowest expense and
charges (the “Successor Institutional Trustee”). If the instrument of acceptance by the successor
Relevant Trustee required by Section 4.7 shall not have been delivered to the Relevant Trustee
within 60 days after the giving of such notice of resignation or delivery of the instrument of
removal, the Relevant Trustee may petition, at the expense of the Trust, any Federal, State or
District of Columbia court of competent jurisdiction for the appointment of a successor Relevant
Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper,






24









 







appoint a Relevant Trustee. The Institutional Trustee shall have no liability for the
selection of such successor pursuant to this Section 4.7.




          Unless an Event of Default shall have occurred and be continuing, any Trustee may be removed
at any time by an act of the Holder of a majority in liquidation amount of the Common Securities.
If any Trustee shall be so removed, the Holders of the Common Securities, by act of the Holders of
a Majority in liquidation amount of the Common Securities then outstanding delivered to the
Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of this Section 4.7. If an Event
of Default shall have occurred and be continuing, the Institutional Trustee or the Delaware
Trustee, or both of them, may be removed by the act of the Holders of a Majority in liquidation
amount of the Capital Securities, delivered to the Relevant Trustee (in its individual capacity and
on behalf of the Trust). If any Trustee shall be so removed, the Holders of Capital Securities, by
act of the Holders of a Majority in liquidation amount of the Capital Securities then outstanding
delivered to the Relevant Trustee, shall promptly appoint a successor Relevant Trustee or Trustees,
and such successor Trustee shall comply with the applicable requirements of this Section 4.7. If
no successor Relevant Trustee shall have been so appointed by the Holders of a Majority in
liquidation amount of the Capital Securities and accepted appointment in the manner required by
this Section 4.7, within 30 days after delivery of an instrument of removal, the Relevant Trustee
or any Holder who has been a Holder of the Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any Federal, State or District of Columbia
court of competent jurisdiction for the appointment of a successor Relevant Trustee. Such court
may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a successor
Relevant Trustee or Trustees.




          The Institutional Trustee shall give notice of each resignation and each removal of a Trustee
and each appointment of a successor Trustee to all Holders in the manner provided in Section 4.7(b)
and shall give notice to the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Institutional Trustee.




          Notwithstanding the foregoing or any other provision of this Declaration, in the event a
Delaware Trustee who is a natural person dies or is adjudged by a court to have become incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by
the Institutional Trustee following the procedures in this Section 4.7 (with the successor being a
Person who satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the “Successor Delaware Trustee”).




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



25









 




such Relevant Trustees co-trustees and upon the execution and delivery of such amendment the
resignation or removal of the retiring Relevant Trustee shall become effective to the extent
provided therein and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant Trustee such retiring
Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all
Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder
with respect to the Securities and the Trust, subject to the payment of all unpaid fees, expenses
and indemnities of such Retiring Relevant Trustee.




               (c) 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.



               (d) The Holders of the Capital Securities will have no right to vote to appoint, remove or
replace the Administrators, which voting rights are vested exclusively in the Holders of the Common
Securities.



               (e) Any successor Delaware Trustee shall file an amendment to the Certificate of Trust with
the Delaware Secretary of State identifying the name and principal place of business of such
Delaware Trustee in the State of Delaware.



          Section 4.8 Vacancies Among Trustees. If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced
pursuant to Section 4.1, or if the number of Trustees is increased pursuant to Section 4.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by the Trustees or, if
there are more than two, a majority of the Trustees shall be conclusive evidence of the existence
of such vacancy. The vacancy shall be filled with a Trustee appointed in accordance with Section
4.7.




          Section 4.9 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence
or incapacity to perform the duties of a Trustee shall not operate to dissolve, terminate or annul
the Trust or terminate this Declaration. Whenever a vacancy in the number of Trustees shall occur,
until such vacancy is filled by the appointment of a Trustee in accordance with Section 4.7, the
Institutional Trustee shall have all the powers granted to the Trustees and shall discharge all the
duties imposed upon the Trustees by this Declaration.




          Section 4.10 Meetings of the Trustees and the Administrators. Meetings of the Trustees or the Administrators shall be held from time to time upon the call of
any Trustee or Administrator, as applicable. Regular meetings of the Trustees and the
Administrators, respectively, may be in person in the United States or by telephone, at a place (if
applicable) and time fixed by resolution of the Trustees or the Administrators, as applicable.
Notice of any in-person meetings of the Trustees or the Administrators 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 Trustees or the
Administrators 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






26









 







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 Trustee or an
Administrator, as the case may be, at a meeting shall constitute a waiver of notice of such meeting
except where a Trustee or an Administrator, as the case may be, 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
Trustees or the Administrators, as the case may be, may be taken at a meeting by vote of a majority
of the Trustees or the Administrators 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 Trustees or the Administrators. Meetings of the Trustees
and the Administrators together shall be held from the time to time upon the call of any Trustee or
Administrator.




          Section 4.11 Delegation of Power. (a) Any Trustee or any Administrator, as the case may be, may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21 that is a U.S. Person
his or her power for the purpose of executing any documents contemplated in Section 2.6; and




               (b) the Trustees shall have power to delegate from time to time to such of their number or to
any officer of the Trust that is a U.S. Person, the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Trustees or otherwise as the
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 4.12 Conversion, Consolidation or Succession to Business. Any Person 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 Person 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 Person 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 Person shall be otherwise qualified and eligible under this
Article, provided, further, that such Person shall file an amendment to the
Certificate of Trust with the Delaware Secretary of State as contemplated in Section 4.7(e) without
the execution or filing of any paper or any further act on the part of any of the parties hereto.




ARTICLE V




DISTRIBUTIONS



          Section 5.1 Distributions. Holders shall receive Distributions 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 any Additional Interest or
Deferred Interest) 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
the extent funds are available in the Property






27









 







Account for that purpose, to make a distribution (a “Distribution”) of the Payment Amount to
Holders.




ARTICLE VI




ISSUANCE OF SECURITIES



          Section 6.1 General Provisions Regarding Securities.




               (a) The Administrators shall on behalf of the Trust issue one series of capital securities
substantially in the form of Exhibit A-1 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
series 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. The Capital Securities rank pari passu and payment thereon shall be made Pro
Rata with the Common Securities except that, where an Event of Default has occurred and is
continuing, 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.



               (b) The Certificates shall be signed on behalf of the Trust by one or more Administrators.
Such signature shall be the facsimile or manual signature of any Administrator. In case any
Administrator of the Trust who shall have signed any of the Securities shall cease to be such
Administrator 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 Administrator; and any Certificate may be signed on behalf of the Trust by such person who,
at the actual date of execution of such Security, shall be an Administrator of the Trust, although
at the date of the execution and delivery of the Declaration any such person was not such an
Administrator. A Capital Security shall not be valid until authenticated by the manual signature
of an Authorized Officer of the Institutional Trustee. Such signature shall be conclusive evidence
that the Capital Security has been authenticated under this Declaration. Upon written order of the
Trust signed by one Administrator, the Institutional Trustee shall authenticate the Capital
Securities for original issue. The Institutional Trustee may appoint an authenticating agent that
is a U.S. Person acceptable to the Trust to authenticate the Capital Securities. A Common Security
need not be so authenticated.



               (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 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 and the Guarantee.



28









 





          Section 6.2 Paying Agent, Transfer Agent and Registrar. The Trust shall maintain in New York, New York, an office or agency where the Securities may be
presented for payment (the “Paying Agent”), and an office or agency where Securities may be
presented for registration of transfer or exchange (the “Transfer Agent”). The Trust shall keep or
cause to be kept at such office or agency a register for the purpose of registering Securities and
transfers and exchanges of Securities, such register to be held by a registrar (the “Registrar”).
The Administrators may appoint the Paying Agent, the Registrar and the Transfer Agent, and may
appoint one or more additional Paying Agents or one or more co-Registrars, or one or more
co-Transfer Agents in such other locations as it shall determine. The term “Paying Agent” includes
any additional paying agent, the term “Registrar” includes any additional registrar or co-Registrar
and the term “Transfer Agent” includes any additional transfer agent. The Administrators may
change any Paying Agent, Transfer Agent or Registrar at any time without prior notice to any
Holder. The Administrators shall notify the Institutional Trustee of the name and address of any
Paying Agent, Transfer Agent and Registrar not a party to this Declaration. The Administrators
hereby initially appoint the Institutional Trustee to act as Paying Agent, Transfer Agent and
Registrar for the Capital Securities and the Common Securities. The Institutional Trustee or any
of its Affiliates in the United States may act as Paying Agent, Transfer Agent or Registrar.




          Section 6.3 Form and Dating. The Capital Securities and the Institutional Trustee’s certificate of authentication thereon
shall be substantially in the form of Exhibit A-1, and the Common Securities shall be substantially
in the form of Exhibit A-2, each of which is hereby incorporated in and expressly made a part of
this Declaration. Certificates may be typed, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrators, as conclusively evidenced by
their execution thereof. The Securities may have letters, numbers, notations or other marks of
identification or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage (provided, that any such
notation, legend or endorsement is in a form acceptable to the Sponsor). The Trust at the
direction of the Sponsor shall furnish any such legend not contained in Exhibit A-1 to the
Institutional Trustee in writing. Each Capital Security shall be dated the date of its
authentication. The terms and provisions of the Securities set forth in Annex I and the forms of
Securities set forth in Exhibits A-1 and A-2 are part of the terms of this Declaration and to the
extent applicable, the Institutional Trustee, the Delaware Trustee, the Administrators and the
Sponsor, by their execution and delivery of this Declaration, expressly agree to such terms and
provisions and to be bound thereby. Capital Securities will be issued only in blocks having a
stated liquidation amount of not less than $1,000.




          The Capital Securities are being offered and sold by the Trust pursuant to the Placement
Agreement in definitive form, registered in the name of the Holder thereof, without coupons with
the Restricted Securities Legend.




          Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates. If:




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



29









 





               (b) there shall be delivered to the Registrar, the Administrators and the Institutional
Trustee 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,
an Administrator on behalf of the Trust shall execute (and in the case of a Capital Security
Certificate, the Institutional Trustee shall authenticate) 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 6.4, the
Registrar or the Administrators 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.



          Section 6.5 Temporary Securities. Until definitive Securities are ready for delivery, the Administrators may prepare and, in the
case of the Capital Securities, the Institutional Trustee shall authenticate, temporary Securities.
Temporary Securities shall be substantially in form of definitive Securities but may have
variations that the Administrators consider appropriate for temporary Securities. Without
unreasonable delay, the Administrators shall prepare and, in the case of the Capital Securities,
the Institutional Trustee shall authenticate definitive Securities in exchange for temporary
Securities.




          Section 6.6 Cancellation. The Administrators at any time may deliver Securities to the Institutional Trustee for
cancellation. The Registrar shall forward to the Institutional Trustee any Securities surrendered
to it for registration of transfer, redemption or payment. The Institutional Trustee shall
promptly cancel all Securities surrendered for registration of transfer, payment, replacement or
cancellation and shall dispose of such canceled Securities as the Administrators direct. The
Administrators may not issue new Securities to replace Securities that have been paid or that have
been delivered to the Institutional Trustee for cancellation.




          Section 6.7 Rights of Holders; Waivers of Past Defaults.




               (a) The legal title to the Trust Property is vested exclusively in the Institutional Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders shall not have any right
or title therein other than the undivided beneficial interest in the assets of the Trust conferred
by their Securities and they shall have no right to call for any partition or division of property,
profits or rights of the Trust except as described below. The Securities shall be personal
property giving only the rights specifically set forth therein and in this Declaration. The
Securities shall have no preemptive or similar rights and when issued and delivered to Holders
against payment of the purchase price therefor will be fully paid and nonassessable by the Trust.



          (b) For so long as any Capital Securities remain outstanding, if, upon an Indenture Event of
Default, the Debenture Trustee fails or the holders of not less than 25% in principal amount of the
outstanding Debentures fail to declare the principal of all of the Debentures to be immediately due
and payable, the Holders of at least a majority in liquidation




30









 







amount of the Capital Securities
then outstanding shall have the right to make such declaration by a notice in writing to the
Institutional Trustee, the Sponsor and the Debenture Trustee.




          At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, if the Institutional Trustee, subject to the provisions
hereof, fails to annul any such declaration and waive such default, the Holders of at least a
majority in liquidation amount of the Capital Securities, by written notice to the Institutional
Trustee, the Sponsor and the Debenture Trustee, may rescind and annul such declaration and its
consequences if:





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




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




          (B) any accrued Deferred Interest on all of the Debentures,




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




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




          (ii) all Events of Default with respect to the Debentures, other than the
non-payment of the principal of the Debentures that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.07 of the
Indenture.



          The Holders of at least a majority in liquidation amount of the Capital Securities may, on
behalf of the Holders of all the Capital Securities, waive any past default or Event of Default,
except a default or Event of Default in the payment of principal or interest (unless such default
or Event of Default has been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default or Event of Default in respect of a covenant or provision that under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding Debenture. No such
rescission shall affect any subsequent default or impair any right consequent thereon.




          Upon receipt by the Institutional Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Capital Securities a record date
shall be established for determining Holders of outstanding Capital Securities




31









 







entitled to join in
such notice, which record date shall be at the close of business on the day the Institutional
Trustee receives such notice. The Holders on such record date, or their duly designated proxies,
and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that, unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day that is 90 days after such
record date, such notice of declaration of acceleration, or rescission and annulment, as the case
may be, shall automatically and without further action by any Holder be canceled and of no further
effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a written notice that
has been canceled pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 6.7.




               (c) Except as otherwise provided in paragraphs (a) and (b) of this Section 6.7, the Holders of
at least a majority in liquidation amount of the Capital Securities may, on behalf of the Holders
of all the Capital Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and any default or
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.



ARTICLE VII




DISSOLUTION AND TERMINATION OF TRUST



          Section 7.1 Dissolution and Termination of Trust. (a) The Trust shall dissolve on the first to occur of :





          (i) unless earlier dissolved, on July 25, 2036, the expiration of the term of
the Trust;




          (ii) a Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;




          (iii) (other than in connection with a merger, consolidation or similar
transaction not prohibited by the Indenture, this Declaration or the Guarantee, as
the case may be) the filing of a certificate of dissolution or its equivalent with
respect to the Sponsor or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a reinstatement thereof;




          (iv) the distribution of the Debentures to the Holders of the Securities, upon
exercise of the right of the Holders of all of the outstanding Common Securities to
dissolve the Trust as provided in Annex I hereto;




          (v) the entry of a decree of judicial dissolution of any Holder of the Common
Securities, the Sponsor, the Trust or the Debenture Issuer;



32









 






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




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



               (b) As soon as is practicable after the occurrence of an event referred to in Section 7.1(a),
and after satisfaction of liabilities to creditors of the Trust as required by applicable law,
including Section 3808 of the Business Trust Act, and subject to the terms set forth in Annex I,
the Institutional Trustee shall terminate the Trust by filing a certificate of cancellation with
the Secretary of State of the State of Delaware.



               (c) The provisions of Section 2.9 and Article X shall survive the termination of the Trust.



ARTICLE VIII




TRANSFER OF INTERESTS



          Section 8.1 General. (a) Where Capital Securities are presented to the Registrar or a co-registrar with a request to
register a transfer or to exchange them for an equal number of Capital Securities represented by
different certificates, the Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of transfer and exchanges, the
Trust shall issue and the Institutional Trustee shall authenticate Capital Securities at the
Registrar’s request.




               (b) Upon issuance of the Common Securities, the Sponsor shall acquire and retain beneficial
and record ownership of the Common Securities and for so long as the Securities remain outstanding,
the Sponsor shall maintain 100% ownership of the Common Securities; provided,
however, that any permitted successor of the Sponsor under the Indenture that is a U.S.
Person may succeed to the Sponsor’s ownership of the Common Securities.



               (c) Capital 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 Capital Securities. To
the fullest extent permitted by applicable law, any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void and will be deemed to be of no
legal effect whatsoever and any such transferee shall be deemed not to be the holder of such
Capital Securities for any purpose, including but not limited to the receipt of Distributions on
such Capital Securities, and such transferee shall be deemed to have no interest whatsoever in such
Capital Securities.



               (d) The Registrar shall provide for the registration of Securities and of transfers of
Securities, which will be effected without charge but only upon payment (with such indemnity as the
Registrar may require) in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities, the Registrar shall
cause one or more new Securities to be issued in the name of the designated transferee or
transferees. Any Security issued upon any registration of transfer or exchange



33









 




pursuant to the
terms of this Declaration shall evidence the same Security and shall be entitled to the same
benefits under this Declaration as the Security surrendered upon such registration of transfer or
exchange. Every Security surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form similar to Exhibits B and C satisfactory to the Registrar
duly executed by the Holder or such Holder’s attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Institutional Trustee pursuant to
Section 6.6. A transferee of a Security shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a Security. By acceptance
of a Security, each transferee shall be deemed to have agreed to be bound by this Declaration.




               (e) Neither the Trust nor the Registrar shall be required (i) to issue, register the transfer
of, or exchange any Securities during a period beginning at the opening of business 15 days before
the day of any selection of Securities for redemption and ending at the close of business on the
earliest date on which the relevant notice of redemption is deemed to have been given to all
Holders of the Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.



          Section 8.2 Transfer Procedures and Restrictions.




               (a) General. The Capital Securities shall bear the Restricted Securities Legend,
which shall not be removed unless there is delivered to the Trust such satisfactory evidence, which
may include an opinion of counsel licensed to practice law in the State of New York, as may be
reasonably required by the Trust, that neither the legend nor the restrictions on transfer set
forth therein are required to ensure that transfers thereof comply with the provisions of the
Securities Act or that such Securities are not “restricted” within the meaning of Rule 144 under
the Securities Act. Upon provision of such satisfactory evidence, the Institutional Trustee, at
the written direction of the Trust, shall authenticate and deliver Capital Securities that do not
bear the legend.



               (b) Transfer and Exchange of Capital Securities. When Capital Securities are
presented to the Registrar (x) to register the transfer of such Capital Securities, or (y) to
exchange such Capital Securities for an equal number of Capital Securities of another number, the
Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the Capital
Securities surrendered for registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory to the Trust and
the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing and
(i) if such Capital Securities are being transferred to a QIB, accompanied by a certificate of the
transferee substantially in the form set forth as Exhibit C hereto or (ii) if such Capital
Securities
are being transferred otherwise than to a QIB, accompanied by a certificate of the transferee
substantially in the form set forth as Exhibit B hereto.



               (c) Legend. Except as permitted by Section 8.2(a), each Capital Security shall bear a
legend (the “Restricted Securities Legend”) in substantially the following form:



34









 





          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE DEBENTURE ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT IN THE ENTITY AND
NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST
THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH
RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST
THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (1)




35









 







IT
IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH
SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE
BENEFIT PLAN OR PLAN, OR ANY OTHER. PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN
OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY
OR ADMINISTRATIVE EXEMPTION.




          IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION OF TRUST TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.




          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.




          (d) Minimum Transfers. Capital Securities may only be transferred in minimum blocks
of $100,000 aggregate liquidation amount (100 Capital Securities) and multiples of $1,000 in excess
thereof. Any attempted transfer of Capital Securities in a block having an aggregate liquidation
amount of less than $100,000 shall be deemed to be voided and of no legal effect whatsoever. Any
such purported transferee shall be deemed not to be a Holder of such Capital Securities for any
purpose, including, but not limited to, the receipt of Distributions on such Capital Securities,
and such purported transferee shall be deemed to have no interest whatsoever in such Capital
Securities.




               Section 8.3 Deemed Security Holders. The Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar 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, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have
actual or other notice thereof.




36











 





ARTICLE IX




LIMITATION OF LIABILITY OF

HOLDERS OF SECURITIES, TRUSTEES OR OTHERS



          Section 9.1 Liability. (a) Except as expressly set forth in this Declaration, the 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 the 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 Business Trust Act, the Holders of the Capital Securities
shall be entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Delaware.



          Section 9.2 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 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, if selected by such Indemnified Person, has been selected by
such Indemnified Person 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 9.3 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




37









 




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 the Indemnified Person.




               (b) 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 9.4 Indemnification. (a) (i) The Sponsor shall indemnify, to the full extent permitted by law, any 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 an Indemnified
Person against expenses (including attorneys’ fees and expenses), 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 Indemnified Person did not act in
good faith and in a manner which he reasonably believed to be in or not opposed to the best
interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.





               (ii) The Sponsor shall indemnify, to the full extent permitted by law, any
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 an
Indemnified Person against expenses (including attorneys’ fees and expenses)
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 Indemnified Person shall have been adjudged to be liable to the Trust
unless and only to the extent that the Court of Chancery of Delaware
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to



38









 






indemnity for such expenses which such Court of Chancery or such other court shall
deem proper.




               (iii) To the extent that an 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 9.4(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 and
expenses) actually and reasonably incurred by him in connection therewith.




               (iv) Any indemnification of an Administrator under paragraphs (i) and (ii) of
this Section 9.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Indemnified Person is proper in the circumstances because he has met the applicable
standard of conduct set forth in paragraphs (i) and (ii). Such determination shall
be made (A) by the Administrators by a majority vote of a Quorum consisting of such
Administrators who were not parties to such action, suit or proceeding, (B) if such
a Quorum is not obtainable, or, even if obtainable, if a Quorum of disinterested
Administrators so directs, by independent legal counsel in a written opinion, or (C)
by the Common Security Holder of the Trust.




               (v) To the fullest extent permitted by law, expenses (including attorneys’ fees
and expenses) incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in paragraphs
(i) and (ii) of this Section 9.4(a) shall be paid by the Sponsor in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 9.4(a). Notwithstanding the foregoing, no advance shall
be made by the Sponsor if a determination is reasonably and promptly made (A) by the
Administrators by a majority vote of a Quorum of disinterested Administrators, (B)
if such a Quorum is not obtainable, or, even if obtainable, if a Quorum of
disinterested Administrators so directs, by independent legal counsel in a written
opinion or (C) by the Common Security Holder of the Trust, that, based upon the
facts known to the Administrators, counsel or the Common Security Holder at the time
such determination is made, such 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
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
Administrators, independent legal counsel or the
Common Security Holder reasonably determine that such Person deliberately
breached his duty to the Trust or its Common or Capital Security Holders.



39









 





               (b) The Sponsor shall indemnify, to the fullest extent permitted by applicable law, each
Indemnified Person from and against any and all loss, damage, liability, tax (other than taxes
based on the income of such Indemnified Person), penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person arising out of or in connection with or by reason of
the creation, administration or termination of the Trust, or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage, liability, tax, penalty, expense or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with respect to such acts or
omissions.



               (c) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other paragraphs of this Section 9.4 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, partners or disinterested directors of the Sponsor 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 9.4 shall be
deemed to be provided by a contract between the Sponsor and each Indemnified Person who serves in
such capacity at any time while this Section 9.4 is in effect. Any repeal or modification of this
Section 9.4 shall not affect any rights or obligations then existing.



               (d) The Sponsor or the Trust may purchase and maintain insurance on behalf of any Person who
is or was an Indemnified Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the Sponsor would have the
power to indemnify him against such liability under the provisions of this Section 9.4.



               (e) For purposes of this Section 9.4, 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 9.4 with respect to the resulting
or surviving entity as he would have with respect to such constituent entity if its separate
existence had continued.



               (f) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 9.4 shall, unless otherwise provided when authorized or ratified, continue as to a Person
who has ceased to be an Indemnified Person and shall inure to the benefit of the heirs, executors
and administrators of such a Person.



          The provisions of this Section shall survive the termination of this Declaration or the
earlier resignation or removal of the Institutional Trustee. The obligations of the Sponsor under
this Section 9.4 to compensate and indemnify the Trustees and to pay or reimburse the Trustees for
expenses, disbursements and advances shall constitute additional indebtedness




40









 




hereunder. Such
additional indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustees as such, except funds held in trust for the
benefit of the holders of particular Securities.




     Section 9.5 Outside Businesses. Any Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee (subject to
Section 4.3(c)) may engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business of the Trust, and
the Trust and the Holders of Securities shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom, and the pursuit of any
such venture, even if competitive with the business of the Trust, shall not be deemed wrongful or
improper. None of any 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.




     Section 9.6 Compensation; Fee. The Sponsor agrees:




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



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



ARTICLE X




ACCOUNTING



     Section 10.1 Fiscal Year. The fiscal year (the “Fiscal Year”) of the Trust shall be the calendar year, or such other year
as is required by the Code.



     Section 10.2 Certain Accounting Matters.



               (a) At all times during the existence of the Trust, the Administrators shall keep, or cause to
be kept at the principal office of the Trust in the United States, as defined for purposes of
Treasury regulations section 301.7701-7, full books of account, records and



41









 







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.



               (b) The Administrators shall either (i) cause each Form 10K and Form 10Q prepared by the
Sponsor and filed with the Securities and Exchange Commission in accordance with the Securities
Exchange Act of 1934 to be delivered to each Holder of Securities, within 90 days after the filing
of each Form 10K and within 30 days after the filing of each Form 10Q or (ii) cause to be prepared
at the principal office of the Trust in the United States, as defined for purposes of Treasury
regulations section 301.7701-7, and delivered to each of the Holders of Securities, 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 Administrators shall cause to be duly prepared and delivered to each of the Holders of
Securities Form 1099 or such other annual United States federal income tax information statement
required by the Code, containing such information with regard to the Securities held by each Holder
as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrators shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.



               (d) The Administrators shall cause to be duly prepared in the United States, as defined for
purposes of Treasury regulations section 301.7701-7, and filed 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 Administrators on behalf
of the Trust with any state or local taxing authority.



               (e) So long as the only Holder of the Capital Securities is MM Community Funding Ltd, the
Administrators will cause the Sponsor’s reports on Form H-b(11) to be delivered to the Holder
promptly following their filing with the OTS.



          Section 10.3 Banking. The Trust shall maintain one or more bank accounts in the United States, as defined for purposes
of Treasury regulations section 301.7701-7, 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 Property Account and no other funds of the
Trust shall be deposited in the Property Account. The sole signatories for such accounts
(including the Property Account) shall be designated by the Institutional Trustee.




          Section 10.4 Withholding. The Institutional Trustee or any Paying Agent and the Administrators shall comply with all
withholding requirements under United States federal,
state and local law. The Institutional Trustee or any Paying Agent shall request, and each Holder
shall provide to the Institutional Trustee or any Paying Agent, such forms or certificates as are
necessary to establish an exemption from withholding with respect to the Holder, and any
representations and forms as shall reasonably be requested by the Institutional Trustee or any
Paying Agent to assist it in determining the extent of, and in fulfilling, its withholding




42









 




obligations. The Administrators 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
Institutional Trustee or any Paying Agent 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 to the Holder in the amount of the withholding. 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
Institutional Trustee or any Paying Agent may reduce subsequent Distributions by the amount of such
withholding.




ARTICLE XI




AMENDMENTS AND MEETINGS



          Section 11.1 Amendments. 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 Institutional Trustee,




               (ii) if the amendment affects the rights, powers, immunities of the Delaware
Trustee, the Delaware Trustee,




               (iii) if the amendment affects the rights, powers, immunities of the
Administrator, the Administrator, and




               (iv) the Holder of a Majority in liquidation amount of the Common Securities.



               (b) Notwithstanding any other provision of this Article XI, no amendment shall be made, and
any such purported amendment shall be void and ineffective:




               (i) unless 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); or




               (ii) if the result of such amendment would be




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



43









 






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




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




                    (D) cause the Debenture Issuer to be unable to treat an amount equal to
the Liquidation Amount of the Debentures as “Tier 1 Capital” or its then
equivalent in the guidelines or regulations issued by the OTS;
provided that the Debenture Issuer shall have become, or pursuant to
law or regulation will become within 180 days, subject to capital
requirements.



               (c) Except as provided in Section 11.1(d), (e) or (h), no amendment shall be made, and any
such purported amendment shall be void and ineffective unless the Holders of a Majority in
liquidation amount of the Capital Securities shall have consented to such amendment.



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



               (e) Section 9.1(b) and 9.1(c) and this Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.



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



               (g) The rights of the Holders of the Capital Securities and Common Securities, as applicable,
under Article IV 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 Capital
Securities or Common Securities, as applicable.



               (h) This Declaration may be amended by the Institutional Trustee and the Holder of a Majority
in liquidation amount of the Common Securities without the consent of the Holders of the Capital
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;



44









 






               (iv) modify, eliminate or add to any provision of this Declaration to such
extent as may be necessary or desirable, including, without limitation, to ensure
that the Trust will be classified for United States federal income tax purposes at
all times as a grantor trust and will not be required to register as an “investment
company” under the Investment Company Act (including without limitation to conform
to any change in Rule 3a-5, Rule 3a-7 or any other applicable rule under the
Investment Company Act or written change in interpretation or application thereof 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 of Securities;


provided, however, that no such modification, elimination or addition referred to
in clauses (i), (ii), (iii) or (iv) shall adversely affect the powers, preferences or special
rights of Holders of Capital Securities.




          Section 11.2 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
Administrators (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, if any. The Administrators shall call a meeting of the Holders of
such class if directed to do so by the Holders of at least 10% in liquidation amount of such class
of Securities. Such direction shall be given by delivering to the Administrators one or more calls
in a writing stating that the signing Holders of the Securities wish to call a meeting and
indicating the general or specific purpose for which the meeting is to be called. Any Holders of
the Securities calling a meeting shall specify in writing the Certificates held by the Holders of
the Securities exercising the right to call a meeting and only those Securities represented by such
Certificates 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 the Securities:




               (i) notice of any such meeting shall be given to all the Holders of the
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 the 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 trading, if any, such vote, consent or approval may be given at a meeting of the
Holders of the Securities. Any action that may be taken at a meeting of the
Holders of the Securities may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the Holders of the Securities
owning not less than the minimum amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of the 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 the Securities



45









 







entitled to vote who have not consented in writing. The Administrators may specify that any
written ballot submitted to the Holders of the Securities for the purpose of taking
any action without a meeting shall be returned to the Trust within the time
specified by the Administrators;




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




               (iii) unless the Business 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 for trading, if any, otherwise
provides, the Administrators, 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 the 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; provided, however, that each meeting shall he conducted in the
United States (as that term is defined in Treasury regulations section 3013701-7).



ARTICLE XII




REPRESENTATIONS OF INSTITUTIONAL TRUSTEE

AND DELAWARE TRUSTEE



          Section 12.1 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
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 banking corporation with trust powers, duly organized,
validly existing and in good standing under the laws of the United States with trustpower and
authority to execute and deliver, and to carry out and perform its obligations under the terms of,
this Declaration;



46









 





               (b) the execution, delivery and performance by the Institutional Trustee of this Declaration
has been duly authorized by all necessary corporate action on the part of the Institutional
Trustee. This 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 (regardless of whether considered in a proceeding in equity or at law);



               (c) the execution, delivery and performance of this 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 this Declaration.



          Section 12.2 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) if it is not a natural person, the Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware;



               (b) if it is not a natural person, the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate action on the part
of the Delaware Trustee. This Declaration has been duly executed and delivered by the Delaware
Trustee, and it constitutes a legal, valid and binding obligation of the Delaware Trustee,
enforceable against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency and other similar laws affecting creditors’ rights generally
and to general principles of equity (regardless of whether considered in a proceeding in equity or
at law);



               (c) if it is not a natural person, the execution, delivery and performance of this Declaration
by the Delaware Trustee does not conflict with or constitute a breach of the charter or by-laws of
the Delaware Trustee;



               (d) it has trust power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration;



               (e) no consent, approval or authorization of, or registration with or notice to, any state or
federal banking authority is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and



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



47









 







business in the State of
Delaware and, in either case, a Person that satisfies for the Trust the requirements of Section
3807 of the Business Trust Act.



ARTICLE XIII




MISCELLANEOUS



          Section 13.1 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 (which telecopy shall be followed by notice
delivered or mailed by first class mail) or mailed by first class mail, as follows:




               (a) if given to the Trust, in care of the Administrators 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:


First Alliance Capital Trust I

c/o Alliance Capital Partners, LP

8100 Nations Way

Jacksonville, Florida 32256

Attention: Stephen B. Matheson




               (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)

White Clay Center, Route 273

Newark, Delaware 19711

Attention: Corporate Trust Administration

Telecopy: 302-283-8279




               (c) if given to the Institutional Trustee, at the Institutional Trustee’s 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 21W

New York, NY 10286

Attention: Corporate Trust Administration

Telecopy: 212-815-5915




               (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):



48









 




Alliance Capital Partners, LP

8100 Nations Way

Jacksonville, Florida 32256

Attention: Stephen B. Matheson




               (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 13.2 Governing Law. This Declaration and the rights and obligations of the parties hereunder
shall be governed by
and interpreted in accordance with the law of the State of Delaware and all rights, obligations and
remedies shall be governed by such laws without regard to the principles of conflict of laws of the
State of Delaware or any other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware.




          Section 13.3 Submission to Jurisdiction. Each of the parties hereto agrees that any suit,
action or proceeding arising out of or based
upon this Declaration, or the transactions contemplated hereby, may be instituted in any of the
courts of the State of New York and the United State District Courts, in each case located in the
Borough of Manhattan, City and State of New York, and further agrees to submit to the jurisdiction
of any competent court in the place of its corporate domicile in respect of actions brought against
it as a defendant. In addition, each such party irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying of the venue of
such suit, action or proceeding brought in any such court and irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an inconvenient forum
and irrevocably waives any right to which it may be entitled on account of its place of corporate
domicile. Each such party hereby irrevocably waives any and all right to trial by jury in any
legal proceeding arising out of or relating to this Declaration or the transactions contemplated
hereby. Each such party agrees that final judgment in any proceedings brought in such a court
shall be conclusive and binding upon it and may be enforced in any court to the jurisdiction of
which it is subject by a suit upon such judgment.




          Each of the Sponsor and the Holder of the Common Securities irrevocably consents to the
service of process on it in any such suit, action or proceeding in any such court by the mailing
thereof by registered or certified mail, postage prepaid, to it at its address given in or pursuant
to Section 13.1 hereof.




          To the extent permitted by law, nothing herein contained shall preclude any party from
effecting service of process in any lawful manner or from bringing any suit, action or proceeding
in respect of this Declaration in any other state, country or place.




49









 





          Section 13.4 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 13.5 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 13.6 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 13.7 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 13.8 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 and
Administrators to any 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.




50









 





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



	 	 	 	 	 	 	 

	 	 	The Bank of New York (DELAWARE),

       as
Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of New York, 

      as Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Alliance Capital Partners, LP,

      as Sponsor	 	 
	 
	 	 	 	 	 	 
	 	 	By: Alliance Capital Partners, Inc.,


        the sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Robert M. Clements
	 	 
	 

	 	 	 	Title: President and Chief Executive
Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Robert M. Clements
	 	 
	 

	 	 	 	Title: Administrator	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Stephen B. Matheson
	 	 
	 

	 	 	 	Administrator	 	 






 









 





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



	 	 	 	 	 	 	 

	 	 	The Bank of New York (DELAWARE), 

       as
Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	The Bank of New York,


       as Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	Alliance Capital Partners, LP,

       as Sponsor	 	 
	 
	 	 	 	 	 	 
	 	 	By: Alliance Capital Partners, Inc., 

       
the sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Robert M. Clements
	 	 
	 

	 	 	 	Title: President and Chief Executive
Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Robert M. Clements
	 	 
	 

	 	 	 	Title: Administrator	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Stephen B. Matheson
	 	 
	 

	 	 	 	Administrator	 	 











 









 








ANNEX I




TERMS OF

FIXED RATE MMCapSSM

FIXED RATE COMMON SECURITIES



          Pursuant to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of July 16,
2001 (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):




          1. Designation and Number.




          (a) Capital Securities. 15,000 Capital Securities of First Alliance Capital Trust I (the
“Trust”), with an aggregate stated liquidation amount with respect to the assets of the
Trust of Fifteen Million Dollars ($15,000,000) and a stated liquidation amount with respect to the
assets of the Trust of $1,000 per Capital Security, are hereby designated for the purposes of
identification only as the “Fixed Rate MMCapSSM” (the “Capital Securities”).
The Capital Security Certificates evidencing the Capital Securities shall be substantially in the
form of Exhibit A-I 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, if any.




          (b) Common Securities. 464 Common Securities of the Trust (the “Common Securities”)
will be evidenced by Common Security Certificates 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. In the absence of an Event of Default, the Common Securities
will have an aggregate stated liquidation amount with respect to the assets of the Trust of Four
Hundred Sixty Four Thousand Dollars ($464,000) and a stated liquidation amount with respect to the
assets of the Trust of $1,000 per Common Security.




          2. Distributions. (a) Distributions payable on each Security will be payable at a fixed annual
rate equal to
10.25% (the “Coupon Rate”) of the stated liquidation amount of $1,000 per Security, such
rate being the rate of interest payable on the Debentures to be held by the Institutional Trustee.
Except as set forth below in respect of an Extension Period, Distributions in arrears for more than
one semi-annual period will bear interest thereon compounded semi-annually at the Coupon Rate (to
the extent permitted by applicable law). The term “Distributions” as used herein includes
cash distributions and any such compounded distributions payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee has funds available in the
Property Account therefor. The amount of Distributions payable for any period will be computed for
any full semi-annual period on the basis of a 360-day year of twelve 30-day months.




          (b) Distributions on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment




Annex I-1









 




periods as described herein, semi-annually in arrears on January 25th and July
25th of each year, commencing on January 25, 2002 (each, a “Distribution Payment
Date”). The Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period for up to 10 consecutive semi-annual
periods (each, an “Extension Period”) at any time and from time to time on the Debentures,
subject to the conditions described below, during which Extension Period no interest shall be due
and payable (except any Additional Interest that may be due and payable) although such interest
would continue to accrue on the Debentures, and interest will accrue on such Deferred Interest at
an annual rate equal to 10.25%, compounded semi-annually to the extent permitted by law during any
Extension Period. No Extension Period may end on a date other than a Distribution Payment Date.
At the end of any such Extension Period the Debenture Issuer shall pay all Deferred Interest;
provided, however, that no Extension Period may extend beyond the Maturity Date and
provided further, that, during any such Extension Period, (A) if the Debenture
Issuer is a partnership, it may not (i) declare or pay any distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the partnership interests of the
Debenture Issuer or (ii) make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of the Debenture Issuer that rank pari passu in all
respects with or junior in interest to the Debt Securities (other than (a) repurchases, redemptions
or other acquisitions of the partnership interests of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers or consultants, in connection with a equity reinvestment or equity purchase
plan or in connection with the issuance of the partnership interests of the Company (or securities
convertible into or exercisable for such partnership interests) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the partnership interests of the Company (or any equity
securities of a subsidiary of the Company) for any class or series of the partnership interests of
the Company or of any class or series of the Company’s indebtedness for any class or series of the
partnership interests of the Company, (c) the purchase of fractional interests of the partnership
interests of the Company pursuant to the conversion or exchange provisions of such partnership
interests or the partnership interests being converted or exchanged, (d) any distribution in
connection with any equity rights plan, or the issuance of rights, partnership interests or other
property under any equity rights plan, or the redemption or repurchase of rights pursuant thereto,
or (e) any distribution in the form of partnership interests, warrants, options or other rights
where the distributed partnership interests or the partnership interests issuable upon exercise of
such warrants, options or other rights are of the same class or series of partnership interests as
that on which the distribution is being made or ranks pari passu with or junior to such class or
series of partnership interests), or (B) if the Debenture Issuer is a corporation, it may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Debenture Issuer’s capital stock or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Debenture Issuer that rank pari passu in all respects with or junior in interest
to the Debentures (other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Debenture Issuer in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees, officers, directors or
consultants, in connection with a dividend reinvestment or stockholder stock purchase plan or in
connection with the issuance of capital stock of the Debenture Issuer


Annex I-2









 






 (or securities convertible into or exercisable for such capital stock) as consideration in an acquisition
transaction entered
into prior to the applicable Extension Period, (b) as a result of any exchange or conversion of any
class or series of the Debenture Issuer’s capital stock (or any capital stock of a subsidiary of
the Debenture Issuer) for any class or series of the Debenture Issuer’s capital stock or of any
class or series of the Debenture Issuer’s indebtedness for any class or series of the Debenture
Issuer’s capital stock, (c) the purchase of fractional interests in shares of the Debenture
Issuer’s capital stock pursuant to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property under any
stockholder’s rights plan, or the redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock). Prior to the
termination of any Extension Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semi-annual periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and upon the payment of all Deferred
Interest, the Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear Deferred Interest. If Distributions are
deferred, the Distributions due shall be paid on the date that the related Extension Period
terminates, or, if such date is not a Distribution Payment Date, on the immediately following
Distribution Payment Date, to Holders of the Securities as they appear on the books and records of
the Trust on the record date immediately preceding such date. Distributions on the Securities must
be paid on the dates payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property Account of the
Trust. The Trust’s funds available for Distribution to the Holders of the Securities will be
limited to payments received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.




          (c) Distributions on the Securities will be payable to the Holders thereof as they appear on
the books and records of the Trust on the relevant record dates. The relevant record dates shall
be selected by the Administrators, which dates shall be 15 days before the relevant payment dates.
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, as
the case may be, when due (taking into account any Extension Period), will cease to be payable to
the Person in whose name such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in whose name such Securities are
registered on the special record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and effect as if made on
such payment date.







Annex I-3









 








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




          3. Liquidation Distribution Upon Dissolution. In the event of the voluntary or involuntary
liquidation, dissolution, winding-up or termination
of the Trust (each, a “Liquidation”) other than in connection with a redemption of the
Debentures, the Holders of the Securities will be entitled to receive out of the assets of the
Trust available for distribution to Holders of the Securities, after satisfaction of liabilities to
creditors of the Trust (to the extent not satisfied by the Debenture Issuer), distributions equal
to the aggregate of the stated liquidation amount of $1,000 per Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”), unless in connection with such Liquidation, the Debentures in an aggregate
stated principal amount equal to the aggregate stated liquidation amount of such Securities, with
an interest rate equal to the Coupon Rate of, and bearing accrued and unpaid interest in an amount
equal to the accrued and unpaid Distributions on, and having the same record date as, such
Securities, after paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business Trust Act, shall be distributed on a Pro
Rata basis to the Holders of the Securities in exchange for such Securities.




          The Sponsor, as the Holder of all of the Common Securities, has the right at any time to
dissolve the Trust (including without limitation upon the occurrence of a Tax Event, an Investment
Company Event or a Capital Treatment Event), subject to the receipt by the Debenture Issuer of
prior approval from the Office of Thrift Supervision (the “OTS”), if then required under
applicable capital guidelines or policies of the OTS and, after satisfaction of liabilities to
creditors of the Trust, cause the Debentures to be distributed to the Holders of the Securities on
a Pro Rata basis in accordance with the aggregate stated liquidation amount thereof.




          The Trust shall dissolve on the first to occur of (i) July 25, 2036, the expiration of the
term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor, Trust or the Debenture
Issuer, (iii) (other than in connection with a merger, consolidation or similar transaction not
prohibited by the Indenture, this Declaration or the Guarantee, as the case may be) the filing of a
certificate of dissolution of the Sponsor or upon the revocation of the charter of the Sponsor and
the expiration of 90 days after the date of revocation without a reinstatement thereof, (iv) the
distribution to the Holders of the Securities of the Debentures, upon exercise of the right of the
Holder of all of the outstanding Common Securities to dissolve the Trust as described above, (v)
the entry of a decree of a judicial dissolution of the Sponsor or the Trust, or (vi) when all of
the Securities shall have been called for redemption and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with the terms of the Securities. As
soon as practicable after the dissolution of the Trust and upon completion of the winding up of the
Trust, the Trust shall terminate upon the filing of a certificate of cancellation with the
Secretary of State of the State of Delaware.




          If a Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v) in the
immediately preceding paragraph, the Trust shall be liquidated by the Trustees of the Trust as
expeditiously as such Trustees determine to be possible by distributing, after satisfaction of
liabilities to creditors of the Trust, to the Holders of the Securities, the Debentures on a Pro
Rata




Annex I-4









 




basis to the extent not satisfied by the Debenture Issuer, unless such distribution is
determined by the Institutional Trustee not to be practical, in which event such Holders will be
entitled to receive out of the assets of the Trust available for distribution to the Holders, after
satisfaction of liabilities of creditors of the Trust to the extent not satisfied by the Debenture
Issuer, an amount equal to the Liquidation Distribution. An early Liquidation of the Trust
pursuant to clause (iv) above shall occur if the Institutional Trustee determines that such
Liquidation is possible by distributing, after satisfaction of liabilities to creditors of Trust,
to the Holders of the Securities on a Pro Rata basis, the Debentures, and such distribution occurs.




          If, upon any such Liquidation 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 such Capital Securities shall be paid to the
Holders of the Securities on a pro rata basis, except that if an Event of Default has occurred and
is continuing, the Capital Securities shall have a preference over the Common Securities with
regard to such distributions.




          Upon any such Liquidation of the Trust involving a distribution of the Debentures, if at the
time of such Liquidation, the Capital Securities were rated by at least one nationally-recognized
statistical rating organization, the Debenture Issuer will use its reasonable best efforts to
obtain from at least one such or other rating organization a rating for the Debentures.




          After the date for any distribution of the Debentures upon dissolution of the Trust, (i) the
Securities of the Trust will be deemed to be no longer outstanding, (ii) any certificates
representing the Capital Securities will be deemed to represent undivided beneficial interests in
such of the Debentures as have an aggregate principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate of, and bearing
accrued and unpaid interest equal to accrued and unpaid distributions on, the Securities until such
certificates are presented to the Debenture Issuer or its agent for transfer or reissuance (and
until such certificates are so surrendered, no payments of interest or principal shall be made to
Holders of Securities in respect of any payments due and payable under the Debentures) and (iii)
all rights of Holders of Securities under the Capital Securities or the Common Securities, as
applicable, shall cease, except the right of such Holders to receive Debentures upon surrender of
certificates representing such Securities.




          4. Redemption and Distribution.




          (a) The Debentures will mature on July 25, 2031. The Debentures may be redeemed by the
Debenture Issuer, in whole or in part, on any January 25th or July 25th on or
after July 25, 2006, at the Redemption Price, upon not less than 30 days nor more than 60 day’s
notice to Holders of such Debentures. In addition, upon the occurrence and continuation of a Tax
Event, an Investment Company Event or a Capital Treatment Event, the Debentures may be redeemed by
the Debenture Issuer in whole but not in part, at any time within 90 days following the occurrence
of such Tax Event, Investment Company Event or Capital Treatment Event, as the case may be (the
“Special Redemption Date”), at the Special Redemption Price, upon not less than 30 nor more
than 60 days’ notice to Holders of the Debentures so long as such Tax Event, Investment Company
Event or Capital Treatment Event, as the case may be, is continuing. In each case, the right of
the Debenture Issuer to redeem the Debentures is subject to the Debenture




Annex I-5









 




Issuer having received prior approval from the OTS, if then required under applicable capital
guidelines or policies of the OTS.




          “Tax Event” means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter ruling, technical advice
memorandum, regulatory procedure, notice or announcement (an “Administrative Action”)) or
judicial decision interpreting or applying such laws or regulations, regardless of whether such
Administrative Action or judicial decision is issued to or in connection with a proceeding
involving the Debenture Issuer or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted, promulgated or
announced, in each case on or after the date of original issuance of the Debentures, there is more
than an insubstantial risk that: (1) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income received or accrued on
the Debentures; (ii) interest payable by the Debenture Issuer on the Debentures is not, or within
90 days of the date of such opinion, will not be, deductible by the Debenture Issuer, in whole or
in part, for United States federal income tax purposes; or (iii) the Trust is, or will be within 90
days of the date of such opinion, subject to more than a de minimis amount of other taxes, duties
or other governmental charges.




          “Investment Company Event” means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a result of the occurrence
of a change in law or regulation or written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or, within 90 days of the date of such opinion
will be, considered an “investment company” that is required to be registered under the Investment
Company Act of 1940, as amended, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original issuance of the
Debentures.




          “Capital Treatment Event” means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a result of the occurrence
of any (a) amendment to, or change in, the laws, rules or regulations of the United States or any
political subdivision thereof or therein, or any rules, guidelines or policies of an applicable
regulatory authority for the Debenture Issuer or (b) any official or administrative pronouncement
or action or judicial decision interpreting or applying such laws, rules or regulations, which
amendment or change is effective or which pronouncement, action or decision is announced on or
after the date of original issuance of the Debentures, there is more than an insubstantial risk
that the Debenture Issuer will not, within 90 days of the date of such opinion, be entitled to
treat an amount equal to the aggregate Liquidation Amount of the Capital Securities as “Tier I
Capital” (or its then equivalent if the Debenture Issuer were subject to such capital requirement)
applied as if the Debenture Issuer (or its successors) were a bank holding company for purposes of
capital adequacy guidelines of the Federal Reserve (or any successor regulatory authority with
jurisdiction over bank holding companies), or any capital adequacy guidelines as then in effect and
applicable to the Debenture Issuer; provided, however, that the




Annex I-6









 




distribution of the Debentures in connection with the Liquidation of the Trust by the
Debenture Issuer shall not in and of itself constitute a Capital Treatment Event unless such
Liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.




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




          “Redemption Price” means the price set forth in the following table for any Redemption
Date or Special Redemption Date that occurs within the twelve-month period beginning in the
relevant date indicated below, expressed in percentage of the principal amount of the Debentures
being redeemed:




	 	 	 	 	 
	Year Beginning	 	Percentage
	July 25, 2006
	 	 	107.6875	%
	July 25, 2007
	 	 	106.1500	%
	July 25, 2008
	 	 	104.6125	%
	July 25, 2009
	 	 	103.0750	%
	July 25, 2010
	 	 	101.5375	%
	July 25, 2011 and after
	 	 	100.0000	%






          plus accrued and unpaid interest on such Debentures to the Redemption Date or, in the case of
a redemption due to the occurrence of a Special Event, to the Special Redemption Date.




          “Special Redemption Price” means (1) if the Special Redemption Date is before July 25,
2006, the greater of (a) 100% of the principal amount of the Debentures being redeemed pursuant to
Section 10.02 of the Indenture or (b) as determined by a Quotation Agent, the sum of the present
values of the principal amount and the premium payable as part of the Redemption Price with respect
to a redemption as of July 25, 2006 together with the present value of scheduled payments of
interest over the Remaining Life of such Debentures, discounted to the Special Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid interest on such Debentures
to the Special Redemption Date and (2) if the Special Redemption Date is on or after July 25, 2006,
the Redemption Price for such Special Redemption Date.




          “Comparable Treasury Issue” means, with respect to any Special Redemption Date, the
United States Treasury security selected by the Quotation Agent as having a maturity comparable to
the Remaining Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after July 25, 2006, the two most closely
corresponding United States Treasury securities shall be used as the Comparable Treasury Issue, and
the Treasury Rate shall be interpolated or extrapolated on a straight-line basis, rounding to the
nearest month using such securities.




Annex I-7









 





          “Comparable Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Quotation Agent obtains fewer than five such Reference
Treasury Dealer Quotations, the average of all such Quotations.




          “Primary Treasury Dealer” shall mean a primary United States Government securities
dealer in New York City.




          “Quotation Agent” means Salomon Smith Barney Inc. and its successors;
provided, however, that if the foregoing shall cease to be a Primary Treasury
Dealer, the Debenture Issuer shall substitute therefor another Primary Treasury Dealer.




          “Redemption Date” shall mean the date fixed for the redemption of Capital Securities,
which shall be any January 25th or July 25th commencing on July 25, 2006.




          “Reference Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Debenture Trustee after consultation with the Debenture Issuer.




          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the Quotation Agent, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Debenture Trustee by such Reference Treasury Dealer
at 5:00 p.m., New York City time, on the third Business Day preceding such Special Redemption Date.




          “Remaining Life” means, with respect to any Debenture, the period from the Special
Redemption Date for such Debenture to July 25, 2006.




          “Treasury Rate” means (i) the yield, under the heading which represents the average
for the week immediately prior to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption “Treasury Constant Maturities”, for the
maturity corresponding to the Remaining Life (if no maturity is within three months before or after
the Remaining Life, yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding the calculation date or does not
contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of
the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such
Special Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding
the Special Redemption Date.




          (b) Upon the repayment in full at maturity or redemption in whole or in part of the Debentures
(other than following the distribution of the Debentures to the Holders of the Securities), the
proceeds from such repayment or payment shall concurrently be applied to




Annex I-8









 




redeem Pro Rata at the applicable Redemption Price, Securities having an aggregate liquidation
amount equal to the aggregate principal amount of the Debentures so repaid or redeemed;
provided, however, that holders of such Securities shall be given not less than 30
nor more than 60 days’ notice of such redemption (other than at the scheduled maturity of the
Debentures).




          (c) If fewer than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities V will be redeemed Pro Rata and the Capital Securities to be redeemed
will be as described in Section 4(e)(ii) below.




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




          (e) Redemption or Distribution Procedures.





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




               (ii) In the event that fewer than all the outstanding Securities are to be redeemed,
the Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
Securities.




               (iii) If the 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,
provided that the Institutional Trustee has 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 each such 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 date of such
deposit Distributions will cease to accrue on the Securities so called for redemption and
all rights of Holders of such Securities so called for redemption will cease, except the
right of the Holders of such Securities to receive the applicable Redemption Price



Annex I-9









 







specified in Section 4(a), but without interest on such Redemption Price. If any date
fixed for redemption of Securities is not a Business Day, then payment of any such
Redemption Price payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such delay) except
that, if such Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect as if made
on such date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is improperly withheld or refused and not paid either by the Trust or by the
Debenture Issuer as guarantor pursuant to the Guarantee, Distributions on such Securities
will continue to accrue at the then applicable rate from the original redemption date to the
actual date of payment, in which case the actual payment date will be considered the date
fixed for redemption for purposes of calculating the Redemption Price. In the event of any
redemption of the Capital Securities issued by the Trust in part, the Trust shall not be
required to (i) issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before any selection for redemption of the
Capital Securities and ending at the close of business on the earliest date on which the
relevant notice of redemption is deemed to have been given to all Holders of the Capital
Securities to be so redeemed or (ii) register the transfer of or exchange any Capital
Securities so selected for redemption, in whole or in part, except for the unredeemed
portion of any Capital Securities being redeemed in part.




               (iv) Redemption/Distribution Notices shall be sent by the Administrators on behalf of
the Trust (A) in respect of the Capital Securities, to the Holders 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), and provided that the acquiror is not the Holder of the
Common Securities or the obligor under the Indenture, the Sponsor or any of its subsidiaries
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. The Administrators
are required to call a meeting of the Holders of the Capital Securities if directed to do so by
Holders of at least 10% in liquidation amount of the Capital Securities.




          (b) Subject to the requirements of obtaining a tax opinion by the Institutional Trustee in
certain circumstances set forth in the last sentence of this paragraph, the Holders of a Majority
in liquidation amount of the Capital Securities, voting separately as a class, have the right to
direct 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 the Declaration, including the right to direct the Institutional Trustee, as holder of the
Debentures, to (i) exercise the remedies available under the Indenture as the holder of the
Debentures, (ii) waive any past default that is waivable under the Indenture, or (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 on behalf of all the Holders of the Capital Securities to any




Annex I-10









 




amendment, modification or termination of the Indenture or the Debentures where such consent
shall be required; provided, however, that, where a consent or action under
the Indenture would require the consent or act of the holders of greater than a simple majority in
principal amount of Debentures (a “Super Majority”) affected thereby, 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 Capital Securities outstanding which the
relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding.
If the Institutional Trustee fails to enforce its rights under the Debentures after the Holders of
a Majority in liquidation amount of such Capital Securities have so directed the Institutional
Trustee, to the fullest extent permitted by law, a Holder of the Capital Securities may institute a
legal proceeding directly against the Debenture Issuer to enforce the Institutional Trustee’s
rights under the Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date the interest or
principal is payable (or in the case of redemption, the redemption date), then a Holder of record
of the Capital Securities may directly institute a proceeding for enforcement of payment, on or
after the respective due dates specified in the Debentures, to such Holder directly of the
principal of or interest on the Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder. The Institutional Trustee
shall notify all Holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Debentures unless (x) such default has been cured prior
to the giving of such notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of such Capital Securities, except
where the default relates to the payment of principal of or interest on any of the Debentures.
Such notice shall state that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of conducting a proceeding
for a remedy, the Institutional Trustee shall not take any of the actions described in clause (i),
(ii) or (iii) above unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that, as a result of such action, the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes.




          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, 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 a Super Majority, the Institutional
Trustee may only give such consent at the written direction of the Holders of at least the
proportion in liquidation amount of such Securities outstanding which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the written directions of the Holders of
the Securities unless the Institutional Trustee has obtained an opinion of tax counsel to the
effect that, as a result of such action, the Trust will not be classified as other than a grantor
trust for United States federal income tax purposes.




Annex I-11









 





          A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Event
of Default hereunder. Any required approval or direction of Holders of the Capital Securities may
be given at a separate meeting of Holders of the Capital Securities convened for such purpose, at a
meeting of all of the Holders of the Securities in the Trust or pursuant to written consent. The
Institutional Trustee will cause a notice of any meeting at which Holders of the 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 the Capital Securities. Each such notice will
include a statement setting forth the following information (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 the Declaration and
the terms of the Securities.




          Notwithstanding that Holders of the 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 entitle the Holder thereof to vote or consent and
shall, for purposes of such vote or consent, be treated as if such Capital Securities were not
outstanding.




          In no event will Holders of the Capital Securities have the right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in the Sponsor as the
Holder of all of the Common Securities of the Trust. Under certain circumstances as more fully
described in the Declaration, Holders of Capital Securities have the right to vote to appoint,
remove or replace the Institutional Trustee and the Delaware Trustee.




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




          (b) The Holders of the Common Securities are entitled, in accordance with Article IV of the
Declaration, to vote to appoint, remove or replace any Administrators.




          (c) Subject to Section 6.7 of the Declaration and only after each Event of Default (if any)
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 exercising 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) waive any past default and its consequences
that is waivable under the Indenture or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable, provided,
however, that, where a consent or action under the Indenture would require a Super
Majority, the Institutional Trustee may only give such consent or take such action at the




Annex I-12









 




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. Notwithstanding this Section 6(c), the Institutional Trustee shall not
revoke any action previously authorized or approved by a vote or consent 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 described in clause (i), (ii)
or (iii) above, 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 to the fullest extent permitted by law, any Holder of the
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 the Common Securities may be given at a separate
meeting of Holders of the Common Securities convened for such purpose, at a meeting of all of the
Holders of the Securities in the Trust or pursuant to written consent. The Administrators will
cause a notice of any meeting at which Holders of the Common 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 the 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 11.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or the Trustees otherwise propose to effect, (1) 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 Liquidation of the Trust,
other than as described in Section 7.1 of the Declaration, then the Holders of outstanding
Securities, voting together as a single class, will be entitled to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the approval of the
Holders of at least a Majority in liquidation amount of the Securities, affected thereby;
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




Annex I-13









 




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 a Super
Majority, the Institutional Trustee may only give such consent at the written 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.




          (c) Notwithstanding the foregoing, no amendment or modification may be made to a Declaration
if such amendment or modification would (i) cause the Trust to be classified for purposes of United
States federal income taxation as other than a grantor trust, (ii) reduce or otherwise adversely
affect the powers of the Institutional Trustee or (iii) cause the Trust to be deemed an “investment
company” which is required to be registered under the Investment Company Act.




          (d) Notwithstanding any provision of the Declaration, the right of any Holder



of the Capital Securities to receive payment of distributions and other payments upon
redemption or otherwise, on or after their respective due dates, or to institute a suit for the
enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder. For the protection and enforcement of the foregoing
provision, each and every Holder of the Capital Securities shall be entitled to such relief as can
be given either at law or equity.




          8. Pro Rata. A reference in these terms of the Securities to any payment, distribution or treatment as being
“Pro Rata” shall mean pro rata to each Holder of the Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to the aggregate
liquidation amount of all Securities outstanding unless, in relation to a payment, an Event of
Default 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 the 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 the Common Securities Pro
Rata according to the aggregate liquidation amount of the Common Securities held by the relevant
Holder relative to the aggregate liquidation amount of all Common Securities outstanding.




          9. Ranking. Capital Securities rank pari passu with and payment thereon shall be made Pro Rata with the
Common Securities except that, where an Event of Default has occurred and is continuing, the rights
of Holders of the Common Securities to receive payment of Distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of the Holders of the Capital
Securities with the result that no payment of any Distribution on, or Redemption Price of, any
Common Security, and no other payment on account of redemption, liquidation or other acquisition of
Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid
Distributions on all outstanding Capital Securities for all distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount of such
Redemption Price on all outstanding Capital Securities then called for redemption, shall have been
made or provided for, and all funds




Annex I-14









 




immediately available to the Institutional Trustee shall first be applied to the payment in full in
cash of all Distributions on, or the Redemption Price of, the Capital Securities then due and
payable.




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




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




          12. Miscellaneous. These terms constitute a part of the Declaration. The Sponsor will provide
a copy of the
Declaration, the Guarantee, and the Indenture to a Holder without charge on written request to the
Sponsor at its principal place of business.







Annex I-15









 








EXHIBIT A-1




FORM OF CAPITAL SECURITY CERTIFICATE



[FORM OF FACE OF SECURITY]



          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE TRUST, (B) PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH
(a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, SUBJECT TO THE DEBENTURE ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE
HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A
“PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR




Exhibit A-1-1









 




PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR
HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR
OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




          IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY THE DECLARATION OF TRUST TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.




          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.




Exhibit A-1-2









 





	 	 	 

	Certificate Number:                     

	 	Number of Capital Securities:






CUSIP
NO 1 1




Certificate Evidencing Capital Securities



of



First Alliance Capital Trust I



Fixed Rate MMCapSSM



(liquidation amount $1,000 per Capital Security)



          First Alliance Capital Trust I, a statutory business trust created under the laws of the
State of Delaware (the “Trust”), hereby certifies that [__________] (the
“Holder”) is the registered owner of securities of the Trust representing undivided
beneficial interests in the assets of the Trust, designated the Fixed Rate MMCapSSM
(liquidation amount $1,000 per Capital Security) (the “Capital Securities”). Subject to
the Declaration (as defined below), 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 represented
hereby are issued pursuant to, and shall in all respects be subject to, the provisions of the
Amended and Restated Declaration of Trust of the Trust dated as of July 16, 2001, among Robert M.
Clements, Gary A. Meeks and Stephen B. Matheson, as Administrators, The Bank of New York
(Delaware), as Delaware Trustee, The Bank of New York, as Institutional Trustee, Alliance Capital
Partners, LP, as Sponsor, and the holders from time to time of undivided beneficial interests in
the assets, of the Trust, including the designation of the terms of the Capital Securities as set
forth in Annex I to the Declaration, as the same may be amended from time to time (the
“Declaration”). 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 Guarantee to the extent
provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee, and the
Indenture to the Holder without charge upon written request to the Trust at its principal place of
business.




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




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




          This Capital Security is governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to principles of conflict of laws.




Exhibit A-1-3









 





     IN WITNESS WHEREOF, the Trust has duly executed this certificate.



	 	 	 	 	 	 	 

	 	 	FIRST ALLIANCE CAPITAL TRUST I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title: Administrator	 	 






CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 

	 	 	THE BANK OF NEW YORK, as the Institutional

Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Officer
	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 
	 

	 	 	 	 

	 	 






Exhibit A-1-4









 





[FORM OF REVERSE OF SECURITY]




          Distributions payable on each Capital Security will be payable at a fixed annual rate of
10.25% (the “Coupon Rate”) of the stated liquidation amount of $1,000 per Capital Security,
such rate being the rate of interest payable on the Debentures to be held by the Institutional
Trustee. Except as set forth below in respect of an Extension Period, Distributions in arrears for
more than one semi-annual period will bear interest thereon compounded semiannually at the Coupon
Rate (to the extent permitted by applicable law). The term “Distributions” as used herein
includes cash distributions, any such compounded interest and any Additional Interest payable on
the Debentures unless otherwise stated. A Distribution is payable only to the extent that payments
are made in respect of the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Property Account therefor. The amount of
Distributions payable for any period will be computed for any full semiannual Distribution period
on the basis of a 360-day year of twelve 30-day months.




          Except as otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable semi-annually in
arrears on January 25th and July 25th of each year, commencing on January 25,
2002 (each, a “Distribution Payment- Date”). The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest payment period
for up to 10 consecutive semi-annual periods (each, an “Extension Period”) at any time and
from time to time on the Debentures, subject to the conditions described below, during which
Extension Period no interest shall be due and payable (except any Additional Interest that may be
due and payable) although such interest would continue to accrue on the Debentures, and Interest
will accrue on such Deferred Interest, at an annual rate equal to 10.25%, compounded semi-annually
to the extent permitted by law during any Extension Period. No Extension Period may end on a date
other than a Distribution Payment Date. At the end of any such Extension Period the Debenture
Issuer shall pay all Deferred Interest then accrued and unpaid on the Debentures; provided
however, that no Extension Period may extend beyond the Maturity Date. Prior to the
termination .of any Extension Period, the Debenture Issuer may further extend such period,
provided that such period together with all such previous and further consecutive
extensions thereof shall not exceed 10 consecutive semi-annual periods, or extend beyond the
Maturity Date. Upon the termination of any Extension Period and upon the payment of all Deferred
Interest, the Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear Deferred Interest. If Distributions are
deferred, the Distributions due shall be paid on the date that the related Extension Period
terminates, or, if such date is not a Distribution Payment Date, on the immediately following
Distribution Payment Date, to Holders of the Securities as they appear on the books and records of
the Trust on the record date immediately preceding such date. Distributions on the Securities must
be paid on the dates payable (after giving effect to any Extension Period) to the extent that the
Trust has funds available for the payment of such distributions in the Property Account of the
Trust. The Trust’s funds available for Distribution to the Holders of the Securities will be
limited to payments received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.




Exhibit A-1-5









 





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




Exhibit A-1-6









 





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




as 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)




	 	 	 	 	 	 	 

	 

	 	Signature Guarantee:1
	 	 
 

	 	 








 




			
	1	 	Signature must be guaranteed by an “eligible
guarantor institution” that is a bank, stockbroker, savings and loan
association or credit union meeting the requirements of the Security registrar,
which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”) or such other “signature guarantee
program” as may be determined by the Security registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of
1934. as amended.





Exhibit A-1-7









 





EXHIBIT A-2




FORM OF COMMON SECURITY CERTIFICATE



          THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION.




          EXCEPT AS SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.




Exhibit A-2-1









 





Certificate Number:                                 Number of Common Securities:




Certificate Evidencing Common Securities



of



First Alliance Capital Trust I



          First Alliance Capital Trust I, a statutory business trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that [_____________] (the
“Holder”) is the registered owner of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust (the “Common Securities”). The
designation, rights, privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued pursuant to, and shall in all respects be subject
to, the provisions of the Amended and Restated Declaration of Trust of the Trust dated as of July
16, 2001, among Robert M. Clements, Gary A. Meeks and Stephen B. Matheson, as Administrators, The
Bank of New York (Delaware), as Delaware Trustee, The Bank of New York, as Institutional Trustee,
Alliance Capital Partners, LP, as Sponsor, and the holders from time to time of undivided
beneficial interest in the assets of the Trust including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration, as the same may be amended from time to time
(the “Declaration”). 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 Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee and the
Indenture to the Holder without charge upon written request to the Sponsor at its principal place
of business.




          As set forth in the Declaration, where an Event of Default has occurred and continuing, the
rights of Holders of Common securities to payment in respect of Distributions and payments upon
Liquidation, redemption or otherwise are subordinated to the rights of payment of Holders of the
Capital Securities.




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




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




          This Common Security is governed by, and construed in accordance with, the laws of the State
of Delaware, without regard to principles of conflict of laws.




Exhibit A-2-2









 





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




	 	 	 	 	 	 	 

	 	 	FIRST ALLIANCE CAPITAL TRUST I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name:
	 	 
	 

	 	 	 	Title: Administrator	 	 







Exhibit A-2-3











 





[FORM OF REVERSE OF SECURITY]




          Distributions payable on each Common Security will be identical in amount to the Distributions
payable on each Capital Security, which is at a fixed annual rate of 10.25% (the “Coupon
Rate”) of the stated liquidation amount of 51,000 per Capital Security, such rate being the
rate of interest payable on the Debentures to be held by the Institutional Trustee. Except as set
forth below in respect of an Extension Period, Distributions in arrears for more than one
semi-annual period will bear interest thereon compounded semi-annually at the Coupon Rate (to the
extent permitted by applicable law). The term “Distributions” as used herein includes cash
distributions, any such compounded distribution and any Additional Interest payable on the
Debentures unless otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the extent the
Institutional Trustee has funds available in the Property Account therefor. The amount of
Distributions payable for any period will be computed for any full semi-annual Distribution period
on 360-day year of twelve 30-day months.




          Except as otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable semiannually in
arrears on January 25th and July 25th of each year, commencing on January 25,
2002 (each, a “Distribution Payment Date”). The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest payment period
for up to 10 consecutive semi-annual periods (each, an “Extension Period”) at any time and
from time to time on the Debentures, subject to the conditions described below, during which
Extension Period no interest shall be due and payable (except any Additional Interest that may be
due and payable). No Extension Period may end on a date other than a Distribution Payment Date.
During an Extension Period, interest would continue to accrue on the Debentures, and interest on
such accrued interest (such accrued interest and interest thereon referred to herein as
“Deferred Interest”) will accrue at an annual rate equal to 10.25%, compounded
semi-annually from the date such Deferred Interest would have been payable were it not for the
Extension Period to the extent permitted by law during any Extension Period. At the end of any
such Extension Period the Debenture Issuer shall pay all Deferred Interest then accrued and unpaid
on the Debentures; provided, however, that no Extension Period may extend beyond
the Maturity Date. Prior to the termination of any Extension Period, the Debenture Issuer may
further extend such period, provided that such period together with all such previous and
further consecutive extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period and upon the payment
of all Deferred Interest, the Debenture Issuer may commence a new Extension Period, subject to the
foregoing requirements. No interest or Deferred Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear Deferred Interest. If
Distributions are deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates, or, if such date is not a Distribution Payment Date, on the
immediately following Distribution Payment Date, to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such date. Distributions
on the Securities must be paid on the dates payable (after giving effect to any Extension Period)
to the extent that the Trust has funds available for the payment of such distributions in the




Exhibit A-2-4









 




Property Account of the Trust. The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The payment of Distributions out of moneys held
by the Trust is guaranteed by the Guarantor pursuant to the Guarantee.




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



Exhibit A-2-5









 





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



as 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)




          Signature Guarantee:1                                        






 




			
	1	 	Signature must be guaranteed by an “eligible
guarantor institution” that is a bank. stockbroker, savings and loan
association or credit union, meeting the requirements of the Security
registrar, which requirements include membership or participation in the
Securities Transfer Agents Medallion Program (“‘STAMP”) or such other
“signature guarantee program” as may be determined by the Security registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934. as amended.




Exhibit A-2-6









 










EXHIBIT B




FORM OF TRANSFEREE CERTIFICATE

TO BE EXECUTED BY TRANSFEREES OTHER THAN QIBS




                    , [ ]



Alliance Capital Partners, LP



First Alliance Capital Trust I




8100 Nations Way

Jacksonville, Florida 32256





			
	          Re:	 	Purchase of $1,000 stated liquidation amount of Fixed Rate

MMCapSSM (the “Capital Securities”) of First Alliance Capital Trust I




Ladies and Gentlemen:




          In connection with our purchase of the Capital Securities we confirm that:




          1. We understand that the Fixed Rate MMCapSSM (the “Capital Securities”) of
First Alliance Capital Trust I (the “Trust”) (including the guarantee (the
“Guarantee”) of Alliance Capital Partners, LP (the “Company”) executed in
connection therewith) and the 10.25% Fixed Rate Junior Subordinated Deferrable Interest Debentures
due July 25, 2031 of the Company (the “Subordinated Debt Securities”) (the Capital
Securities, the Guarantee and the Subordinated Debt Securities together being referred to herein as
“Offered Securities”), have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), and may not be offered or sold except as permitted in the
following sentence. We agree on our own behalf and on behalf of any investor account for which we
are purchasing the Offered Securities that, if, we decide to offer, sell or otherwise transfer any
such Offered Securities, such offer, sale or transfer will be made only (a) to the Company or the
Trust, (b) pursuant to Rule 144A under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a “QIB”) that purchases for its own account
or for the account of a QIB and to whom notice is given that the transfer is being made in reliance
on Rule 144A, (c) to an “accredited investor” with the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act that is acquiring Offered Securities for its own account
or for the account of such an accredited investor for investment purposes and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation of the Securities
Act, or (d) pursuant to another available exemption from the registration requirements of the
Securities Act, and in each of the foregoing cases in accordance with any applicable state
securities laws and any requirements of law that govern the disposition of our property. The
foregoing restrictions on resale will not apply subsequent to the date on which, in the written
opinion of counsel, the Capital Securities are not “restricted securities” within the meaning of
Rule 144 under the Securities Act. If any resale or other transfer of the Offered Securities is
proposed to be made pursuant to clause (c) or (d) above the transferor shall deliver a letter from
the transferee substantially in the form of this letter to The Bank of New York as Transfer Agent,
which shall






Exhibit B-1









 







provide as applicable, among other things, that the transferee is an “accredited investor”
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act
that is acquiring such Securities for investment purposes and not for distribution in violation of
the Securities Act. We acknowledge on our behalf and on behalf of any investor account for which
we are purchasing Securities that the Trust and the Company reserve the right prior to any offer,
sale or other transfer pursuant to clause (c) or (d) to require the delivery of any opinion of
counsel, certifications and/or other information satisfactory to the Trust and the Company. We
understand that the certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.




          2. We are an “accredited investor” with the meaning of subparagraph (a) (1),
(2), (3) or (7) of Rule 501 under the Securities Act purchasing for our own account or for the
account of such an “accredited investor,” and we are acquiring the Offered Securities for the
investment purposes and not with view to, or for offer or sale in connection with, any distribution
in violation of the Securities Act, and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our investment in the
Offered Securities, and we and any account for which we are acting are each able to bear the
economic risks of our or its investment.




          3. We are acquiring the Offered Securities purchased by us for our own
account (or for one or more accounts as to each of which we exercise sole investment
discretion and have authority to make, and do make, the statements contained in this letter) and
not with a view to any distribution of the Offered Securities, subject, nevertheless, to the
understanding that the disposition of our property will at all times be and remain within our
control.




          4. In the event that we purchase any Capital Securities or any Subordinated
Debt Securities, we will acquire such Capital Securities having an aggregate stated
liquidation amount of not less than $100,000 or such Subordinated Debt Securities having an
aggregate principal amount not less than $100,000, for our own account and for each separate
account for which we are acting.




          5. We acknowledge that we either (A) are not a fiduciary of a pension, profit-
sharing or other employee benefit plan subject to the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”) (a “Plan”), or an entity whose assets include “plan
assets” by reason of any Plan’s investment in the entity and are not purchasing the Offered
Securities on behalf of or with “plan assets” by reason of any Plan’s investment in the entity and
is not purchasing the Offered Securities on behalf of or with “plan assets” of any Plan or (B) are
eligible for the exemptive relief available under one ore more of the following prohibited
transaction class exemptions (“PTCEs”) issued by the U.S. Department of Labor: PTCE 96-23,
95-60, 91-38, 90-1 or 84-14.




          6. We acknowledge that the Trust and the Company and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations, warranties and
agreements and agree that if any of the acknowledgments, representations, warranties and agreements
deemed to have been made by our purchase of the Offered Securities are no longer accurate, we shall
promptly notify the Placement Agents. If we are acquiring any Offered Securities as a fiduciary or
agent for one or more investor accounts, we represent that we have






Exhibit B-2









 







sole discretion with respect to each such investor account and that we have full power to make
the foregoing acknowledgments, representations and agreement on behalf of each such investor
account.




	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	 	 	(Name of Purchaser)	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 

	 	Date:
	 	 
	 	 
	 

	 	 	 	 

	 	 






          Upon transfer of the Offered Securities would be registered in the name of the new beneficial
owner as follows.



Name:               
                 
             



Address:         
                      
          



Taxpayer ID Number:            
        




Exhibit B-3









 





EXHIBIT C




FORM OF TRANSFEROR CERTIFICATE

TO BE EXECUTED FOR QIBS




_____________, [ ]



Alliance Capital Partners, LP



First Alliance Capital Trust I




8100 Nations Way

Jacksonville, Florida 32256





			
	          Re:	 	Purchase of $1,000 stated liquidation amount of Fixed Rate

MMCapSSM (the “Capital Securities”) of First Alliance Capital Trust





          Reference is hereby made to the Amended and Restated Declaration dated as of July 16, 2001
(the “Declaration”) among Robert M. Clements, Gary A. Meeks and Stephen B. Matheson, as
Administrators, The Bank of New York (Delaware), as Delaware Trustee, The Bank of New York, as
Institutional Trustee, Alliance Capital Partners, LP, as Sponsor, and the holders from time to time
of undivided beneficial interest in the assets of First Alliance Capital Trust I. Capitalized
terms used but not defined herein shall have the meanings given them in the Declaration.




          This letter relates to $[      ] aggregate liquidation amount of Capital Securities which are held
in the name of [name of transferor] (the “Transferor”).




          In connection with such request, and in respect to such Capital Securities, the transferor
does hereby certify that such Capital Securities are being transferred in accordance with (i) the
transfer restrictions set forth in the Capital Securities and (ii) Rule 144A under the United
States Securities Act of 1933, as amended (“Rule 144A”), to a transferee that the
Transferor reasonably believes is purchasing the Capital Securities for its own account or an
account with respect to which the transferee exercises sole investment discretion and the
transferee and any such account is a “qualified institutional buyer” within the meaning of Rule
144A, in a transaction meeting the requirements of Rule 144A and in accordance with applicable
securities laws of any state of the United States or any other jurisdiction.




          You are entitled to rely upon this letter and are irrevocably authorized to produce this
letter or a copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.








Exhibit C-1









 








	 	 	 	 	 	 	 	 	 

	 	 	(Name of Transferor)	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Date:	 	 	 	 	 	 
	 	 	 	 	 	 	 










Exhibit C-2









 








GUARANTEE AGREEMENT




ALLIANCE CAPITAL PARTNERS, LP



Dated as of July 16, 2001








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

DEFINITIONS AND INTERPRETATION

	 
	 	 	 	 
	Section 1.1 Definitions and Interpretation
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE

	 
	 	 	 	 
	Section 2.1 Powers and Duties of the Guarantee Trustee
	 	 	4	 
	Section 2.2 Certain Rights of Guarantee Trustee
	 	 	5	 
	Section 2.3 Not Responsible for Recitals or Issuance of Guarantee
	 	 	7	 
	Section 2.4 Events of Default; Waiver
	 	 	7	 
	Section 2.5 Events of Default; Notice
	 	 	7	 
	 
	 	 	 	 
	ARTICLE III

GUARANTEE TRUSTEE

	 
	 	 	 	 
	Section 3.1 Guarantee Trustee; Eligibility
	 	 	8	 
	Section 3.2 Appointment, Removal and Resignation of Guarantee Trustee
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV

GUARANTEE

	 
	 	 	 	 
	Section 4.1 Guarantee
	 	 	9	 
	Section 4.2 Waiver of Notice and Demand
	 	 	9	 
	Section 4.3 Obligations Not Affected
	 	 	10	 
	Section 4.4 Rights of Holders
	 	 	10	 
	Section 4.5 Guarantee of Payment
	 	 	11	 
	Section 4.6 Subrogation
	 	 	11	 
	Section 4.7 Independent Obligations
	 	 	11	 
	Section 4.8 Enforcement
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V

LIMITATION OF TRANSACTIONS; SUBORDINATION

	 
	 	 	 	 
	Section 5.1 Limitation of Transactions
	 	 	12	 
	Section 5.2 Ranking
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VI

TERMINATION

	 
	 	 	 	 
	Section 6.1 Termination
	 	 	13	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE VII

INDEMNIFICATION

	 
	 	 	 	 
	Section 7.1 Exculpation
	 	 	14	 
	Section 7.2 Indemnification
	 	 	14	 
	Section 7.3 Compensation; Reimbursement of Expenses
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VIII

MISCELLANEOUS

	 
	 	 	 	 
	Section 8.1 Successors and Assigns
	 	 	16	 
	Section 8.2 Amendments
	 	 	16	 
	Section 8.3 Notices
	 	 	16	 
	Section 8.4 Benefit
	 	 	17	 
	Section 8.5 Governing Law
	 	 	17	 
	Section 8.6 Counterparts
	 	 	17	 











Annex I - ii









 








GUARANTEE AGREEMENT




          This GUARANTEE AGREEMENT (the “Guarantee”), dated as of July 16, 2001, is executed and
delivered by Alliance Capital Partners, LP, a Delaware limited partnership (the
“Guarantor”), and The Bank of New York, as trustee (the “Guarantee Trustee”), for
the benefit of the Holders (as defined herein) from time to time of the Capital Securities (as
defined herein) of First Alliance Capital Trust I, a Delaware statutory business trust (the
“Issuer”).




          WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the “Declaration”),
dated as of July 16, 2001, among the trustees named therein of the Issuer, Alliance Capital
Partners, LP, as sponsor, and the Holders from time to time of undivided beneficial interests in
the assets of the Issuer, the Issuer is issuing on the date hereof securities, having an aggregate
liquidation amount of up to $15,000,000, designated the 10.25% Fixed Rate MIVICapSSM
(the “Capital Securities”);




          WHEREAS, as incentive for the Holders to purchase the Capital Securities, the Guarantor
desires irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay
to the Holders of Capital Securities the Guarantee Payments (as defined herein) and to make certain
other payments on the terms and conditions set forth herein; and




          NOW, THEREFORE, in consideration of the purchase by each Holder of the Capital Securities,
which purchase the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Guarantee for the benefit of the Holders.




ARTICLE I

DEFINITIONS AND INTERPRETATION




          Section 1.1 Definitions and Interpretation




          In this Guarantee, unless the context otherwise requires:




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




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




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




          (d) all references in this Guarantee to Articles and Sections are to Articles and Sections of
this Guarantee, unless otherwise specified;




          (e) terms defined in the Declaration as at the date of execution of this Guarantee have the
same meanings when used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires; and




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








 









 








          “Beneficiaries” means any Person to whom the Issuer is or hereafter becomes indebted
or liable.




          “Corporate Trust Office” means the office of the Guarantee Trustee at which the
corporate trust business of the Guarantee Trustee shall, at any particular time, be principally
administered, which office at the date of execution of this Guarantee Agreement is located at 101
Barclay Street, Floor 21W, New York, NY 10286.




          “Covered Person” means any Holder of Capital Securities.




          “Debentures” means the junior subordinated debentures of the Guarantor, designated the
10.25% Junior Subordinated Deferrable Interest Debentures due July 25, 2031, held by the
Institutional Trustee (as defined in the Declaration) of the Issuer.




          “Event of Default” has the meaning set forth in Section 2.4.




          “Guarantee Payments” means the following payments or distributions, without
duplication, with respect to the Capital Securities, to the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined in the Declaration) which are required to be
paid on such Capital Securities to the extent the Issuer shall have funds available in the Property
Account (as defined in the Declaration) therefor at such time, (ii) the Redemption Price (as
defined in the Indenture) to the extent the Issuer has funds available in the Property Account
therefor at such time, with respect to any Capital Securities called for redemption by the Issuer,
(iii) the Special Redemption Price (as defined in the Indenture) to the extent the Issuer has funds
available in the Property Account therefor at such time, with respect to Capital Securities called
for redemption upon the occurrence of a Special Event (as defined in the Indenture), and (iv) upon
a voluntary or involuntary liquidation, dissolution, winding-up or termination of the Issuer (other
than in connection with the distribution of Debentures to the Holders of the Capital Securities in
exchange therefor as provided in the Declaration), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on the Capital Securities to the date
of payment, to the extent the Issuer shall have funds available in the Property Account therefor at
such time, and (b) the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer after satisfaction of liabilities to creditors of the Issuer
as required by applicable law (in either case, the “Liquidation Distribution”).




          “Guarantee Trustee” means The Bank of New York , until a Successor Guarantee Trustee
has been appointed and has accepted such appointment pursuant to the terms of this Guarantee and
thereafter means each such Successor Guarantee Trustee.




          “Holder” means any holder, as registered on the books and records of the Issuer, of
any Capital Securities; provided, however, that, in determining whether the holders
of the requisite percentage of Capital Securities have given any request, notice, consent or waiver
hereunder, “Holder” shall not include the Guarantor or any Affiliate of the Guarantor.




          “Indemnified Person” means the Guarantee Trustee, any Affiliate of the Guarantee
Trustee, or any officers, directors, shareholders, members, partners, employees, representatives,
nominees, custodians or agents of the Guarantee Trustee.








2









 








          “Indenture” means the Indenture dated as of July 16, 2001, between the Guarantor and
The Bank of New York, not in its individual capacity but solely as trustee, and any indenture
supplemental thereto pursuant to which the Debentures are to be issued to the Institutional Trustee
of the Issuer.




          “Liquidation Distribution” has the meaning set forth in the definition of “Guarantee
Payments” herein.




          “Majority in liquidation amount of the Capital Securities” means Holder(s) of
outstanding Capital Securities, voting together as a class, but separately from the holders of
Common Securities, of 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, but excluding, the date upon which the voting percentages are determined) of all
Capital Securities then outstanding.




          “Obligations” means any costs, expenses or liabilities (but not including liabilities
related to taxes) of the Issuer, other than obligations of the Issuer to pay to holders of any
Trust Securities the amounts due such holders pursuant to the terms of the Trust Securities.




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




          (a) a statement that each officer signing the Officer’s Certificate has read the



covenant or condition and the definitions relating thereto;




          (b) a brief statement of the nature and scope of the examination or


investigation undertaken by each officer in rendering the Officer’s Certificate;




          (c) a statement that each such officer has made such examination or



investigation as, in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been complied with; and




          (d) a statement as to whether, in the opinion of each such officer, such


condition or covenant has been complied with.




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




          “Responsible Officer” means, with respect to the Guarantee Trustee, any officer within
the Corporate Trust Office of the Guarantee Trustee including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer of the general partner of Guarantee
Trustee, if the Guarantee Trustee is a partnership, or of the Guarantee Trustee, if the Guarantee
Trustee is a corporation, customarily performing functions similar to those performed by any of the
above designated officers and also, with respect to a particular




3









 




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.




          “Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 3.1.




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




ARTICLE II

POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE




          Section 2.1 Powers and Duties of the Guarantee Trustee




          (a) This Guarantee shall be held by the Guarantee Trustee for the benefit of the Holders of
the Capital Securities, and the Guarantee Trustee shall not transfer this Guarantee to any Person
except a Holder of Capital Securities exercising his or her rights pursuant to Section 4.4 (b) or
to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee, The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such vesting and cessation
of title shall be effective whether or not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee Trustee.




          (b) If an Event of Default actually known to a Responsible Officer of the Guarantee Trustee
has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the benefit
of the Holders of the Capital Securities.




          (c) The Guarantee Trustee, before the occurrence of any Event of Default and after curing all
Events of Default that may have occurred, shall undertake to perform only such duties as are
specifically set forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has occurred (that has not
been cured or waived pursuant to Section 2.4) and is actually known to a Responsible Officer of the
Guarantee Trustee, the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee, and use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or her own affairs.




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





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




     (A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee, and the
Guarantee Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Guarantee, and



4









 







no implied covenants or obligations shall be read into this Guarantee
against the Guarantee Trustee; and




     (B) in the absence of bad faith on the part of the Guarantee Trustee,
the Guarantee 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 Guarantee Trustee and conforming
to the requirements of this Guarantee; but in the case of any such
certificates or opinions furnished to the Guarantee Trustee, the Guarantee
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Guarantee;




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




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




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



          Section 2.2 Certain Rights of Guarantee Trustee




          (a) Subject to the provisions of Section 2.1:





          (i) The Guarantee 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 Guarantor contemplated by this Guarantee shall be
sufficiently evidenced by an Officer’s Certificate.




          (iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee shall
deem it desirable that a matter be proved or established before taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other evidence



5









 







is herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officer’s Certificate of the Guarantor which, upon
receipt of such request, shall be promptly delivered by the Guarantor.




          (iv) The Guarantee Trustee shall have no duty to see to any recording, filing or
registration of any instrument (or any rerecording, refiling or registration thereof).




          (v) The Guarantee Trustee may consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters 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 Guarantor or any of its Affiliates and may include any of its employees. The
Guarantee Trustee shall have the right at any time to seek instructions concerning the
administration of this Guarantee from any court of competent jurisdiction.




          (vi) The Guarantee Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Guarantee at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs, expenses (including
attorneys’ fees and expenses and the expenses of the Guarantee 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 Guarantee Trustee;
provided, however, that nothing contained in this Section 2.2(a)(vi) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this Guarantee.




          (vii) The Guarantee 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 Guarantee Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit.




          (viii) The Guarantee Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees, custodians
or attorneys, and the Guarantee 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 Guarantee Trustee or its agents hereunder shall bind the
Holders of the Capital Securities, and the signature of the Guarantee Trustee or its agents
alone shall be sufficient and effective to perform any such action. No third party shall be
required to inquire as to the authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee, both



6









 







of which shall be conclusively evidenced by the Guarantee Trustee’s or its agent’s
taking such action.




          (x) Whenever in the administration of this Guarantee the Guarantee Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request instructions from the
Holders of a Majority in liquidation amount of the Capital Securities, (B) may refrain from
enforcing such remedy or right or taking such other action until such instructions are
received and (C) shall be protected in conclusively relying on or acting in accordance with
such instructions.




          (xi) The Guarantee Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Guarantee.



          (b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the
Guarantee 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
Guarantee 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 Guarantee Trustee shall be construed to be a duty.




          Section 2.3 Not Responsible for Recitals or Issuance of Guarantee




          The recitals contained in this Guarantee shall be taken as the statements of the Guarantor,
and the Guarantee Trustee does not assume any responsibility for their correctness. The Guarantee
Trustee makes no representation as to the validity or sufficiency of this Guarantee:




          Section 2.4 Events of Default; Waiver




          (a) An Event of Default under this Guarantee will occur upon the failure of the Guarantor to
perform, any of its payment or other obligations hereunder.




          (b) The Holders of a Majority in liquidation amount of Capital Securities may, voting or
consenting as a class, on behalf of the Holders of all of the Capital Securities, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of Default shall cease to
exist, and shall be deemed to have been cured, for every purpose of this Guarantee, but no such
waiver shall extend to any subsequent or other default or Event of Default or impair any right
consequent thereon.




          Section 2.5 Events of Default; Notice




          (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders of the Capital Securities, notices of
all Events of Default actually known to a Responsible Officer of the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, however, that
the Guarantee Trustee shall be protected in withholding such




7









 




notice if and so long as a Responsible Officer of the Guarantee Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the Capital Securities.




          (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless
the Guarantee Trustee shall have received written notice from the Guarantor or a Holder of the
Capital Securities (except in the case of a payment default), or a Responsible Officer of the
Guarantee Trustee charged with the administration of this Guarantee shall have obtained actual
knowledge, thereof.




ARTICLE III

GUARANTEE TRUSTEE




          Section 3.1 Guarantee Trustee; Eligibility




          (a) There shall at all times be a Guarantee Trustee which shall:





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




          (ii) be a corporation organized and doing business under the laws of the United States
of America or any State or Territory thereof or of the District of Columbia, or Person
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 3.1(a) (ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published.



          (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
3.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 3.2(c).




          (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee shall either eliminate
such interest or resign to the extent and in the manner provided by, and subject to this Guarantee.




          Section 3.2 Appointment, Removal and Resignation of Guarantee Trustee




          (a) Subject to Section 3.2(b), the Guarantee Trustee may be appointed or removed without cause
at any time by the Guarantor except during an Event of Default.




          (b) The Guarantee Trustee shall not be removed in accordance with Section 3.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.







8









 








          (c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may
resign from office (without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take
effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by
an instrument in writing executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee.




          (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 3.2 within 60 days after delivery of an instrument of removal or
resignation, the Guarantee Trustee resigning or being removed may petition any court of competent
jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.




          (e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor
Guarantee Trustee.




          (f) Upon termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 3.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing to
the Guarantee Trustee under Sections 7.2 and 7.3 accrued to the date of such termination, removal
or resignation.




ARTICLE IV

GUARANTEE




          Section 4.1 Guarantee




          (a) The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by the Issuer), as and when
due, regardless of any defense (except as defense of payment by the Issuer), right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor’s obligation to make a Guarantee
Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders
or by causing the Issuer to pay such amounts to the Holders.




          (b) The Guarantor hereby also agrees to assume any and all Obligations of the Issuer and in
the event any such Obligation is not so assumed, subject to the terms and conditions hereof, the
Guarantor hereby irrevocably and unconditionally guarantees to each Beneficiary the full payment,
when and as due, of any and all obligations to such Beneficiaries. This Agreement is intended to
be for the Beneficiaries who have received notice hereof.




          Section 4.2 Waiver of Notice and Demand




          The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to require a proceeding
first against the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.







9









 








          Section 4.3 Obligations Not Affected




          The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall
in no way be affected or impaired by reason of the happening from time to time of any of the
following:




          (a) the release or waiver, by operation of law or otherwise, of the performance or observance
by the Issuer of any express or implied agreement, covenant, term or condition relating to the
Capital Securities to be performed or observed by the Issuer;




          (b) the extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Special Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Capital Securities or the extension of time for the performance
of any other obligation under, arising out of, or in connection with, the Capital Securities (other
than an extension of time for payment of Distributions, Redemption Price, Special Redemption Price,
Liquidation Distribution or other sum payable that results from the extension of any interest
payment period on the Debentures or any extension of the maturity date of the Debentures permitted
by the Indenture);




          (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce,
assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the
terms of the Capital Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;




          (d) the voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the
Issuer or any of the assets of the Issuer;




          (e) any invalidity of, or defect or deficiency in, the Capital Securities;




          (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or




          (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a guarantor, it being the intent of this Section 4.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.




          There shall be no obligation of the Holders to give notice to, or obtain consent of, the
Guarantor with respect to the happening of any of the foregoing.




          Section 4.4 Rights of Holders




          (a) The Holders of a Majority in liquidation amount of the Capital Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee; provided, however,




10









 




that (subject to Sections 2.1 and 2.2) the Guarantee Trustee shall have the right to decline
to follow any such direction if the Guarantee Trustee shall determine that the actions so directed
would be unjustly prejudicial to the Holders not taking part in such direction or if the Guarantee
Trustee being advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if the Guarantor Trustee in good faith by its board of directors or trustees,
executive committees or a trust committee of directors or trustees and for Responsible Officers
shall determine that the action or proceedings so directed would involve the Guarantee Trustee in
personal liability.




          (b) Any Holder of Capital Securities may institute a legal proceeding directly against the
Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee, without first instituting
a legal proceeding against the Issuer, the Guarantee Trustee or any other Person. The Guarantor
waives any right or remedy to require that any such action be brought first against the Issuer, the
Guarantee Trustee or any other Person before so proceeding directly against the Guarantor.




          Section 4.5 Guarantee of Payment




          This Guarantee creates a guarantee of payment and not of collection.




          Section 4.6 Subrogation




          The Guarantor shall be subrogated to all (if any) rights of the Holders of Capital Securities
against the Issuer in respect of any amounts paid to such Holders by the Guarantor under this
Guarantee; provided, however, that the Guarantor shall not (except to the extent
required by applicable provisions of law) be entitled to enforce or exercise any right that it may
acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a
result of payment under this Guarantee, if, after giving effect to any such payment, any amounts
are of and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.




          Section 4.7 Independent Obligations




          The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Capital Securities and that the Guarantor shall be liable as
principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee notwithstanding the occurrence of any event referred to in subsections (a) through (g),
inclusive, of Section 4.3 hereof.




          Section 4.8 Enforcement




          A Beneficiary may enforce the obligations of the Guarantor contained in Section 4.1(b)
directly against the Guarantor, and the Guarantor waives any right or remedy to require that any
action be brought against the Issuer or any other person or entity before proceeding against the
Guarantor.








11









 








          The Guarantor shall be subrogated to all rights (if any) of any Beneficiary against the Issuer
in respect of any amounts paid to the Beneficiaries by the Guarantor under this Guarantee;
provided, however, that the Guarantor shall not (except to the extent required by
applicable provisions of law) be entitled to enforce or exercise any rights that it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if, after giving effect to such payment, any amounts are due and
unpaid under this Guarantee.




ARTICLE V

LIMITATION OF TRANSACTIONS; SUBORDINATION




          Section 5.1 Limitation of Transactions




          So long as any Capital Securities remain outstanding, if (a) there shall have occurred and be
continuing an Event of Default or (b) the Guarantor shall have selected an Extension Period as
provided in the Declaration and such period, or any extension thereof, shall have commenced and be
continuing, then (A) if the Guarantor is a limited partnership, it may not (x) declare or pay any
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the partnership interests of the Guarantor or (y) make any payment of principal of or interest
or premium, if any, on or repay, repurchase or redeem any debt securities of the Guarantor that
rank pari passu in all respects with or junior in interest to the Debentures (other than (i)
payments under this Guarantee, (ii) repurchases, redemptions or other acquisitions of partnership
interests of the Guarantor in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers or consultants, in
connection with a equity reinvestment or equity purchase plan or in connection with the issuance of
partnership interests of the Guarantor (or securities convertible into or exercisable for such
partnership interests) as consideration in an acquisition transaction entered into prior to
occurrence of the Event of Default or the applicable Extension Period, (iii) as a result of any
exchange or conversion of any class or series of the partnership interests of the Guarantor (or any
equity securities of a subsidiary of the Guarantor) for any class or series of the partnership
interests of the Guarantor or of any class or series of the Guarantor’s indebtedness for any class
or series of the partnership interests of the Guarantor), (iv) the purchase of fractional interests
in partnership interests of the Guarantor pursuant to the conversion or exchange provisions of such
partnership interests or the partnership interests being converted or exchanged, (v) any
distribution in connection with any equity rights plan, or the issuance of rights, stock or other
property under any equity rights plan, or the redemption or repurchase of rights pursuant thereto,
or (vi) any distribution in the form of partnership interests, warrants, options or other rights
where the distributed partnership interests or the partnership interests issuable upon exercise of
such warrants, options or other rights are of the same class or series of partnership interests as
that on which the distribution is being made or ranks parri passu with or junior to such class or
series of partnership interests), or (B) if the Guarantor is a corporation, it may not (x) declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Guarantor’s capital stock or make any payment of principal of
or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the
Guarantor that rank parri passu in all respects with or junior in interest to the Debentures (other
than (i) payments under this Guarantee, (ii) repurchases, redemptions or other acquisitions of
shares of capital stock of the Guarantor in connection with






12









 







any employment contract, benefit plan or other similar arrangement with or for the benefit of
one or more employees, officers, directors, or consultants, in connection with a dividend
reinvestment or stockholder stock purchase plan or in connection with the issuance of capital stock
of the Guarantor (or securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to occurrence of the Event of
Default or the applicable Extension Period, (iii) as a result of any exchange of conversion of any
class or series of the Guarantor’s capital stock (or any capital stock of a subsidiary of the
Guarantor) for any class or series of the Guarantor’s capital stock or of any class or series of
the Guarantor’s indebtedness for any class or series of the Guarantor’s capital stock, (iv) the
purchase of fractional interests in shares of the Guarantor’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being converted or
exchanged, (v) any declaration of a dividend in connection with any stockholder’s rights plan, or
the issuance of rights, stock or other property under any stockholder’s rights plan, or the
redemption or repurchase of rights pursuant thereto, or (vi) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock).




          Section 5.2 Ranking




          This Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all present and future Senior Indebtedness (as
defined in the Indenture) of the Guarantor. By their acceptance thereof, each Holder of Capital
Securities agrees to the foregoing provisions of this Guarantee and the other terms set forth
herein.




          The right of the Guarantor to participate in any distribution of assets of any of its
subsidiaries upon any such subsidiary’s liquidation or reorganization or otherwise is subject to
the prior claims of creditors of that subsidiary, except to the extent the Guarantor may itself be
recognized as a creditor of that subsidiary. Accordingly, the Guarantor’s obligations under this
Guarantee will be effectively subordinated to all existing and future liabilities of the
Guarantor’s subsidiaries, and claimants should look only to the assets of the Guarantor for
payments thereunder. This Guarantee does not limit the incurrence or issuance of other secured or
unsecured debt of the Guarantor, including Senior Indebtedness of the Guarantor, under any
indenture or agreement that the Guarantor may enter into in the future or otherwise.




ARTICLE VI

TERMINATION




          Section 6.1 Termination




          This Guarantee shall terminate as to the Capital Securities (i) upon full payment of the
Redemption Price or the Special Redemption Price, as the case may be, of all Capital Securities
then outstanding, (ii) upon the distribution of all of the Debentures to the Holders of all of the
Capital Securities or (iii) upon full payment of the amounts payable in accordance with the
Declaration upon dissolution of the Issuer. This Guarantee will continue to be effective or






13









 







will be reinstated, as the case may be, if at any time any Holder of Capital Securities must
restore payment of any sums paid under the Capital Securities or under this Guarantee.




ARTICLE VII

INDEMNIFICATION




          Section 7.1 Exculpation




          (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise
to the Guarantor 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 in accordance with this
Guarantee and in a manner that such Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Indemnified Person by this Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such
Indemnified Person’s negligence 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 Issuer or the Guarantor and upon such information, opinions, reports or statements presented
to the Issuer or the Guarantor by any Person as to matters the Indemnified Person reasonably
believes are within such other Person’s professional or expert competence and who, if selected by
such Indemnified Person, has been selected with reasonable care by such Indemnified Person,
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 Capital Securities might properly be paid.




          Section 7.2 Indemnification




          (a) The Guarantor agrees to indemnify each Indemnified Person for, and to hold each
Indemnified Person harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or willful misconduct on the part of the Indemnified Person, arising out of or
in connection with the acceptance or administration of the trust or trusts hereunder, including but
not limited to the costs and expenses (including reasonable legal fees and expenses) of the
Indemnified Person defending itself against, or investigating, any claim or liability in connection
with the exercise or performance of any of the Indemnified Person’s powers or duties hereunder.
The obligation to indemnify as set forth in this Section 7.2 shall survive the resignation or
removal of the Guarantee Trustee and the termination of this Guarantee.




          (b) Promptly after receipt by an Indemnified Person under this Section 7.2 of notice of the
commencement of any action, such Indemnified Person will, if a claim in respect thereof is to be
made against the Guarantor under this Section 7.2, notify the Guarantor in writing of the
commencement thereof; but the failure so to notify the Guarantor (i) will not relieve the Guarantor
from liability under paragraph (a) above unless and to the extent that the Guarantor did not
otherwise learn of such action and such failure results in the forfeiture by the Guarantor of
substantial rights and defenses and (ii) will not, in any event, relieve the Guarantor




14









 




from any obligations to any Indemnified Person other than the indemnification obligation
provided in paragraph (a) above. The Guarantor shall be entitled to appoint counsel of the
Guarantor’s choice at the Guarantor’s expense to represent the Indemnified Person in any action for
which indemnification is sought (in which case the Guarantor shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the Indemnified Person or Persons
except as set forth below); provided, however, that such counsel shall be
satisfactory to the Indemnified Person. Notwithstanding the Guarantor’s election to appoint
counsel to represent the Guarantor in an action, the Indemnified Person shall have the right to
employ separate counsel (including local counsel), and the Guarantor shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the Guarantor
to represent the Indemnified Person would present such counsel with a conflict of interest, (ii)
the actual or potential defendants in, or targets of, any such action include both the Indemnified
Person and the Guarantor and the Indemnified Person shall have reasonably concluded that there may
be legal defenses available to it and/or other Indemnified Person which are different from or
additional to those available to the Guarantor, (iii) the Guarantor shall not have employed counsel
satisfactory to the Indemnified Person to represent the Indemnified Person within a reasonable time
after notice of the institution of such action or (iv) the Guarantor shall authorize the
Indemnified Person to employ separate counsel at the expense of the Guarantor. The Guarantor will
not, without the prior written consent of the Indemnified Persons, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or
not the Indemnified Persons are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each Indemnified Person from
all liability arising out of such claim, action, suit or proceeding.




          Section 7.3 Compensation; Reimbursement of Expenses




          The Guarantor agrees:




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




          (b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made by it in
accordance with any provision of this Guarantee (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or willful misconduct.




          The provisions of this Section 7.3 shall survive the resignation or removal of the Guarantee
Trustee and the termination of this Guarantee.




15









 





ARTICLE VIII

MISCELLANEOUS




          Section 8.1 Successors and Assigns




          All guarantees and agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Capital Securities then outstanding. Except in connection with any merger or
consolidation of the Guarantor with or into another entity or any sale, transfer or lease of the
Guarantor’s assets to another entity, in each case, to the extent permitted under the Indenture,
the Guarantor may not assign its rights or delegate its obligations under this Guarantee without
the prior approval of the Holders of at least a Majority in liquidation amount of the Capital
Securities.




          Section 8.2 Amendments




          Except with respect to any changes that do not adversely affect the rights of Holders of the
Capital Securities in any material respect (in which case no consent of Holders will be required),
this Guarantee may be amended only with the prior approval of the Holders of not less than a
Majority in liquidation amount of the Capital Securities. The provisions of the Declaration with
respect to amendments thereof shall apply equally with respect to amendments of the Guarantee.




          Section 8.3 Notices




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




          (a) If given to the Guarantee Trustee, at the Guarantee Trustee’s mailing
address set forth below (or such other address as the Guarantee Trustee may give notice of to
the Holders of the Capital Securities):



The Bank of New York

101 Barclay Street, Floor 21W

New York, NY 10286

Attention: Corporate Trust Administration

Telecopy: (212) 815-5915




          (b) If given to the Guarantor, at the Guarantor’s mailing address set forth below (or such
other address as the Guarantor may give notice of to the Holders of the Capital Securities and to
the Guarantee Trustee):



Alliance Capital Partners, LP

8100 Nations Way

Jacksonville, Florida 33256

Attention: Stephen B. Matheson

Telecopy: (904) 281-6443




16









 





          (c) If given to any Holder of the Capital Securities, at the address set forth on the books
and records of the Issuer.




          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 8.4 Benefit




          This Guarantee is solely for the benefit of the Holders of the Capital Securities and, subject
to Section 2.1(a), is not separately transferable from the Capital Securities.




          Section 8.5 Governing Law




          THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.




          Section 8.6 Counterparts




          This Guarantee may contain more than one counterpart of the signature page and this Guarantee
may be executed by the affixing of the signature of the Guarantor and the Guarantee Trustee to any
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.




17









 





     THIS GUARANTEE is executed as of the day and year first above written.



	 	 	 	 	 
	 	ALLIANCE CAPITAL PARTNERS, LP, as 

     Guarantor

 	 
	 	By:  	Alliance Capital Partners, Inc., the sole

      general partner
 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	Robert M. Clements 	 
	 	 	Title:  	President and Chief Executive
Officer 	 
	 
	 	THE BANK OF NEW YORK

     as Guarantee Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 







 









 








ALLIANCE CAPITAL PARTNERS, LP




as Issuer



INDENTURE



Dated as of July 16, 2001



THE BANK OF NEW YORK



as Trustee



JUNIOR SUBORDINATED DEBT SECURITIES



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

DEFINITIONS

	 
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

DEBT SECURITIES

	 
	 	 	 	 
	Section 2.01 Authentication and Dating
	 	 	8	 
	Section 2.02 Form of Trustee’s Certificate of Authentication
	 	 	9	 
	Section 2.03 Form and Denomination of Debt Securities
	 	 	9	 
	Section 2.04 Execution of Debt Securities
	 	 	10	 
	Section 2.05 Exchange and Registration of Transfer of Debt Securities
	 	 	10	 
	Section 2.06 Mutilated, Destroyed, Lost or Stolen Debt Securities
	 	 	13	 
	Section 2.07 Temporary Debt Securities
	 	 	14	 
	Section 2.08 Payment of Interest
	 	 	14	 
	Section 2.09 Cancellation of Debt Securities Paid, etc.
	 	 	15	 
	Section 2.10 Computation of Interest
	 	 	16	 
	Section 2.11 Extension of Interest Payment Period
	 	 	16	 
	Section 2.12 CUSIP Numbers
	 	 	16	 
	 
	 	 	 	 
	ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY

	 
	 	 	 	 
	Section 3.01 Payment of Principal, Premium and Interest; Agreed Treatment of the Debt Securities
	 	 	17	 
	Section 3.02 Offices for Notices and Payments, etc.
	 	 	17	 
	Section 3.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	18	 
	Section 3.04 Provision as to Paying Agent
	 	 	18	 
	Section 3.05 Certificate to Trustee
	 	 	19	 
	Section 3.06 Additional Interest
	 	 	19	 
	Section 3.07 Compliance with Consolidation Provisions
	 	 	20	 
	Section 3.08 Limitation on Dividends and Distributions
	 	 	20	 
	Section 3.09 Covenants as to the Trust
	 	 	21	 
	 
	 	 	 	 
	ARTICLE IV

LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE

	 
	 	 	 	 
	Section 4.01 Securityholders’ Lists
	 	 	21	 
	Section 4.02 Preservation and Disclosure of Lists
	 	 	22	 






i









 






	 	 	 	 	 
	 	 	Page	 
	ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT

	 
	 	 	 	 
	Section 5.01 Events of Default
	 	 	23	 
	Section 5.02 Payment of Debt Securities on Default; Suit Therefor
	 	 	25	 
	Section 5.03 Application of Moneys Collected by Trustee
	 	 	26	 
	Section 5.04 Proceedings by Securityholders
	 	 	26	 
	Section 5.05 Proceedings by Trustee
	 	 	27	 
	Section 5.06 Remedies Cumulative and Continuing
	 	 	27	 
	Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders
	 	 	27	 
	Section 5.08 Notice of Defaults
	 	 	28	 
	Section 5.09 Undertaking to Pay Costs
	 	 	28	 
	 
	 	 	 	 
	ARTICLE VI

CONCERNING THE TRUSTEE

	 
	 	 	 	 
	Section 6.01 Duties and Responsibilities of Trustee
	 	 	29	 
	Section 6.02 Reliance on Documents, Opinions, etc.
	 	 	30	 
	Section 6.03 No Responsibility for Recitals, etc.
	 	 	31	 
	Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt Securities
	 	 	31	 
	Section 6.05 Moneys to be Held in Trust
	 	 	31	 
	Section 6.06 Compensation and Expenses of Trustee
	 	 	32	 
	Section 6.07 Officers’ Certificate as Evidence
	 	 	32	 
	Section 6.08 Eligibility of Trustee
	 	 	33	 
	Section 6.09 Resignation or Removal of Trustee
	 	 	33	 
	Section 6.10 Acceptance by Successor Trustee
	 	 	34	 
	Section 6.11 Succession by Merger, etc.
	 	 	35	 
	Section 6.12 Authenticating Agents
	 	 	36	 
	 
	 	 	 	 
	ARTICLE VII

CONCERNING THE SECURITYHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 7.01 Action by Securityholders
	 	 	37	 
	Section 7.02 Proof of Execution by. Securityholders
	 	 	38	 
	Section 7.03 Who Are Deemed Absolute Owners
	 	 	38	 
	Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding
	 	 	38	 
	Section 7.05 Revocation of Consents; Future Holders Bound
	 	 	39	 
	 
	 	 	 	 
	ARTICLE VIII

SECURITYHOLDERS’ MEETINGS

	 
	 	 	 	 
	Section 8.01 Purposes of Meetings
	 	 	39	 
	Section 8.02 Call of Meetings by Trustee
	 	 	39	 
	Section 8.03 Call of Meetings by Company or Securityholders
	 	 	40	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	Section 8.04 Qualifications for Voting
	 	 	40	 
	Section 8.05 Regulations
	 	 	40	 
	Section 8.06 Voting
	 	 	41	 
	Section 8.07 Quorum; Actions
	 	 	41	 
	 
	 	 	 	 
	ARTICLE IX

SUPPLEMENTAL INDENTURES

	 
	 	 	 	 
	Section 9.01 Supplemental Indentures without Consent of Securityholders
	 	 	42	 
	Section 9.02 Supplemental Indentures with Consent of Securityholders
	 	 	43	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	44	 
	Section 9.04 Notation on Debt Securities
	 	 	44	 
	Section 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee
	 	 	45	 
	 
	 	 	 	 
	ARTICLE X

REDEMPTION OF SECURITIES

	 
	 	 	 	 
	Section 10.01 Optional Redemption
	 	 	45	 
	Section 10.02 Special Event Redemption
	 	 	45	 
	Section 10.03 Notice of Redemption; Selection of Debt Securities
	 	 	45	 
	Section 10.04 Payment of Debt Securities Called for Redemption
	 	 	46	 
	 
	 	 	 	 
	ARTICLE XI

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE

	 
	 	 	 	 
	Section 11.01 Company May Consolidate, etc., on Certain Terms
	 	 	47	 
	Section 11.02 Successor Entity to be Substituted
	 	 	47	 
	Section 11.03 Opinion of Counsel to be Given to Trustee
	 	 	48	 
	 
	 	 	 	 
	ARTICLE XII

SATISFACTION AND DISCHARGE OF INDENTURE

	 
	 	 	 	 
	Section 12.01 Discharge of Indenture
	 	 	48	 
	Section 12.02 Deposited Moneys to be Held in Trust by Trustee
	 	 	48	 
	Section 12.03 Paying Agent to Repay Moneys Held
	 	 	49	 
	Section 12.04 Return of Unclaimed Moneys
	 	 	49	 
	 
	 	 	 	 
	ARTICLE XIII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, PARTNERS,

OFFICERS AND DIRECTORS

	 
	 	 	 	 
	Section 13.01 Indenture and Debt Securities Solely Company Obligations
	 	 	49	 
	 
	 	 	 	 
	ARTICLE XIV

MISCELLANEOUS PROVISIONS

	 
	 	 	 	 
	Section 14.01 Successors
	 	 	49	 






iii









 






	 	 	 	 	 
	 	 	Page	 
	Section 14.02 Official Acts by Successor Entity
	 	 	50	 
	Section 14.03 Surrender of Company Powers
	 	 	50	 
	Section 14.04 Addresses for Notices, etc.
	 	 	50	 
	Section 14.05 Governing Law
	 	 	50	 
	Section 14.06 Evidence of Compliance with Conditions Precedent
	 	 	50	 
	Section 14.07 Non-Business Days
	 	 	51	 
	Section 14.08 Table of Contents, Headings, etc.
	 	 	51	 
	Section 14.09 Execution in Counterparts
	 	 	51	 
	Section 14.10 Separability
	 	 	51	 
	Section 14.11 Assignment
	 	 	51	 
	Section 14.12 Acknowledgment of Rights
	 	 	51	 
	 
	 	 	 	 
	ARTICLE XV

SUBORDINATION OF DEBT SECURITIES

	 
	 	 	 	 
	Section 15.01 Agreement to Subordinate
	 	 	52	 
	Section 15.02 Default on Senior Indebtedness
	 	 	52	 
	Section 15.03 Liquidation; Dissolution; Bankruptcy
	 	 	53	 
	Section 15.04 Subrogation
	 	 	54	 
	Section 15.05 Trustee to Effectuate Subordination
	 	 	55	 
	Section 15.06 Notice by the Company
	 	 	55	 
	Section 15.07 Rights of the Trustee; Holders of Senior Indebtedness
	 	 	56	 
	Section 15.08 Subordination May Not Be Impaired
	 	 	56	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A FORM OF DEBT SECURITY
	 	 	 	 






iv









 





          THIS INDENTURE, dated as of July 16, 2001, between Alliance Capital Partners, LP, a Delaware
limited partnership (hereinafter sometimes called the “Company”), and The Bank of New York
as trustee (hereinafter sometimes called the “Trustee”).




WITNESSETH:




          WHEREAS, for its lawful purposes, the Company has duly authorized the issuance of its 10.25%
Junior Subordinated Deferrable Interest Debentures due July 25, 2031 (the “Debt
Securities”) under this Indenture and to provide, among other things, for the execution and
authentication, delivery and administration thereof, the Company has duly authorized the execution
of this Indenture; and




          WHEREAS, all acts and things necessary to make this Indenture a valid agreement according to
its terms, have been done and performed;




          NOW, THEREFORE, This Indenture Witnesseth:




          In consideration of the premises, and the purchase of the Debt Securities by the holders
thereof, the Company covenants and agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Debt Securities as follows:




ARTICLE I

DEFINITIONS




          Section 1.01 Definitions.




          The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this Section 1.01. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the term “generally accepted
accounting principles” means such accounting principles as are generally accepted at the time of
any computation. The words “herein,” “hereof’ and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.




          “Additional Interest” shall have the meaning set forth in Section 3.06.




          “Authenticating Agent” means any agent or agents of the Trustee which at the time
shall be appointed and acting pursuant to Section 6.12.




          “Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for
the relief of debtors.




          “Board of Directors” means the board of directors or the executive committee or any
other duly authorized designated officers of the Company.




 









 





          “Board Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification and delivered to the Trustee.




          “Business Day” means any day other than a Saturday, Sunday or any other day on which
banking institutions in New York City or Jacksonville, Florida are permitted or required by any
applicable law to close.




          “Capital Securities” means undivided beneficial interests in the assets of the Trust
which rank pari passu with Common Securities issued by the Trust; provided,
however, that if an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in respect of distributions
and payments upon liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.




          “Capital Securities Guarantee” means the guarantee that the Company will enter into
with The Bank of New York or other Persons that operates directly or indirectly for the benefit of
holders of Capital Securities of the Trust.




          “Capital Treatment Event” means the receipt by the Company and the Trust of an opinion
of counsel experienced in such matters to the effect that, as a result of the occurrence of any (a)
amendment to, or change in, the laws, rules or regulations of the United States -or any
political subdivision thereof or therein, or any rules, guidelines or policies of an applicable
regulatory authority for the Company or (b) any official or administrative pronouncement or action
or judicial decision interpreting or applying such laws, rules or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on or after the date of
original issuance of the Debt Securities, there is more than an insubstantial risk that the Company
will not, within 90 days of the date of such opinion, be entitled to treat an amount equal to the
aggregate Liquidation Amount of the Capital Securities as “Tier l Capital” (or its then equivalent
if the Company were subject to such capital requirement) applied as if the Company (or its
successors) were a bank holding company for purposes of capital adequacy guidelines of the Federal
Reserve (or any successor regulatory authority with jurisdiction over bank holding companies), or
any capital adequacy guidelines as then in effect and applicable to the Company; provided,
however, that the distribution of the Debt Securities in connection with the Liquidation of
the Trust by the Company shall not in and of itself constitute a Capital Treatment Event unless
such Liquidation shall have occurred in connection with a Tax Event or an Investment Company Event.




          “Certificate” means a certificate signed by any one of the principal executive
officer, the principal financial officer or the principal accounting officer of the Company.




          “Common Securities” means undivided beneficial interests in the assets of the Trust
which rank pari passu with Capital Securities issued by the Trust; provided,
however, that if an Event of Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of such Common Securities to payment in respect of distributions
and payments upon liquidation, redemption and otherwise are subordinated to the rights of holders
of such Capital Securities.








2









 








          “Company” means Alliance Capital Partners, LP, a Delaware limited partnership, and,
subject to the provisions of Article XI, shall include its successors and assigns.




          “Comparable Treasury Issue” means with respect to any Special Redemption Date, the
United States Treasury security selected by the Quotation Agent as having a maturity comparable to
the Remaining Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of debt securities of comparable maturity to
the Remaining Life. If no United States Treasury security has a maturity which is within a period
from three months before to three months after July 25, 2006, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury Issue, and the Treasury
Rate shall be interpolated or extrapolated on a straight-line basis, rounding to the nearest month
using such securities,




          “Comparable Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such Quotations.




          “Debt Security” or “Debt Securities” has the meaning stated in the first
recital of this Indenture.




          “Debt Security Register” has the meaning specified in Section 2.05.




          “Declaration” means the Amended and Restated Declaration of Trust of the Trust, as
amended or supplemented from time to time.




          “Default” means any event, act or condition that with notice or lapse of time, or
both, would constitute an Event of Default.




          “Defaulted Interest” has the meaning set forth in Section 2.08.




          “Deferred Interest” has the meaning set forth in Section 2.11.




          “Event of Default” means any event specified in Section 5.01, which has continued for
the period of time, if any, and after the giving of the notice, if any, therein designated.




          “Extension Period” has the meaning set forth in Section 2.11.




          “Federal Reserve” means the Board of Governors of the Federal Reserve System.




          “Indenture” means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented, or both.




          “Institutional Trustee” has the meaning set forth in the Declaration.




          “Interest Payment Date” means January 25th and July 25th of each
year, commencing on January 25, 2002, during the term of this Indenture.








3









 








          “Interest Rate” means 10.25% per annum.




          “Investment Company Event” means the receipt by the Company and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result of the occurrence of
a change in law or regulation or written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory authority, there is
more than an insubstantial risk that the Trust is or, within 90 days of the date of such opinion
will be, considered an “investment company” that is required to be registered under the Investment
Company Act of 1940, as amended, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original issuance of the Debt
Securities.




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




          “Maturity Date” means July 25, 2031.




          “OTS” means the Office of Thrift Supervision.




          “Officers’ Certificate” means a certificate signed by the Chairman of the Board of
Directors, the Vice Chairman, the President or any Vice President, and by the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller, the
Secretary or an Assistant Secretary of the general partner of the Company, if the
-Company is a limited partnership, or of the Company, if the Company is a corporation,
and delivered to the Trustee. Each such certificate shall include the statements provided for in
Section 14.06 if and to the extent required by the provisions of such Section.




          “Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be
an employee of or counsel to the Company, or may be other counsel satisfactory to the Trustee.
Each such opinion shall include the statements provided for in Section 14.06 if and to the extent
required by the provisions of such Section.




          The term “outstanding,” when used with reference to Debt Securities, subject to the provisions
of Section 7.04, means, as of any particular time, all Debt Securities authenticated and delivered
by the Trustee or the Authenticating Agent under this Indenture, except




          (a) Debt Securities theretofore canceled by the Trustee or the Authenticating Agent or
delivered to the Trustee for cancellation;




          (b) Debt Securities, or portions thereof, for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated in trust by the Company (if
the Company shall act as its own paying agent); provided that, if such Debt Securities, or
portions thereof, are to be redeemed prior to maturity thereof, notice of such redemption shall
have been given as provided in Articles Ten and Fourteen or provision satisfactory to the Trustee
shall have been made for giving such notice; and




          (c) Debt Securities paid pursuant to Section 2.06 or in lieu of or in substitution for which
other Debt Securities shall have been authenticated and delivered pursuant




4









 




to the terms of Section 2.06 unless proof satisfactory to the Company and the Trustee is
presented that any such Debt Securities are held by bona fide holders in due course.




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




          “Predecessor Security” of any particular Debt Security means every previous Debt
Security evidencing all or a portion of the same debt as that evidenced by such particular Debt
Security; and, for the purposes of this definition, any Debt Security authenticated and delivered
under Section 2.06 in lieu of a lost, destroyed or stolen Debt Security shall be deemed to evidence
the same debt as the lost, destroyed or stolen Debt Security.




          “Primary Treasury Dealer” means a primary United States Government securities dealer
in New York City.




          “Principal Office of the Trustee,” or other similar term, means the office of the
Trustee, at which at any particular time its corporate trust business shall be principally
administered, which at all times shall be located within the United States and at the time of the
execution of this Indenture shall be 101 Barclay Street, Floor 21 West, New York, NY 10286.




          “Quotation Agent” means Salomon Smith Barney Inc. and its successors;
provided, however, that if the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.




          “Redemption Date” has the meaning set forth in Section 10.01.




          “Redemption Price” means the price set forth in the following table for any Redemption
Date or Special Redemption Date that occurs within the twelve-month period beginning in the
relevant date indicated below, expressed in percentage of the principal amount of the Debt
Securities being redeemed:




	 	 	 	 	 
	                Year	 	Percentage
	July 25, 2006
	 	 	107.6875	%
	July 25, 2007
	 	 	106.1500	%
	July 25, 2008
	 	 	104.6125	%
	July 25, 2009
	 	 	103.0750	%
	July 25, 2010
	 	 	101.5375	%
	July 25, 2011 and after
	 	 	100.0000	%





plus accrued and unpaid interest on such Debt Securities to the Redemption Date or, in the case of
a redemption due to the occurrence of a Special Event, to the Special Redemption Date.




          “Reference Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the Company.








5









 








          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the Quotation Agent, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such Special Redemption Date.




          “Remaining Life” means, with respect to any Debt Security, the period from the Special
Redemption Date for such Debt Security to July 25, 2006.




          “Responsible Officer” means, with respect to the Trustee, any officer within the
Principal Office of the Trustee, including any vice-president, any assistant vice-president, any
secretary, any assistant secretary, the treasurer, any assistant treasurer, any trust officer or
other officer of the Principal Trust Office of the Trustee customarily performing functions similar
to those performed by any of the above designated officers 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.




          “Securityholder,” “holder of Debt Securities” or other similar terms, means
any Person in whose name at the time a particular Debt Security is registered on the Debt Security
Register.




          “Senior Indebtedness” means, with respect to the Company, (i) the principal, premium,
if any, and interest in respect of (A) indebtedness of the Company for money borrowed and (B)
indebtedness evidenced by securities, debentures, notes, bonds or other similar instruments issued
by the Company; (ii) all capital lease obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all conditional sale
obligations of the Company and all obligations of the Company under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of business); (iv) all
obligations of the Company for the reimbursement of any letter of credit, any banker’s acceptance,
any security purchase facility, any repurchase agreement or similar arrangement, any interest rate
swap, any other hedging arrangement, any obligation under options or any similar credit or other
transaction; (v) all obligations of the type referred to in clauses (i) through (iv) above of other
Persons for the payment of which the Company is responsible or liable as obligor, guarantor or
otherwise; and (vi) all obligations of the type referred to in clauses (i) through (v) above of
other Persons secured by any lien on any property or asset of the Company (whether or not such
obligation is assumed by the Company), whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, with the prior approval of the OTS if not otherwise generally
approved, in the instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such obligations are not superior or are pari passu in right of
payment to the Debt Securities.




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




          “Special Redemption Date” has the meaning set forth in 10.02.








6









 








          “Special Redemption Price” means (1) if the Special Redemption Date is before July 25,
2006, the greater of (a) 100% of the principal amount of the Debt Securities being redeemed
pursuant to Section 10.02 or (b) as determined by a Quotation Agent, the sum of the present values
of the principal amount and the premium payable as part of the Redemption Price with respect to a
redemption as of July 25, 2006 together with the present value of scheduled payments of interest
over the Remaining Life of such Debt Securities, discounted to the Special Redemption Date on a
semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate
plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid interest on such Debt
Securities to the Special Redemption Date and (2) if the Special Redemption Date is on or after
July 25, 2006, the Redemption Price for such Special Redemption Date.




          “Subsidiary” means, with respect to any Person, (i) any corporation at least a
majority of the outstanding voting stock of which is owned, directly or indirectly, by such Person
or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, (ii)
any general partnership, joint venture or similar entity, at least a majority of the outstanding
partnership or similar interests of which shall at the time be owned by such Person, or by one or
more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, and (iii) any
limited partnership of which such Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, “voting stock” means shares, interests, participations or other
equivalents in the equity interest (however designated) in such Person having ordinary voting power
for the election of a majority of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such power only by reason of the
occurrence of a contingency.




          “Tax Event” means the receipt by the Company and the Trust of an opinion of counsel
experienced in such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter ruling, technical advice
memorandum, regulatory procedure, notice or announcement (an “Administrative Action”)) or
judicial decision interpreting or applying such laws or regulations, regardless of whether such
Administrative Action or judicial decision is issued to or in connection with a proceeding
involving the Company or the Trust and whether or not subject to review or appeal, which amendment,
clarification, change, Administrative Action or decision is enacted, promulgated or announced, in
each case on or after the date of original issuance of the Debt Securities, there is more than an
insubstantial risk that: (i) the Trust is, or will be within 90 days of the date of such opinion,
subject to United States federal income tax with respect to income received or accrued on the Debt
Securities; (ii) interest payable by the Company on the Debt Securities is not, or within 90 days
of the date of such opinion, will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes; or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other taxes, duties, assessments
or other governmental charges.




          “Treasury Rate” means (i) the yield, under the heading which represents the average
for the week immediately prior to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is




7









 




published weekly by the Federal Reserve and which establishes yields on actively traded United
States Treasury securities adjusted to constant maturity under the caption “Treasury Constant
Maturities,” for the maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life shall be determined and the Treasury Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding to the nearest month) or (ii)
if such release (or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to the semi-annual
equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Special Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Special Redemption Date.




          “Trust” means First Alliance Capital Trust 1, the Delaware business trust, or any
other similar trust created for the purpose of issuing Capital Securities in connection with the
issuance of Debt Securities under this Indenture, of which the Company is the sponsor.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.




          “Trust Securities” means Common Securities and Capital Securities of First Alliance
Capital Trust I.




          “Trustee” means the Person identified as “Trustee” in the first paragraph hereof, and,
subject to the provisions of Article VI hereof, shall also include its successors and assigns as
Trustee hereunder.




          “United States” means the United States of America and the District of Columbia.




          “U.S. Person” has the meaning given to United States Person as set forth in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended.




ARTICLE II

DEBT SECURITIES




          Section 2.01 Authentication and Dating.




          Upon the execution and delivery of this Indenture, or from time to time thereafter, Debt
Securities in an aggregate principal amount not in excess of $15,464,000 may be executed and
delivered by the Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debt Securities to or upon the written order of
the Company, signed by the Chairman of the Board of Directors, Vice Chairman, President, Chief
Financial Officer or any Vice President and by the Secretary, any Assistant Secretary, Treasurer or
any Assistant Treasurer of the general partner of the Company, if the Company is a limited
partnership, or of the Company, if the Company is a corporation, without any further action by the
Company hereunder. In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon:








8









 








          (a) a copy of any Board Resolution or Board Resolutions relating thereto and, if applicable,
an appropriate record of any action taken pursuant to such resolution, in each case certified by
the Secretary or an Assistant Secretary of the Company as the case may be; and




          (b) an Opinion of Counsel prepared in accordance with Section 14.06 which shall also state:





     (1) that such Debt Securities, when authenticated and delivered by the Trustee
and issued by the Company in each case in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company; and




     (2) that all laws and requirements in respect of the execution and delivery by
the Company of the Debt Securities, have been complied with and that authentication
and delivery of the Debt Securities by the Trustee will not violate the terms of
this Indenture.



          The Trustee shall have the right to decline to authenticate and deliver any Debt Securities
under this Section if the Trustee, being advised by counsel, determines that such action may not
lawfully be taken or if a Responsible Officer of the Trustee in good faith shall determine that
such action would expose the Trustee to personal liability to existing holders.




          The definitive Debt Securities shall be typed, printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the officers
executing such Debt Securities, as evidenced by their execution of such Debt Securities.




          Section 2.02 Form of Trustee’s Certificate of Authentication.




          The Trustee’s certificate of authentication on all Debt Securities shall be in substantially
the following form:




          This is one of the Debt Securities referred to in the within-mentioned Indenture.




                                                  , as Trustee




	 	 	 	 	 	 	 

	 

	 	By
	 	 

Authorized Officer
	 	 






          Section 2.03 Form and Denomination of Debt Securities.




          The Debt Securities shall be substantially in the form of Exhibit A hereto. The Debt
Securities shall be in registered, certificated form without coupons and in minimum denominations
of $100,000 and any multiple of $1,000 in excess thereof. The Debt Securities shall be numbered,
lettered, or otherwise distinguished in such manner or in accordance with such plans as the
officers executing the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.




9









 





          Section 2.04 Execution of Debt Securities.




          The Debt Securities shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of the Chairman of the Board of Directors, Vice Chairman, President, Chief
Financial Officer, Executive Vice President, Senior Vice President or Vice President of the general
partner of the Company, if the Company is a limited partnership, or of the Company, if the Company
is a corporation, under its seal which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise, and which need not be attested. Only such Debt
Securities as shall bear thereon a certificate of authentication substantially in the form herein
before recited, executed by the Trustee or the Authenticating Agent by the manual signature of an
authorized officer, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee or the Authenticating Agent upon any Debt
Security executed by the Company shall be conclusive evidence that the Debt Security so
authenticated has been duly authenticated and delivered hereunder and that the holder is entitled
to the benefits of this Indenture.




          In case any officer of the Company who shall have signed any of the Debt Securities shall
cease to be such officer before the Debt Securities so signed shall have been authenticated and
delivered by the Trustee or the Authenticating Agent, or disposed of by the Company, such Debt
Securities nevertheless may be authenticated and delivered or disposed of as though the Person who
signed such Debt Securities had not ceased to be such officer of the Company; and any Debt Security
may be signed on behalf of the Company by such Persons as, at the actual date of the execution of
such Debt Security, shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.




          Every Debt Security shall be dated the date of its authentication.




          Section 2.05 Exchange and Registration of Transfer of Debt Securities.




          The Company shall cause to be kept, at the office or agency maintained for the purpose of
registration of transfer and for exchange as provided in Section 3.02, a register (the “Debt
Security Register”) for the Debt Securities issued hereunder in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the registration and
transfer of all Debt Securities as in this Article Two provided. Such register shall be in written
form or in any other form capable of being converted into written form within a reasonable time.




          Debt Securities to be exchanged may be surrendered at the Principal Office of the Trustee or
at any office or agency to be maintained by the Company for such purpose as provided in Section
3.02, and the Company shall execute, the Company or the Trustee shall register and the Trustee or
the Authenticating Agent shall authenticate and make available for delivery in exchange therefor
the Debt Security or Debt Securities which the Securityholder making the exchange shall be entitled
to receive. Upon due presentment for registration of transfer of any Debt Security at the
principal corporate trust office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.02, the Company shall execute, the Company or
the Trustee shall register and the Trustee or the Authenticating Agent shall authenticate and make
available for delivery in the name of the






10









 







transferee or transferees a new Debt Security for a like aggregate principal amount.
Registration or registration of transfer of any Debt Security by the Trustee or by any agent of the
Company appointed pursuant to Section 3.02, and delivery of such Debt Security, shall be deemed to
complete the registration or registration of transfer of such Debt Security.




          All Debt Securities presented for registration of transfer or for exchange or payment shall
(if so required by the Company or the Trustee or the Authenticating Agent) be duly endorsed by, or
be accompanied by a written instrument or instruments of transfer in form satisfactory to the
Company and either the Trustee or the Authenticating Agent duly executed by, the holder or his
attorney duly authorized in writing.




          No service charge shall be made for any exchange or registration of transfer of Debt
Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in connection therewith.




          The Company or the Trustee shall not be required to exchange or register a transfer of any
Debt Security for a period of 15 days next preceding the date of selection of Debt Securities for
redemption.




          Notwithstanding the foregoing, Debt Securities may not be transferred except in compliance
with the restricted securities legend set forth below (the “Restrictive Securities
Legend”), unless otherwise determined by the Company in accordance with applicable law:




          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,




11









 




CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A
“PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS
SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH
PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975
OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN
OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO
FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.




          IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.




          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.








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          THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND
OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”).
THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED
CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY AND IS NOT SECURED.




          Section 2.06 Mutilated, Destroyed, Lost or Stolen Debt Securities.




          In case any Debt Security shall become mutilated or be destroyed, lost or stolen, the Company
shall execute, and upon its written request the Trustee shall authenticate and deliver, a new Debt
Security bearing a number not contemporaneously outstanding, in exchange and substitution for the
mutilated Debt Security, or in lieu of and in substitution for the Debt Security so destroyed, lost
or stolen. In every case the applicant for a substituted Debt Security shall furnish to the
Company and the Trustee such security or indemnity as may be required by them to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the
Company and the Trustee evidence, to their satisfaction of the destruction, loss or theft of such
Debt Security and of the ownership thereof.




          The Trustee may authenticate any such substituted Debt Security and deliver the same upon the
written request or authorization of any officer of the Company. Upon the issuance of any
substituted Debt Security, the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any other expenses
connected therewith. In case any Debt Security which has matured or is about to mature or has been
called for redemption in full shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substitute Debt Security, pay or authorize the payment of the same
(without surrender thereof except in the case of a mutilated Debt Security) if the applicant for
such payment shall furnish to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the destruction, loss or theft of such Security
and of the ownership thereof.




          Every substituted Debt Security issued pursuant to the provisions of this Section 2.06 by
virtue of the fact that any such Debt Security is destroyed, lost or stolen shall constitute an
additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities duly issued hereunder. All Debt
Securities shall be held and owned upon the express condition that, to the extent permitted by
applicable law, the foregoing provisions are exclusive with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debt Securities and shall preclude any and all other rights
or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable instruments or other securities without their
surrender.







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          Section 2.07 Temporary Debt Securities.




          Pending the preparation of definitive Debt Securities, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Debt Securities that are typed,
printed or lithographed. Temporary Debt Securities shall be issuable in any authorized
denomination, and substantially in the form of the definitive Debt Securities but with such
omissions, insertions and variations as may be appropriate for temporary Debt Securities, all as
may be determined by the Company. Every such temporary Debt Security shall be executed by the
Company and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Debt Securities. Without unreasonable delay
the Company will execute and deliver to the Trustee or the Authenticating Agent definitive Debt
Securities and thereupon any or all temporary Debt Securities may be surrendered in exchange
therefor, at the principal corporate trust office of the Trustee or at any office or agency
maintained by the Company for such purpose as provided in Section 3.02, and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in exchange for such
temporary Debt Securities a like aggregate principal amount of such definitive Debt Securities.
Such exchange shall be made by the Company at its own expense and without any charge therefor
except that in case of any such exchange involving a registration of transfer the Company may
require payment of a sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in relation thereto. Until so exchanged, the temporary Debt Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive Debt Securities
authenticated and delivered hereunder.




          Section 2.08 Payment of Interest.




          Each Debt Security will bear interest at the Interest Rate from and including the original
date of issuance of such Debt Security until the Maturity Date on the principal thereof, on any
overdue principal and (to the extent that payment of such interest is enforceable under applicable
law) on Deferred Interest on any overdue installment of interest (including Defaulted Interest),
payable (subject to the provisions of Article XII) on each Interest Payment Date commencing on
January 25, 2002. Interest and any Deferred Interest on any Debt Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name said Debt Security (or one or more Predecessor Securities) is registered at the close of
business on the regular record date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date shall be paid to the Person to whom principal is
paid. In the event that any Debt Security or portion thereof is called for redemption and the
redemption date is subsequent to a regular record date with respect to any Interest Payment Date
and prior to such Interest Payment Date, interest on such Debt Security will be paid upon
presentation and surrender of such Debt Security.




          Any interest on any Debt Security, other than Deferred Interest, that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered holder on the relevant regular
record date by virtue of having been such holder, and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debt Securities (or their respective Predecessor
Securities) are registered at the close of business on a special record date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: the Company




14









 




shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each such Debt Security and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted
Interest which shall not be more than fifteen nor less than ten days prior to the date of the
proposed payment and not less than ten days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such special record date and,
in the name and at the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed, first class postage prepaid,
to each Securityholder at his or her address as it appears in the Debt Security Register, not less
than ten days prior to such special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names such Debt Securities (or their respective
Predecessor Securities) are registered on such special record date and thereafter the Company shall
have no further payment obligation in respect of the Defaulted Interest.




          Any interest scheduled to become payable on an Interest Payment Date occurring during an
Extension Period shall not be Defaulted Interest and shall be payable on such other date as may be
specified in the terms of such Debt Securities.




          The term “regular record date” as used in this Section shall mean the tenth day of the month
in which an Interest Payment shall occur, whether or not such date is a Business Day.




          Subject to the foregoing provisions of this Section, each Debt Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Debt Security
shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such
other Debt Security.




          Section 2.09 Cancellation of Debt Securities Paid, etc.




          All Debt Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer, shall, if surrendered to the Company or any paying agent, be surrendered
to the Trustee and promptly canceled by it, or, if surrendered to the Trustee or any Authenticating
Agent, shall be promptly canceled by it, and no Debt Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. All Debt Securities
canceled by any Authenticating Agent shall be delivered to the Trustee. The Trustee shall destroy
all canceled Debt Securities unless the Company otherwise directs the Trustee in writing. If the
Company shall acquire any of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Debt Securities unless and until
the same are surrendered to the Trustee for cancellation.







15









 








          Section 2.10 Computation of Interest.




          The amount of interest payable for any period will be computed on the basis of a 360 day year
of twelve 30-day months.




          Section 2.11 Extension of Interest Payment Period.




          So long as no Event of Default has occurred and is continuing, the Company shall have the
right, from time to time and without causing an Event of Default, to defer payments of interest on
the Debt Securities by extending the interest payment period on the Debt Securities at any time and
from time to time during the term of the Debt Securities, for up to ten consecutive semi-annual
periods (each such extended interest payment period, an “Extension Period”), during which
Extension Period no interest shall be due and payable (except any Additional Interest that may be
due and payable). No Extension Period may end on a date other than an Interest Payment Date.
During any Extension Period, interest will continue to accrue on the Debt Securities and interest
on such accrued interest (such accrued interest and interest thereon referred to herein as
“Deferred Interest”) will accrue at the Interest Rate, compounded semi-annually from the
date such. Deferred Interest would have been payable were it not for the Extension Period, both to
the extent permitted by law. No interest or Deferred Interest shall be due and payable during an
Extension Period, except at the end thereof, but each installment of interest that would otherwise
have been due and payable during such Extension Period shall bear Deferred Interest. At the end of
any such Extension Period the Company shall pay all Deferred Interest then accrued and unpaid on
the Debt Securities; provided, however, that no Extension Period may extend beyond
the Maturity Date; and provided further, however, that during any such
Extension Period, the Company shall be subject to the restrictions set forth in Section 3.08 of
this Indenture. Prior to the termination of any Extension Period, the Company may further extend
such period, provided that such period together with all such previous and further
consecutive extensions thereof shall not exceed ten consecutive semi-annual periods, or extend
beyond the Maturity Date. Upon the termination of any Extension Period and upon the payment of all
Deferred Interest, the Company may commence a new Extension Period, subject to the foregoing
requirements. The Company must give the Trustee notice of its election to begin such Extension
Period at least one Business Day prior to the earlier of (i) the next succeeding date on which
interest on the Debt Securities would have been payable except for the election to begin such
Extension Period or (ii) the date such interest is payable, but in any event not later than the
related regular record date. The Trustee shall give notice of the Company’s election to begin a
new Extension Period to the Securityholders.




          Section 2.12 CUSIP Numbers.




          The Company in issuing the Debt Securities may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to
Securityholders; provided that any such notice may state that no representation is made as
to the correctness of such numbers either as printed on the Debt Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Debt Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee in writing of any change in
the CUSIP numbers.




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ARTICLE III

PARTICULAR COVENANTS OF THE COMPANY



          Section 3.01 Payment of Principal, Premium and Interest;
Agreed Treatment of the Debt Securities.



          (a) The Company covenants and agrees that it will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest on the Debt Securities at the place, at the respective times and in the manner provided in this Indenture and the Debt Securities. At the option of the Company, each installment of interest on the
Debt Securities may be paid (i) by mailing checks for such interest payable to the order of the holders of
Debt Securities entitled thereto as they appear on the Debt Security
Register or (ii) by wire transfer to any account with a banking
institution located in the United States designated by such Person to
the paying agent no later than the related record date.




          (b) The Company will treat the Debt Securities as indebtedness, and the amounts payable in respect of the principal amount of such Debt Securities as interest, for all U.S.
federal income tax purposes. All payments in respect of such Debt
Securities will be made free and clear of U.S. withholding tax to any
beneficial owner thereof that has provided an Internal Revenue
Service Form W8 BEN (or any substitute or successor form)
establishing its non-US status for U.S. federal income tax
purposes.



          (c) As of the date of this Indenture, the Company has no intention to exercise its right under Section 2.11 to defer payments of interest on the Debt Securities by
commencing an Extension Period. 



          (d) As of the date of this Indenture, the Company believes that the likelihood that it would exercise its right under Section 2.11 to defer payments of interest on the Debt Securities by commencing an Extension Period at any time during which the Debt Securities are outstanding is remote because of the restrictions that would be imposed on the Company’s ability to declare or pay dividends or distributions on, or to redeem, purchase or make a liquidation payment with
 respect to, any of its outstanding equity or partnership or similar
interests, as the case may be, and on the Company’s ability to
make any payments of principal of or interest on, or repurchase or
redeem, any of its debt securities that rank pari passu in all
respects with (or junior in interest to) the Debt Securities.




          Section 3.02
Offices for Notices and Payments, etc. 



          So long as any of the Debt Securities remain outstanding, the Company will maintain in Jacksonville, Florida, an office or agency where the Debt Securities may be presented for payment, an office or agency where the Debt Securities may be presented for registration of transfer and for exchange as in this Indenture provided and an office or agency where notices and demands to or upon the Company in
respect of the Debt Securities or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or agency and of any change of
location thereof. Until otherwise designated from time to time by the Company in a notice to the Trustee, or specified as contemplated by Section 2.05,
 such office or agency for all of the above purposes shall be the
office or agency of


17









 




the Trustee. In case the Company shall fail to maintain any such office or agency in
Jacksonville, Florida, or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be served at the principal
corporate trust office of the Trustee.




          In addition to any such office or agency, the Company may from time to time designate one or
more offices or agencies outside Jacksonville, Florida, where the Debt Securities may be presented
for registration of transfer and for exchange in the manner provided in this Indenture, and the
Company may from time to time rescind such designation, as the Company may deem desirable or
expedient; provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain any such office or agency in Jacksonville,
Florida, for the purposes above mentioned. The Company will give to the Trustee prompt written
notice of any such designation or rescission thereof.




          Section 3.03 Appointments to Fill Vacancies in Trustee’s Office.




          The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.09, a Trustee, so that there shall at all times be a
Trustee hereunder.




          Section 3.04 Provision as to Paying Agent.




          (a) If the Company shall appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provision of this Section 3.04,





     (1) that it will hold all sums held by it as such agent for the payment of the
principal of and premium, if any, or interest, if any, on the Debt Securities
(whether such sums have been paid to it by the Company or by any other obligor on
the Debt Securities) in trust for the benefit of the holders of the Debt Securities;




     (2) that it will give the Trustee prompt written notice of any failure by the
Company (or by any other obligor on the Debt Securities) to make any payment of the
principal of and premium, if any, or interest, if any, on the Debt Securities when
the same shall be due and payable; and




     (3) that it will, at any time during the continuance of any Event of Default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such paying agent



          (b) If the Company shall act as its own paying agent, it will, on or before each due date of
the principal of and premium, if any, or interest, if any, on the Debt Securities, set aside,
segregate and hold in trust for the benefit of the holders of the Debt Securities a sum sufficient
to pay such principal, premium or interest so becoming due and will notify the Trustee in writing
of any failure to take such action and of any failure by the Company (or by any other obligor under
the Debt Securities) to make any payment of the principal of and premium, if any, or interest, if
any, on the Debt Securities when the same shall become due and payable.








18









 








          Whenever the Company shall have one or more paying agents for the Debt Securities, it will, on
or prior to each due date of the principal of and premium, if any, or interest, if any, on the Debt
Securities, deposit with a paying agent a sum sufficient to pay the principal, premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto and
(unless such paying agent is the Trustee) the Company shall promptly notify the Trustee in writing
of its action or failure to act.




          (c) Anything in this Section 3.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge with respect to the Debt
Securities, or for any other reason, pay, or direct any paying agent to pay to the Trustee all sums
held in trust by the Company or any such paying agent, such sums to be held by the Trustee upon the
same terms and conditions herein contained.




          (d) Anything in this Section 3.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 3.04 is subject to Sections 12.03 and 12.04.




          Section 3.05 Certificate to Trustee.




          The Company will deliver to the Trustee on or before 120 days after the end of each fiscal
year, so long as Debt Securities are outstanding hereunder, a Certificate stating that in the
course of the performance by the signers of their duties as officers of the Company they would
normally have knowledge of any default by the Company in the performance of any covenants contained
herein, stating whether or not they have knowledge of any such default and, if so, specifying each
such default of which the signers have knowledge and the nature thereof.




          Section 3.06 Additional Interest.




          If and for so long as the Trust is the holder of all Debt Securities and is required to pay
any additional taxes, duties, assessments or other governmental charges as a result of a Tax Event,
the Company will pay such additional amounts (the “Additional Interest”) on the Debt
Securities as shall be required so that the net amounts received and retained by the Trust after
paying taxes, duties, assessments or other governmental charges will be equal to the amounts the
Trust would have received if no such taxes, duties, assessments or other governmental charges had
been imposed. Whenever in this Indenture or the Debt Securities there is a reference in any
context to the payment of principal of or interest on the Debt Securities, such mention shall be
deemed to include mention of payments of the Additional Interest provided for in this paragraph to
the extent that, in such context, Additional Interest is, was or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the payment of
Additional Interest (if applicable) in any provisions hereof shall not be construed as excluding
Additional Interest in those provisions hereof where such express mention is not made,
provided, however, that the deferral of the payment of interest during an Extension
Period pursuant to Section 2.11 shall not defer the payment of any Additional Interest that may be
due and payable.







19









 








          Section 3.07 Compliance with Consolidation Provisions.




          The Company will not, while any of the Debt Securities remain outstanding, consolidate with or
merge into, or merge into itself, or sell or convey all or substantially all of its property to any
other Person unless the provisions of Article XI hereof are complied with.




          Section 3.08 Limitation on Dividends and Distributions.




          If Debt Securities are initially issued to the Trust or a trustee of such trust in connection
with the issuance of Trust Securities by the Trust (regardless of whether Debt Securities continue
to be held by such trust) and (i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment of any obligations under the
Capital Securities Guarantee or (iii) the Company shall have given notice of its election to defer
payments of interest on the Debt Securities by extending the interest payment period as provided
herein and such period, or any extension thereof, shall have commenced and be continuing, then (1)
if the Company is a partnership, it may not (A) declare or pay any distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the partnership interests
of the Company or (B) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with
or junior in interest to the Debt Securities (other than (a) repurchases, redemptions or other
acquisitions of the partnership interests of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers or consultants, in connection with a equity reinvestment or equity purchase
plan or in connection with the issuance of the partnership interests of the Company (or securities
convertible into or exercisable for such partnership interests) as consideration in an acquisition
transaction entered into prior to the occurrence of any of (i), (ii) or (iii), above, (b) as a
result of any exchange or conversion of any class or series of the partnership interests of the
Company (or any equity securities of a subsidiary of the Company) for any class or series of the
partnership interests of the Company or of any class or series of the Company’s indebtedness for
any class or series of the partnership interests of the Company, (c) the purchase of fractional
interests of the partnership interests of the Company pursuant to the conversion or exchange
provisions of such partnership interests or the partnership interests being converted or exchanged,
(d) any distribution in connection with any equity rights plan, or the issuance of rights,
partnership interests or other property under any equity rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any distribution in the form of partnership
interests, warrants, options or other rights where the distributed partnership interests or the
partnership interests issuable upon exercise of such warrants, options or other rights are of the
same class or series of partnership interests as that on which the distribution is being made or
ranks pari passu with or junior to such class or series of partnership interests) or, (2) if the
Company is a corporation, it may not (A) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock, or (B) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with
or junior in interest to the Debt Securities (other than (a) 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 one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment or




20









 




stockholder stock purchase plan or in connection with the issuance of capital stock of the
Company (or securities convertible into or exercisable for such capital stock) as consideration in
an acquisition transaction entered into prior to the occurrence of any of (i), (ii) or (iii),
above, (b) as a result of any exchange or conversion of any class or series of the Company’s
capital stock (or any capital stock of a subsidiary of the Company) for any class or series of the
Company’s capital stock or of any class or series of the Company’s indebtedness for any class or
series of the Company’s capital stock, (c) 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, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property under any
stockholder’s rights plan, or the redemption or repurchase of rights pursuant thereto, or (e) any
dividend in the form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the same stock as that on
which the dividend is being paid or ranks pari passu with or junior to such stock).




          Section 3.09 Covenants as to the Trust.




          For so long as such Trust Securities remain outstanding, the Company shall maintain 100%
ownership of the Common Securities; provided, however, that any permitted successor
of the Company under this Indenture that is a U.S. Person may succeed to the Company’s ownership of
such Common Securities. The Company, as owner of the Common Securities, shall use commercially
reasonable efforts to cause the Trust (a) to remain a statutory business trust, except in
connection with a distribution of Debt Securities to the holders of Trust Securities in liquidation
of the Trust, the redemption of all of the Trust Securities or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, (b) to otherwise continue to be classified as a grantor trust for United States federal income tax purposes and
to cause each holder of Trust Securities to be treated as owning an undivided beneficial interest
in the Debt Securities.




ARTICLE IV

LISTS AND REPORTS

BY THE COMPANY AND THE TRUSTEE




          Section 4.01 Securityholders’ Lists.




          The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:




          (a) on each regular record date for an Interest Payment Date, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Securityholders of the Debt
Securities as of such record date; and




          (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;




          except that no such lists need be furnished under this Section 4.01 so long as the Trustee is
in possession thereof by reason of its acting as Debt Security registrar.







21









 








          Section 4.02 Preservation and Disclosure of Lists.




          (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Debt Securities (1) contained in the
most recent list furnished to it as provided in Section 4.01 or (2) received by it in the capacity
of Debt Securities registrar (if so acting) hereunder. The Trustee may destroy any list furnished
to it as provided in Section 4.01 upon receipt of a new list so furnished.




          (b) In case three or more holders of Debt Securities (hereinafter referred to as
“applicants”) apply in writing to the Trustee and furnish to the Trustee reasonable proof
that each such applicant has owned a Debt Security for a period of at least six months preceding
the date of such application, and such application states that the applicants desire to communicate
with other holders of Debt Securities with respect to their rights under this Indenture or under
such Debt Securities and is accompanied by a copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee shall within five Business Days after the
receipt of such application, at its election, either:





     (1) afford such applicants access to the information preserved at the time by
the Trustee in accordance with the provisions of subsection (a) of this Section
4.02, or




     (2) inform such applicants as to the approximate number of holders of Debt
Securities whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application.



          If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Securityholder of Debt
Securities whose name and address appear in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.02 a copy of the form of proxy
or other communication which is specified in such request with reasonable promptness after a tender
to the Trustee of the material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Securities and Exchange Commission, if permitted or required
by applicable law, together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of all Debt Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said Commission, as permitted
or required by applicable law, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such objections, said Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the






22









 







entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.




          (c) Each and every holder of Debt Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be
held accountable by reason of the disclosure of any such information as to the names and addresses
of the holders of Debt Securities in accordance with the provisions of subsection (b) of this
Section 4.02, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant to a request made
under said subsection (b).




ARTICLE V

REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS

UPON AN EVENT OF DEFAULT




          Section 5.01 Events of Default.




          The following Events of Default shall be “Events of Default” with respect to Debt
Securities:




          (a) the Company defaults in the payment of any interest upon any Debt Security when it becomes
due and payable, and continuance of such default for a period of 30 days; for the avoidance of
doubt, an extension of any interest payment period by the Company in accordance with Section 2.11
of this Indenture shall not constitute a default under this clause 5.01(a); or




          (b) the Company defaults in the payment of all or any part of the principal of (or premium, if
any, on) any Debt Securities as and when the same shall become due and payable either at maturity,
upon redemption, by declaration of acceleration or otherwise; or




          (c) the Company defaults in the performance of, or breaches, any of its covenants or
agreements in Sections 3.06, 3.07, 3.08 and 3.09 of this Indenture (other than a covenant or
agreement a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 90 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities, a written notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or




          (d) a court having jurisdiction in the premises shall enter a decree or order for relief in
respect of the Company in an involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any substantial part of its
property, or orders the winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 90 consecutive days; or




          (e) the Company shall commence a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, shall consent to the entry




23









 




of an order for relief in an involuntary case under any such law, or shall consent to the
appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or of any substantial part of its property,
or shall make any general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due; or




          (f) the Trust shall have voluntarily or involuntarily liquidated, dissolved, wound-up its
business or otherwise terminated its existence except in connection with (1) the distribution of
the Debt Securities to holders of such Trust Securities in liquidation of their interests in the
Trust, (2) the redemption of all of the outstanding Trust Securities or (3) certain mergers,
consolidations or amalgamations, each as permitted by the Declaration.




          If an Event of Default occurs and is continuing with respect to the Debt Securities, then, and
in each and every such case, unless the principal of the Debt Securities shall have already become
due and payable, either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding hereunder, by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal of the Debt
Securities and the interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.




          The foregoing provisions, however, are subject to the condition that if, at any time after the
principal of the Debt Securities shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, (i) the Company shall pay or shall deposit with the Trustee a sum sufficient
to pay all matured installments of interest upon all the Debt Securities and the principal of and
premium, if any, on the Debt Securities which shall have become due otherwise than by acceleration
(with interest upon such principal and premium, if any, and Deferred Interest, to the extent
permitted by law) and such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and all other
amounts due to the Trustee pursuant to Section 6.06, and if any and (ii) all Events of Default
under this Indenture, other than the non-payment of the principal of or premium, if any, on Debt
Securities which shall have become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein — then and in every such case the holders of a majority in aggregate
principal amount of the Debt Securities then outstanding, by written notice to the Company and to
the Trustee, may waive all defaults and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.




          In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such rescission or annulment or
for any other reason or shall have been determined adversely to the Trustee, then and in every such
case the Company, the Trustee and the holders of the Debt Securities shall be restored respectively
to their several positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the holders of the Debt Securities shall continue as though no such
proceeding had been taken.





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          Section 5.02 Payment of Debt Securities on Default; Suit Therefor.




          The Company covenants that upon the occurrence of an Event of Default pursuant to clause
5.01(a) or 5.01(b) and upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the holders of the Debt Securities the whole amount that then shall have become due and
payable on all Debt Securities for principal and premium, if any, or interest, or both, as the case
may be, including Deferred Interest accrued on the Debt Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and any other amounts
due to the Trustee under Section 6.06. In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or proceeding to
judgment or final decree, and may enforce any such judgment or final decree against the Company or
any other obligor on such Debt Securities and collect in the manner provided by law out of the
property of the Company or any other obligor on such Debt Securities wherever situated the moneys
adjudged or decreed to be payable.




          In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Debt Securities under Bankruptcy Law, or in case a receiver or
trustee shall have been appointed for the property of the Company or such other obligor, or in the
case of any other similar judicial proceedings relative to the Company or other obligor upon the
Debt Securities, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Debt Securities shall then be due and payable as
therein expressed or by declaration of acceleration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section 5.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim
or claims for the whole amount of principal and interest owing and unpaid in respect of the Debt
Securities and, in case of any judicial proceedings, to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all other amounts due to the
Trustee under Section 6.06) and of the Securityholders allowed in such judicial proceedings
relative to the Company or any other obligor on the Debt Securities, or to the creditors or
property of the Company or such other obligor, unless prohibited by applicable law and regulations,
to vote on behalf of the holders of the Debt Securities in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings
or Person performing similar functions in comparable proceedings, and to collect and receive any
moneys or other property payable or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient
to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective
agents, attorneys and counsel, and all other amounts due to the Trustee under Section 6.06.








25









 








          Nothing herein contained shall be construed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Debt Securities or the rights of any holder thereof or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.




          All rights of action and of asserting claims under this Indenture, or under any of the Debt
Securities, may be enforced by the Trustee without the possession of any of the Debt Securities, or
the production thereof at any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall be for the ratable benefit of the holders of the Debt
Securities.




          In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the holders of the Debt Securities, and it shall not be
necessary to make any holders of the Debt Securities parties to any such proceedings.




          Section 5.03 Application of Moneys Collected by Trustee.




          Any moneys collected by the Trustee shall be applied in the following order, at the date or
dates fixed by the Trustee for the distribution of such moneys, upon presentation of the several
Debt Securities in respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof if fully paid:




          First: To the payment of costs and expenses incurred by, and reasonable fees of, the Trustee,
its agents, attorneys and counsel, and of all other amounts due to the Trustee under Section 6.06;




          Second: To the payment of all Senior Indebtedness of the Company if and to the extent
required by Article XV;




          Third: To the payment of the amounts then due and unpaid upon Debt Securities for principal
(and premium, if any), and interest on the Debt Securities, in respect of which or for the benefit
of which money has been collected, ratably, without preference or priority of any kind, according
to the amounts due on such Debt Securities for principal (and premium, if any) and interest,
respectively; and




          Fourth: The balance, if any, to the Company.




          Section 5.04 Proceedings by Securityholders.




          No holder of any Debt Security shall have any right to institute any suit, action or
proceeding for any remedy hereunder, unless such holder previously shall have given to the Trustee
written notice of an Event of Default with respect to the Debt Securities and unless the holders of
not less than 25% in aggregate principal amount of the Debt Securities then outstanding shall have
given the Trustee a written request to institute such action, suit or proceeding and shall have
offered to the Trustee such reasonable indemnity as it may require






26









 







against the costs, expenses and liabilities to be incurred thereby, and the Trustee for 60
days after its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action, suit or proceeding; provided, that no holder of Debt Securities
shall have any right to prejudice the rights of any other holder of Debt Securities, obtain
priority or preference over any other such holder or enforce any right under this Indenture except
in the manner herein provided and for the equal, ratable and common benefit of all holders of Debt
Securities.




          Notwithstanding any other provisions in this Indenture, however, the right of any holder of
any Debt Security to receive payment of the principal of, premium, if any, and interest, on such
Debt Security when due, or to institute suit for the enforcement of any such payment, shall not be
impaired or affected without the consent of such holder. For the protection and enforcement of the
provisions of this Section, each and every Securityholder and the Trustee shall be entitled to such
relief as can be given either at law or in equity.




          Section 5.05 Proceedings by Trustee.




          In case of an Event of Default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.




          Section 5.06 Remedies Cumulative and Continuing.




          Except as otherwise provided in Section 2.06, all powers and remedies given by this Article V
to the Trustee or to the Securityholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any other powers and remedies available to the Trustee or the
holders of the Debt Securities, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture or otherwise established
with respect to the Debt Securities, and no delay or omission of the Trustee or of any holder of
any of the Debt Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or shall be construed
to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of
Section 5.04, every power and remedy given by this Article V or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by
the Trustee or by the Securityholders.




          Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders.




          The holders of a majority in aggregate principal amount of the Debt Securities affected
(voting as one class) at the time outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee with respect to such Debt Securities; provided,
however, that (subject to the provisions of Section 6.01) the Trustee shall






27









 







have the
right to decline to follow any such direction if the Trustee shall determine that the action
so directed would be unjustly prejudicial to the holders not taking part in such direction or if
the Trustee being advised by counsel determines that the action or proceeding so directed may not
lawfully be taken or if a Responsible Officer of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Debt Securities, the holders of a majority in aggregate principal
amount of the Debt Securities at the time outstanding may on behalf of the holders of all of the
Debt Securities waive (or modify any previously granted waiver of) any past default or Event of
Default and its consequences, except a default (a) in the payment of principal of, premium, if any,
or interest on any of the Debt Securities, (b) in respect of covenants or provisions hereof which
cannot be modified or amended without the consent of the holder of each Debt Security affected, or
(c) in respect of the covenants contained in Section 3.09; provided, however, that
if the Debt Securities are held by the Trust or a trustee of such trust, such waiver or
modification to such waiver shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the Trust shall have consented to such waiver or modification to
such waiver; provided, further, that if the consent of the holder of each
outstanding Debt Security is required, such waiver shall not be effective until each holder of the
Trust Securities of the Trust shall have consented to such waiver. Upon any such waiver, the
default covered thereby shall be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Debt Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon. Whenever any default or
Event of Default hereunder shall have been waived as permitted by this Section 5.07, said default
or Event of Default shall for all purposes of the Debt Securities and this Indenture be deemed to
have been cured and to be not continuing.




          Section 5.08 Notice of Defaults.




          The Trustee shall, within 90 days after a Responsible Officer of the Trustee shall have
received notice or obtained actual knowledge of the occurrence of a default with respect to the
Debt Securities, mail to all Securityholders, as the names and addresses of such holders appear
upon the Debt Security Register, notice of all defaults with respect to the Debt Securities known
to the Trustee, unless such defaults shall have been cured before the giving of such notice (the
term “defaults” for the purpose of this Section 5.08 being hereby defined to be the events
specified in subsections (a), (b), (c), (d) and (e) of Section 5.01, not including periods of
grace, if any, provided for therein); provided, that, except in the case of default in the
payment of the principal of, premium, if any, or interest on any of the Debt Securities, the
Trustee shall be protected in withholding such notice if and so long as a Responsible Officer of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders.




          Section 5.09 Undertaking to Pay Costs.




          All parties to this Indenture agree, and each holder of any Debt Security by his acceptance
thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may in its discretion






28









 







assess
reasonable costs, including reasonable attorneys’ fees and expenses, against any party
litigant in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.09 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of
Securityholders, holding in the aggregate more than 10% in principal amount of the Debt Securities
outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Debt Security against the Company on or
after the same shall have become due and payable.




ARTICLE VI

CONCERNING THE TRUSTEE




          Section 6.01 Duties and Responsibilities of Trustee.




          With respect to the holders of Debt Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Debt Securities and after the curing or
waiving of all Events of Default which may have occurred, with respect to the Debt Securities,
undertakes to perform such duties and only such duties as are specifically set forth in this
Indenture. In case an Event of Default with respect to the Debt Securities has occurred (which has
not been cured or waived) the Trustee shall exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.




          No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that:




          (a) prior to the occurrence of an Event of Default with respect to Debt Securities and after
the curing or waiving of all Events of Default which may have occurred





     (1) the duties and obligations of the Trustee with respect to Debt Securities
shall be determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties and
obligations with respect to the Debt Securities as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee, and




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



29









 





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




          (c) the 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 Securityholders pursuant to Section 5.07,
relating to the time, method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.




          None of the provisions contained in this Indenture shall require the 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.




          Section 6.02 Reliance on Documents, Opinions, etc.




          Except as otherwise provided in Section 6.01:




          (a) the 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, consent, order, bond, note, debenture or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;




          (b) any request, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;




          (c) the Trustee may consult with counsel of its selection and any advice or Opinion of Counsel
shall be full and complete authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;




          (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders, pursuant to
the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby;




          (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers conferred upon it by
this Indenture; nothing contained herein shall, however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default with respect to the Debt Securities (that has not been
cured or waived) to exercise with respect to Debt Securities such of the rights and powers vested
in it by this Indenture, and to use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his own affairs;




30









 








          (f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to
do so by the holders of not less than a majority in principal amount of the
outstanding Debt Securities affected thereby; provided, however, that if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expense or liability as a condition to so
proceeding;




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




          (h) the Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Debt Securities unless either (1) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or Event of Default shall
have been given to the Trustee by the Company or any other obligor on the Debt Securities or by any
holder of the Debt Securities.




          Section 6.03 No Responsibility for Recitals, etc.




          The recitals contained herein and in the Debt Securities (except in the certificate of
authentication of the Trustee or the Authenticating Agent) shall be taken as the statements of the
Company and the Trustee and the Authenticating Agent assume no responsibility for the correctness
of the same. The Trustee and the Authenticating Agent make no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities. The Trustee and the Authenticating
Agent shall not be accountable for the use or application by the Company of any Debt Securities or
the proceeds of any Debt Securities authenticated and delivered by the Trustee or the
Authenticating Agent in conformity with the provisions of this Indenture.




          Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own
Debt Securities.




          The Trustee or any Authenticating Agent or any paying agent or any transfer agent or any Debt
Security registrar, in its individual or any other capacity, may become the owner or pledgee of
Debt Securities with the same rights it would have if it were not Trustee, Authenticating Agent,
paying agent, transfer agent or Debt Security registrar.




          Section 6.05 Moneys to be Held in Trust.




          Subject to the provisions of Section 12.04, all moneys received by the-Trustee or any paying
agent shall, until used or applied as herein provided, be held in trust for the purpose for which
they were received, but need not be segregated from other funds except to the extent required by
law. The Trustee and any paying agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on any






31









 







such moneys, if
any, shall be paid from time to time to the Company upon the written order of the Company, signed
by the Chairman of the Board of Directors, the Vice Chairman, the President, the Chief Financial
Officer, the Chief Operating Officer, a Vice President, the
Treasurer or an Assistant Treasurer of the general partner of the Company, if the Company is a
limited partnership, or of the Company, if the Company is a corporation.




          Section 6.06 Compensation and Expenses of Trustee.




          The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to in writing between the Company and
the Trustee (which shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust), and the Company will pay or reimburse the Trustee upon its written
request for all documented reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all Persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify each of the Trustee or any predecessor Trustee
(and its officers, agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes based on the income
of the Trustee) incurred without negligence or bad faith on the part of the Trustee and arising out
of or in connection with the acceptance or administration of this Trust, including the costs and
expenses of defending itself against any claim of liability in the premises. The obligations of
the Company under this Section 6.06 to compensate and indemnify the Trustee and to pay or reimburse
the Trustee for documented expenses, disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of
the Debt Securities upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the holders of particular Debt Securities.




          Without prejudice to any other rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
subsections (d), (e) or (f) of Section 5.01, the expenses (including the reasonable charges and
expenses of its counsel) and the compensation for the services are intended to constitute expenses
of administration under any applicable federal or state bankruptcy, insolvency or other similar
law.




          The provisions of this Section shall survive the resignation or removal of the Trustee and the
defeasance or other termination of this Indenture.




          Section 6.07 Officers’ Certificate as Evidence.




          Except as otherwise provided in Sections 6.01 and 6.02, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an
Officers’ Certificate delivered to the Trustee, and such certificate,







32









 







in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken
or omitted by it under the provisions of this Indenture upon the faith thereof.




          Section 6.08 Eligibility of Trustee.




          The Trustee hereunder shall at all times be a U.S. Person that is a banking corporation
organized and doing business under the laws of the United States of America or any state thereof or
of the District of Columbia and 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, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the purposes of this
Section 6.08 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 records of condition so published.




          The Company may not, nor may any Person directly or indirectly controlling, controlled by, or
under common control with the Company, serve as Trustee, notwithstanding that such corporation
shall be otherwise eligible and qualified under this Article.




          In case at any time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 6.08, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.09.




          If the Trustee has or shall acquire any “conflicting interest” within the meaning of § 310(b)
of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to this Indenture.




          Section 6.09 Resignation or Removal of Trustee.




          (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice of such resignation to the Company and by mailing notice thereof, at the
Company’s expense, to the holders of the Debt Securities at their addresses as they shall appear on
the Debt Security Register. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee or trustees by written instrument, in duplicate, executed by order of
its Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor Trustee. If no successor Trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of resignation to the
affected Securityholders, the resigning Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee, or any Securityholder who has been a bona fide holder
of a Debt Security or Debt Securities for at least six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others similarly situated, petition any such court for
the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor Trustee.




          (b) In case at any time any of the following shall occur —




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     (1) the Trustee shall fail to comply with the provisions of the last paragraph
of Section 6.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Debt Security or Debt
Securities for at least six months,




     (2) the Trustee shall cease to be eligible in accordance with the provisions of
Section 6.08 and shall fail to resign after written request therefor by the Company
or by any such Securityholder, or




     (3) the Trustee shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,



          then, in any such case, the Company may remove the Trustee and appoint a successor Trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor Trustee, or,
subject to the provisions of Section 5.09, any Securityholder who has been a bona fide holder of a
Debt Security or Debt Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint successor Trustee.




          (c) Upon prior written notice to the Company and the Trustee, the holders of a
majority in aggregate principal amount of the Debt Securities at the time outstanding may at
any time remove the Trustee and nominate a successor Trustee, which shall be deemed appointed as
successor Trustee unless within ten Business Days after such nomination the Company objects
thereto, in which case or in the case of a failure by such holders to nominate a successor Trustee,
the Trustee so removed or any Securityholder, upon the terms and conditions and otherwise as in
subsection (a) of this Section 6.09 provided, may petition any court of competent jurisdiction for
an appointment of a successor.




          (d) Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section 6.09 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 6.10.




          Section 6.10 Acceptance by Successor Trustee.




          Any successor Trustee appointed as provided in Section 6.09 shall execute, acknowledge and
deliver to the Company and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to the Debt Securities of its
predecessor hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee, the Trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of






34









 







Section
6.06, execute and deliver an instrument transferring to such successor Trustee all the rights and
powers of the Trustee so ceasing to act and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee thereunder. Upon
request of any such successor Trustee, the Company shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor Trustee all such rights
and powers. Any Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.




          If a successor Trustee is appointed, the Company, the retiring Trustee and the successor
Trustee shall execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the Trust hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.




          No successor Trustee shall accept appointment as provided in this Section 6.10 unless at the
time of such acceptance such successor Trustee shall be eligible under the provisions of Section
6.08.




          In no event shall a retiring Trustee be liable for the acts or omissions of any successor
Trustee hereunder.




          Upon acceptance of appointment by a successor Trustee as provided in this Section 6.10, the
Company shall mail notice of the succession of such Trustee hereunder to the holders of Debt
Securities at their addresses as they shall appear on the Debt Security Register. If the Company
fails to mail such notice within ten Business Days after the acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the
Company.




          Section 6.11 Succession by Merger, etc.




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




          In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not delivered, any






35









 







such
successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee,
and deliver such Debt Securities so authenticated; and in case at that time any of the
Debt Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Debt Securities either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificates shall have the full force which it
is anywhere in the Debt Securities or in this Indenture provided that the certificate of the
Trustee shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Debt Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.




          Section 6.12 Authenticating Agents.




          There may be one or more Authenticating Agents appointed by the Trustee upon the request of
the Company with power to act on its behalf and subject to its direction in the authentication and
delivery of Debt Securities issued upon exchange or registration of transfer thereof as fully to
all intents and purposes as though any such Authenticating Agent had been expressly authorized to
authenticate and deliver Debt Securities; provided that the Trustee shall have no liability
to the Company for any acts or omissions of the Authenticating Agent with respect to the
authentication and delivery of Debt Securities. Any such Authenticating Agent shall at all times
be a corporation organized and doing business under the laws of the United States or of any state
or territory thereof or of the District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at least $50,000,000 and being
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
the requirements of such authority, then for the purposes of this Section 6.12 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. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this Section.




          Any corporation into which any Authenticating Agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of any Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 6.12 without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent.




          Any Authenticating Agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any Authenticating
Agent with respect to the Debt Securities by giving written notice of termination to such
Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such
a termination, or in case at any time any Authenticating Agent shall cease to be eligible under
this Section 6.12, the Trustee may, and upon the request of the Company shall, promptly appoint a
successor Authenticating Agent eligible under this Section 6.12, shall give written notice of such
appointment to the Company and shall mail notice of such






36









 







appointment to all holders of Debt
Securities as the names and addresses of such holders appear on the Debt Security Register. Any
successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers, duties and responsibilities
with respect to the Debt Securities of its predecessor hereunder, with like effect as if originally
named as Authenticating Agent herein.




          The Company agrees to pay to any Authenticating Agent from time to time reasonable
compensation for its services. Any Authenticating Agent shall have no responsibility or liability
for any action taken by it as such in accordance with the directions of the Trustee.




ARTICLE VII

CONCERNING THE SECURITYHOLDERS




          Section 7.01 Action by Securityholders.




          Whenever in this Indenture it is provided that the holders of a specified percentage in
aggregate principal amount of the Debt Securities may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of any other action),
the fact that at the time of taking any such action the holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in person or by agent or proxy appointed in writing, or (b) by the
record of such holders of Debt Securities voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of Article VIII, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of such
Securityholders or (d) by any other method the Trustee deems satisfactory.




          If the Company shall solicit from the Securityholders any request, demand, authorization,
direction, notice, consent, waiver or other action or revocation of the same, the Company may, at
its option, as evidenced by an Officers’ Certificate, fix in advance a record date for such Debt
Securities for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation of the same, but
the Company shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other action or revocation of the same
may be given before or after the record date, but only the Securityholders of record at the close
of business on the record date shall be deemed to be Securityholders for the purposes of
determining whether Securityholders of the requisite proportion of outstanding Debt Securities have
authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same, and for that purpose the outstanding
Debt Securities shall be computed as of the record date; provided, however, that no
such authorization, agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.




37









 








          Section 7.02 Proof of Execution by. Securityholders.




          Subject to the provisions of Sections 6.01, 6.02 and 8.05, proof of the execution of any
instrument by a Securityholder or his agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The ownership of Debt Securities shall
be proved by the Debt Security Register or by a certificate of the Debt Security registrar. The
Trustee may require such additional proof of any matter referred to in this Section as it shall
deem necessary.




          The record of any Securityholders’ meeting shall be proved in the manner provided in Section
8.06.




          Section 7.03 Who Are Deemed Absolute Owners.




          Prior to due presentment for registration of transfer of any Debt Security, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and any Debt Security
registrar may deem the Person in whose name such Debt Security shall be registered upon the Debt
Security Register to be, and may treat him as, the absolute owner of such Debt Security (whether or
not such Debt Security shall be overdue) for the purpose of receiving payment of or on account of
the principal of, premium, if any, and interest on such Debt Security and for all other purposes;
and neither the Company nor the Trustee nor any Authenticating Agent nor any paying agent nor any
transfer agent nor any Debt Security registrar shall be affected by any notice to the contrary.
All such payments so made to any holder for the time being or upon his order shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Debt Security.




          Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding.




          In determining whether the holders of the requisite aggregate principal amount of Debt
Securities have concurred in any direction, consent or waiver under this Indenture, Debt Securities
which are owned by the Company or any other obligor on the Debt Securities or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any other obligor on the Debt Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination; provided, that for the purposes of
determining whether the Trustee shall be protected in relying on any such direction, consent or
waiver, only Debt Securities which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Debt Securities so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 7.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Debt Securities and that the pledgee
is not the Company or any such other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee.




38









 








          Section 7.05 Revocation of Consents; Future Holders Bound.




          At any time prior to (but not after) the evidencing to the Trustee, as provided in Section
7.01, of the taking of any action by the holders of the percentage in aggregate principal amount of
the Debt Securities specified in this Indenture in connection with such action, any holder (in
cases where no record date has been set pursuant to Section 7.01) or any holder as of an applicable
record date (in cases where a record date has been set pursuant to Section 7.01) of
a Debt Security (or any Debt Security issued in whole or in part in exchange or substitution
therefor) the serial number of which is shown by the evidence to be included in the Debt Securities
the holders of which have consented to such action may, by filing written notice with the Trustee
at the Principal Office of the Trustee and upon proof of holding as provided in Section 7.02,
revoke such action so far as concerns such Debt Security (or so far as concerns the principal
amount represented by any exchanged or substituted Debt Security). Except as aforesaid any such
action taken by the holder of any Debt Security shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debt Security, and of any Debt Security issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether
or not any notation in regard thereto is made upon such Debt Security or any Debt Security issued
in exchange or substitution therefor.




ARTICLE VIII

SECURITYHOLDERS’ MEETINGS




          Section 8.01 Purposes of Meetings.




          A meeting of Securityholders may be called at any time and from time to time pursuant to the
provisions of this Article VIII for any of the following purposes:




          (a) to give any notice to the Company or to the Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any
other action authorized to be taken by Securityholders pursuant to any of the provisions of Article
V;




          (b) to remove the Trustee and nominate a successor trustee pursuant to the provisions of
Article VI;




          (c) to consent to the execution of an indenture or indentures supplemental hereto pursuant to
the provisions of Section 9.02; or




          (d) to take any other action authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of such Debt Securities under any other provision of this
Indenture or under applicable law.




          Section 8.02 Call of Meetings by Trustee.




          The Trustee may at any time call a meeting of Securityholders to take any action specified in
Section 8.01, to be held at such time and at such place in New York, as the Trustee shall
determine. Notice of every meeting of the Securityholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such meeting, shall




39









 







be mailed
to holders of Debt Securities affected at their addresses as they shall appear on the Debt
Securities Register. Such notice shall be mailed not less than 20 nor more than 180 days prior to
the date fixed for the meeting.




          Section 8.03 Call of Meetings by Company or Securityholders.




          In case at any time the Company pursuant to a Board Resolution, or the holders of at least 10%
in aggregate principal amount of the Debt Securities, as the case may be, then outstanding, shall
have requested the Trustee to call a meeting of Securityholders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request, then the Company or
such Securityholders may determine the time and the place in Jacksonville, Florida for such meeting
and may call such meeting to take any action authorized in Section 8.01, by mailing notice thereof
as provided in Section 8.02.




          Section 8.04 Qualifications for Voting.




          To be entitled to vote at any meeting of Securityholders a Person shall (a) be a holder of one
or more Debt Securities with respect to which the meeting is being held or (b) a Person appointed
by an instrument in writing as proxy by a holder of one or more such Debt Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of Securityholders shall be
the Persons entitled to vote at such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.




          Section 8.05 Regulations.




          Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Debt Securities and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of the meeting as it
shall think fit.




          The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Securityholders as provided in
Section 8.03, in which case the Company or the Securityholders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.




          Subject to the provisions of Section 7.04, at any meeting each holder of Debt Securities with
respect to which such meeting is being held or proxy therefor shall be entitled to one vote for
each $1,000 principal amount of Debt Securities held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Debt
Security challenged as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than by virtue of Debt
Securities held by him or instruments in writing as aforesaid duly designating him as the Person to
vote on behalf of other Securityholders. Any meeting of Securityholders duly called




40









 







pursuant to
the provisions of Section 8.02 or 8.03 may be adjourned from time to time by a majority of those
present, whether or not constituting a quorum, and the meeting may be held as so adjourned without
further notice.




          Section 8.06 Voting.




          The vote upon any resolution submitted to any meeting of holders of Debt Securities with
respect to which such meeting is being held shall be by written ballots on which shall be
subscribed the signatures of such holders or of their representatives by proxy and the serial
number or numbers of the Debt Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A record in duplicate of
the proceedings of each meeting of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 8.02. The record shall show the serial numbers of the Debt Securities voting
in favor of or against any resolution. The record shall be signed and verified by the affidavits
of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered
to the Company and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.




          Any record so signed and verified shall be conclusive evidence of the matters therein stated.




          Section 8.07 Quorum; Actions.




          The Persons entitled to vote a majority in principal amount of the Debt Securities shall
constitute a quorum for a meeting of Securityholders; provided, however, that if
any action is to be taken at such meeting with respect to a consent, waiver, request, demand,
notice, authorization, direction or other action which may be given by the holders of not less than
a specified percentage in principal amount of the Debt Securities, the Persons holding or
representing such specified percentage in principal amount of the Debt Securities will constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Securityholders, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as determined by the permanent
chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the permanent chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as
provided in Section 8.02, except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of the principal
amount of the Debt Securities which shall constitute a quorum.




41









 








          Except as limited by the proviso in the first paragraph of Section 9.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the holders of a majority in principal amount
of the Debt Securities; provided, however, that, except as limited by the proviso
in the first paragraph of Section 9.02, any resolution with respect to any consent, waiver,
request, demand, notice, authorization, direction or other action that this Indenture
expressly provides may be given by the holders of not less than a specified percentage in principal
amount of the Debt Securities may be adopted at a meeting or an adjourned meeting duly reconvened
and at which a quorum is present as aforesaid only by the affirmative vote of the holders of a not
less than such specified percentage in principal amount of the Debt Securities.




          Any resolution passed or decision taken at any meeting of holders of Debt Securities duly held
in accordance with this Section shall be binding on all the Securityholders, whether or not present
or represented at the meeting.




ARTICLE IX

SUPPLEMENTAL INDENTURES




          Section 9.01 Supplemental Indentures without Consent of Securityholders.




          The Company, when authorized by a Board Resolution, and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto, without the consent of the
Securityholders, for one or more of the following purposes:




          (a) to evidence the succession of another entity to the Company, or successive successions,
and the assumption by the successor entity of the covenants, agreements and obligations of the
Company, pursuant to Article XI hereof;




          (b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the holders of Debt Securities as the Board of Directors shall consider to be
for the protection of the holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional covenants, restrictions or
conditions a default or an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or condition such supplemental indenture may
provide for a particular period of grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default;




          (c) to cure any ambiguity or to correct or supplement any provision contained herein or in any
supplemental indenture which may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other provisions in regard to matters or
questions arising under this Indenture; provided that any such action shall not adversely
affect the interests of the holders of the Debt Securities;




          (d) to add to, delete from, or revise the terms of Debt Securities, including, without
limitation, any terms relating to the issuance, exchange, registration or transfer of Debt





42









 







Securities, including to provide for transfer procedures and restrictions substantially similar to
those applicable to the Capital Securities as required by Section 2.05 (for purposes of assuring
that no registration of Debt Securities is required under the Securities Act of 1933, as amended);
provided that any such action shall not adversely affect the interests of the holders of
the Debt Securities then outstanding (it being understood, for purposes of this proviso, that
transfer restrictions on Debt Securities substantially similar to those that were applicable to Capital
Securities shall not be deemed to adversely affect the holders of the Debt Securities);




          (e) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Debt Securities and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 6.10;




          (f) to make any change (other than as elsewhere provided in this paragraph) that does not
adversely affect the rights of any Securityholder in any material respect; or




          (g) to provide for the issuance of and establish the form and terms and conditions of the Debt
Securities, to establish the form of any certifications required to be furnished pursuant to the
terms of this Indenture or the Debt Securities, or to add to the rights of the holders of Debt
Securities.




          The Trustee is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its discretion, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.




          Any supplemental indenture authorized by the provisions of this Section 9.01 may be executed
by the Company and the Trustee without the consent of the holders of any of the Debt Securities at
the time outstanding, notwithstanding any of the provisions of Section 9.02.




          Section 9.02 Supplemental Indentures with Consent of Securityholders.




          With the consent (evidenced as provided in Section 7.01) of the holders of not less than a
majority in aggregate principal amount of the Debt Securities at the time outstanding affected by
such supplemental indenture (voting as a class), the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act,
then in effect, applicable to indentures qualified thereunder) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the holders of the Debt
Securities; provided, however, that no such supplemental indenture shall without
the consent of the holders of each Debt Security then outstanding and affected thereby (i) extend
the fixed maturity of any Debt Security, or reduce the principal amount thereof or any premium
thereon, or reduce the rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or make the principal thereof or any interest or premium




43









 







thereon
payable in any coin or currency other than that provided in the Debt Securities, or impair or
affect the right of any Securityholder to institute suit for payment thereof or impair the right of
repayment, if any at the option of the holder, or (ii) reduce the aforesaid percentage of Debt
Securities the holders of which are required to consent to any such supplemental indenture; and
provided, further, that if the Debt Securities are held by the Trust or a trustee
of such trust, such
supplemental indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities shall have consented to such supplemental indenture;
provided further, that if the consent of the Securityholder of each outstanding
Debt Security is required, such supplemental indenture shall not be effective until each holder of
the Trust Securities shall have consented to such supplemental indenture.




          Upon the request of the Company accompanied by a Board Resolution authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.




          Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall transmit by mail, first class postage
prepaid, a notice, prepared by the Company, setting forth in general terms the substance of such
supplemental indenture, to the Securityholders thereby as their names and addresses appear upon the
Debt Security Register. Any failure of the Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.




          It shall not be necessary for the consent of the Securityholders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.




          Section 9.03 Effect of Supplemental Indentures.




          Upon the execution of any supplemental indenture pursuant to the provisions of this Article
IX, this Indenture shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debt Securities shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all purposes.




          Section 9.04 Notation on Debt Securities.




          Debt Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may bear a notation as to any matter provided for in
such supplemental indenture. If the Company or the Trustee shall so determine, new Debt Securities
so modified as to conform, in the opinion of the Board of




44









 







Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may be prepared and
executed by the Company, authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debt Securities then outstanding.




          Section 9.05 Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.




          The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall, in addition to the
documents required by Section 14.06, receive an Officers’ Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto complies with the
requirements of this Article IX. The Trustee shall receive an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant to this Article IX is authorized or
permitted by, and conforms to, the terms of this Article IX and that it is proper for the Trustee
under the provisions of this Article IX to join in the execution thereof.




ARTICLE X

REDEMPTION OF SECURITIES




          Section 10.01 Optional Redemption.




          At any time the Company shall have the right, subject to the receipt by the Company of prior
approval from the OTS, if then required under applicable capital guidelines or policies of the OTS,
to redeem the Debt Securities, in whole or in part, on any January 25th or July
25th on or after July 25, 2006 (the “Redemption Date”), at the Redemption Price.




          Section 10.02 Special Event Redemption.




          If a Special Event shall occur and be continuing, the Company shall have the right, subject to
the receipt by the Company of prior approval from the OTS if then required under applicable capital
guidelines or policies of the OTS, to redeem the Debt Securities, in whole but not in part, at any
time within 90 days following the occurrence of such Special Event (the “Special Redemption
Date”), at the Special Redemption Price.




          Section 10.03 Notice of Redemption; Selection of Debt Securities.




          In case the Company shall desire to exercise the right to redeem all, or, as the case may be,
any part of the Debt Securities, it shall fix a date for redemption and shall mail a notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for redemption to the
holders of Debt Securities so to be redeemed as a whole or in part at their last addresses as the
same appear on the Debt Security Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively presumed to have been duly given,
whether or not the holder receives such notice. In any case, failure to give such notice by mail
or any defect in the notice to the holder of any Debt Security designated for redemption as a whole
or in part, shall not affect the validity of the proceedings for the redemption, of any other Debt
Security.




45









 








          Each such notice of redemption shall specify the CUSIP number, if any, of the Debt Securities
to be redeemed, the date fixed for redemption, the redemption price at which Debt Securities are to
be redeemed, the place or places of payment, that payment will be made upon presentation and
surrender of such Debt Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. If less than all the Debt
Securities are to be redeemed the notice of redemption shall specify the numbers of the Debt
Securities to be redeemed. In case the Debt Securities are to be redeemed in part only, the notice
of redemption shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such Debt Security, a new
Debt Security or Debt Securities in principal amount equal to the unredeemed portion thereof will
be issued.




          Prior to 10:00 a.m. New York City time on the Redemption Date or on the Special Redemption
Date (as the case may be) specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more paying agents an amount of money
sufficient to redeem on the redemption date all the Debt Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed for redemption.




          The Company will give the Trustee notice not less than 45 nor more than 60 days prior to the
redemption date as to the aggregate principal amount of Debt Securities to be redeemed and the
Trustee shall select, in such manner as in its sole discretion it shall deem appropriate and fair,
the Debt Securities or portions thereof (in integral multiples of $1,000) to be redeemed.




          Section 10.04 Payment of Debt Securities Called for Redemption.




          If notice of redemption has been given as provided in Section 10.03, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given shall become due and
payable on the Redemption Date or the Special Redemption Date (as the case may be) and at the place
or places stated in such notice at the applicable redemption price, together with interest accrued
to the date fixed for redemption, and on and after said Redemption Date or the Special Redemption
Date (as the case may be) (unless the Company shall default in the payment of such Debt Securities
at the redemption price, together with interest accrued to said date) interest on the Debt
Securities or portions of Debt Securities so called for redemption shall cease to accrue. On
presentation and surrender of such Debt Securities at a place of payment specified in said notice,
such Debt Securities or the specified portions thereof shall be paid and redeemed by the Company at
the applicable redemption price, together with interest accrued thereon to the Redemption Date or
the Special Redemption Date (as the case may be).




          Upon presentation of any Debt Security redeemed in part only, the Company shall execute and
the Trustee shall authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Debt Security or Debt Securities of authorized denominations in
principal amount equal to the unredeemed portion of the Debt Security so presented.




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ARTICLE XI

CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE




          Section 11.01 Company May Consolidate, etc., on Certain Terms.




          Nothing contained in this Indenture or in the Debt Securities shall prevent any consolidation
or merger of the Company with or into any other corporation or corporations
(whether or not affiliated with the Company) or successive consolidations or mergers in which
the Company or its successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property, capital stock or partnership or similar
interests of the Company or its successor or successors as an entirety, or substantially as an
entirety, to any other corporation (whether or not affiliated with the Company, or its successor or
successors) authorized to acquire and operate the same; provided, however, that the
Company hereby covenants and agrees that, upon any such consolidation, merger (where the Company is
not the surviving corporation), sale, conveyance, transfer or other disposition, the due and
punctual payment of the principal of (and premium, if any) and interest on all of the Debt
Securities in accordance with their terms, according to their tenor, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company, shall be expressly assumed by supplemental indenture satisfactory in form
to the Trustee executed and delivered to the Trustee by the entity formed by such consolidation, or
into which the Company shall have been merged, or by the entity which shall have acquired such
property, capital stock or partnership or similar interests.




          Section 11.02 Successor Entity to be Substituted.




          In case of any consolidation, merger, sale, conveyance, transfer or other disposition and upon
the assumption by the successor entity, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal
of and premium, if any, and interest on all of the Debt Securities and the due and punctual
performance and observance of all of the covenants and conditions of this Indenture to be performed
or observed by the Company, such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company, and thereupon the
predecessor entity shall be relieved of any further liability or obligation hereunder or upon the
Debt Securities. Such successor entity thereupon may cause to be signed, and may issue either in
its own name or in the name of the Company, any or all of the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the Trustee or the
Authenticating Agent; and, upon the order of such successor entity instead of the Company and
subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee or
the Authenticating Agent shall authenticate and deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company, to the Trustee or the Authenticating
Agent for authentication, and any Debt Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee or the Authenticating Agent for that purpose. All
the Debt Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Debt Securities had been issued at the date of the execution
hereof.




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          Section 11.03 Opinion of Counsel to be Given to Trustee.




          The Trustee, subject to the provisions of Sections 6.01 and 6.02, shall receive, in addition
to the Opinion of Counsel required by Section 9.05, an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance, transfer or other
disposition, and any assumption, permitted or required by the terms of this Article XI
complies with the provisions of this Article XI.




ARTICLE XII

SATISFACTION AND DISCHARGE OF INDENTURE




          Section 12.01 Discharge of Indenture.




          When (a) the Company shall deliver to the Trustee for cancellation all Debt Securities
theretofore authenticated (other than any Debt Securities which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.06) and not theretofore
canceled, or (b) all the Debt Securities not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds, which shall be immediately due and payable, sufficient to pay at maturity
or upon redemption all of the Debt Securities (other than any Debt Securities which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.06)
not theretofore canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of maturity or redemption date, as
the case may be, but excluding, however, the amount of any moneys for the payment of principal of,
and premium, if any, or interest on the Debt Securities (1) theretofore repaid to the Company in
accordance with the provisions of Section 12.04, or (2) paid to any state or to the District of
Columbia pursuant to its unclaimed property or similar laws, and if in the case of either clause
(a) or clause (b) the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect except for the provisions
of Sections 2.05, 2.06, 2.08, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof shall survive until
such Debt Securities shall mature or are redeemed, as the case may be, and are paid. Thereafter,
Sections 6.09 and 12.04 shall survive, and the Trustee, on demand of the Company accompanied by an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have been complied with,
and at the cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee in
connection with this Indenture or the Debt Securities.




          Section 12.02 Deposited Moneys to be Held in Trust by Trustee.




          Subject to the provisions of Section 12.04, all moneys deposited with the Trustee pursuant to
Section 12.01 shall be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Company if acting as its own paying agent), to the




48









 







holders of the
particular Debt Securities for the payment of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal, and premium, if any, and
interest.




          Section 12.03 Paying Agent to Repay Moneys Held.




          Upon the satisfaction and discharge of this Indenture, all moneys then held by any paying
agent of the Debt Securities (other than the Trustee) shall, upon demand of the Company, be repaid
to it or paid to the Trustee, and thereupon such paying agent shall be released from all further
liability with respect to such moneys.




          Section 12.04 Return of Unclaimed Moneys.




          Any moneys deposited with or paid to the Trustee or any paying agent for payment of the
principal of, and premium, if any, or interest on Debt Securities and not applied but remaining
unclaimed by the holders of Debt Securities for two years after the date upon which the principal
of, and premium, if any, or interest on such Debt Securities, as the case may be, shall have become
due and payable, shall be repaid to the Company by the Trustee or such paying agent on written
demand; and the holder of any of the Debt Securities shall thereafter look only to the Company for
any payment which such holder may be entitled to collect and all liability of the Trustee or such
paying agent with respect to such moneys shall thereupon cease.




ARTICLE XIII

IMMUNITY OF INCORPORATORS, STOCKHOLDERS, PARTNERS,

OFFICERS AND DIRECTORS




          Section 13.01 Indenture and Debt Securities Solely Company Obligations.




          No recourse for the payment of the principal of or premium, if any, or interest on any Debt
Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental
indenture, or in any such Debt Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, partner, officer, director, employee
or agent, as such; past, present or future, of the Company or of any successor entity of the
Company, either directly or through the Company or any successor entity of the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is hereby expressly
waived and released as a condition of, and as a consideration for, the execution of this Indenture
and the issue of the Debt Securities.




ARTICLE XIV

MISCELLANEOUS PROVISIONS




          Section 14.01 Successors.




          All the covenants, stipulations, promises and agreements of the Company contained in this
Indenture shall bind its successors and assigns whether so expressed or not.




49









 








          Section 14.02 Official Acts by Successor Entity.




          Any act or proceeding by any provision of this Indenture authorized or required to be done or
performed by any board, committee or officer of the Company shall and may be done
and performed with like force and effect by the like board, committee, officer or other
authorized Person of any entity that shall at the time be the lawful successor of the Company.




          Section 14.03 Surrender of Company Powers.




          The Company by instrument in writing executed by authority of 2/3 (two-thirds) of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved to the Company and
thereupon such power so surrendered shall terminate both as to the Company, and as to any permitted
successor.




          Section 14.04 Addresses for Notices, etc.




          Any notice or demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Securityholders on the Company may be given or served in
writing by being deposited postage prepaid by registered or certified mail in a post office letter
box addressed (until another address is filed by the Company, with the Trustee for the purpose)
Alliance Capital Partners, LP at 8100 Nations Way, Jacksonville, Florida 32256, Attention: Stephen
B. Matheson. Any notice, direction, request or demand by any, Securityholder or the Company to or
upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the office of the Trustee, addressed to the Trustee, 101 Barclay
Street, Floor 21W, New York, NY 10286 Attention: Corporate Trust Administration.




          Section 14.05 Governing Law.




          This Indenture and each Debt Security shall be deemed to be a contract made under the law of
the State of New York, and for all purposes shall be governed by and construed in accordance with
the law of said State, without regard to conflict of laws principles thereof.




          Section 14.06 Evidence of Compliance with Conditions Precedent.




          Upon any application or demand by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that in the opinion of the signers all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent have been complied with.




          Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture (except
certificates delivered pursuant to Section 3.05) shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition; (b) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (c) a statement that, in




50









 







the opinion of such
person, he has made such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been complied with; and (d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been
complied with.




          Section 14.07 Non-Business Days.




          In any case where the date of payment of interest on or principal of the Debt Securities is
not a Business Day, the payment of such interest on or principal of the Debt Securities need not be
made on such date but may be made on the next succeeding Business Day, with the same force and
effect as if made on the date of payment and no interest shall accrue for the period from and after
such date, except if such Business Day is in the next succeeding calendar year, such payment will
be made on the immediately preceding Business Day.




          Section 14.08 Table of Contents, Headings, etc.




          The table of contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.




          Section 14.09 Execution in Counterparts.




          This Indenture may be executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same instrument.




          Section 14.10 Separability.




          In case any one or more of the provisions contained in this Indenture or in the Debt
Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debt Securities, but this Indenture and such Debt Securities shall be
construed as if such invalid or illegal or unenforceable provision had never been contained herein
or therein.




          Section 14.11 Assignment.




          The Company will have the right at all times to assign any of its rights or obligations under
this Indenture to a direct or indirect wholly owned Subsidiary of the Company, provided
that, in the event of any such assignment, the Company will remain liable for all such obligations.
Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties
hereto and their respective successors and assigns. This Indenture may not otherwise be assigned
by the parties thereto.




          Section 14.12 Acknowledgment of Rights.




          The Company acknowledges that, with respect to any Debt Securities held by the Trust or the
Institutional Trustee of the Trust, if the Institutional Trustee of the Trust fails to




51









 







enforce its
rights under this Indenture as the holder of Debt Securities held as the assets of the Trust after
the holders of a majority in Liquidation Amount of the Capital Securities of the Trust have so
directed in writing such Institutional Trustee, a holder of record of such Capital Securities may
to the fullest extent permitted by law institute legal proceedings directly against the Company to
enforce such Institutional Trustee’s rights under this Indenture without first
instituting any legal proceedings against such Institutional Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is continuing and such event
is attributable to the failure of the Company to pay interest (or premium, if any) or principal on
the Debt Securities on the date such interest (or premium, if any) or principal is otherwise due
and payable (or in the case of redemption, on the redemption date), the Company acknowledges that a
holder of record of Capital Securities of the Trust may directly institute a proceeding against the
Company for enforcement of payment to such holder directly of the principal of (or premium, if any)
or interest on the Debt Securities having an aggregate 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 Debt Securities.




ARTICLE XV

SUBORDINATION OF DEBT SECURITIES




          Section 15.01 Agreement to Subordinate.




          The Company covenants and agrees, and each holder of Debt Securities issued hereunder and
under any supplemental indenture or by any Board Resolution (the “Additional Provisions”)
by such Securityholder’s acceptance thereof likewise covenants and agrees, that all Debt Securities
shall be issued subject to the provisions of this Article XV; and each holder of a Debt Security,
whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound
by such provisions.




          The payment by the Company of the principal of, and premium, if any, and interest on all Debt
Securities issued hereunder and under any Additional Provisions shall, to the extent and in the
manner hereinafter set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, whether outstanding at the date of this
Indenture or thereafter incurred.




          No provision of this Article XV shall prevent the occurrence of any default or Event of
Default hereunder.




          Section 15.02 Default on Senior Indebtedness.




          In the event and during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior Indebtedness of the Company
following any grace period, or in the event that the maturity of any Senior Indebtedness of the
Company has been accelerated because of a default, and such acceleration has not been rescinded or
canceled then, in either case, no payment shall be made by the Company with respect to the
principal of, or premium, if any, or interest on the Debt Securities.




          In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee
when such payment is prohibited by the preceding paragraph of this Section 15.02,




52









 







such payment
shall, subject to Section 15.06, be held in trust for the benefit of, and shall be paid over or
delivered to, the holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent that the holders of
the Senior Indebtedness (or their representative or representatives or a trustee) notify
the Trustee in writing within 90 days of such payment of the amounts then due and owing on the
Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to
the holders of Senior Indebtedness.




          Section 15.03 Liquidation; Dissolution; Bankruptcy.




          Upon any payment by the Company or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy,
insolvency, receivership or other proceedings, all amounts due upon all Senior Indebtedness of the
Company shall first be paid in full, or payment thereof provided for in money in accordance with
its terms, before any payment is made by the Company, on account of the principal (and premium, if
any) or interest on the Debt Securities; and upon any such dissolution or winding-up or liquidation
or reorganization, any payment by the Company, or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Securityholders or the Trustee
would be entitled to receive from the Company, except for the provisions of this Article XV, shall
be paid by the Company, or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other Person making such payment or distribution, or by the Securityholders or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, as calculated by the Company) or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money’s worth, after giving effect
to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before
any payment or distribution is made to the Securityholders.




          In the event that, notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid
in full, or provision is made for such payment in money in accordance with its terms, such payment
or distribution shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior
Indebtedness may have been issued, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Indebtedness of the Company, remaining unpaid
to the extent necessary to pay such Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or distribution to or for the benefit of the
holders of such Senior Indebtedness.




53









 








          For purposes of this Article XV, the words “cash, property or securities” shall not be deemed
to include shares of stock or partnership or similar interests of the Company as reorganized or
readjusted, or securities of the Company or any other entity provided for by a plan of
reorganization or readjustment, the payment of which is subordinated at least to the extent
provided in this Article XV with respect to the Debt Securities to the payment of all Senior
Indebtedness of the Company, that may at the time be outstanding, provided that (a) such
Senior Indebtedness is assumed by the new entity, if any, resulting from any such reorganization or
readjustment, and (b) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The consolidation of the
Company with, or the merger of the Company into, another entity or the liquidation or dissolution
of the Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another entity upon the terms and conditions provided for in
Article IX of this Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such other entity shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated in Article IX of
this Indenture. Nothing in Section 15.02 or in-this Section 15.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 6.06 of this Indenture.




          Section 15.04 Subrogation.




          Subject to the payment in full of all Senior Indebtedness of the Company, the Securityholders
shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or
distributions of cash, property or securities of the Company, applicable to such Senior
Indebtedness until the principal of (and premium, if any) and interest on the Debt Securities shall
be paid in full; and, for the purposes of such subrogation, no payments or distributions to the
holders of such Senior Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the provisions of this Article XV, and
no payment over pursuant to the provisions of this Article XV to or for the benefit of the holders
of such Senior Indebtedness by Securityholders or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness of the Company, and the holders of the Debt
Securities be deemed to be a payment or distribution by the Company to or on account of such Senior
Indebtedness. It is understood that the provisions of this Article XV are and are intended solely
for the purposes of defining the relative rights of the holders of the Debt Securities, on the one
hand, and the holders of such Senior Indebtedness, on the other hand.




          Nothing contained in this Article XV or elsewhere in this Indenture, any Additional Provisions
or in the Debt Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness of the Company, and the holders of the Debt
Securities, the obligation of the Company, which is absolute and unconditional, to pay to the
holders of the Debt Securities the principal of (and premium, if any) and interest on the Debt
Securities as and when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Debt Securities and creditors
of the Company, other than the holders of Senior Indebtedness of the Company, nor shall anything
herein or therein prevent the Trustee or the holder of any Debt Security from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XV of the holders of such




54









 







Senior Indebtedness in respect of
cash, property or securities of the Company, received upon the exercise of any such remedy.




          Upon any payment or distribution of assets of the Company referred to in this Article XV, the
Trustee, subject to the provisions of Article VI of this Indenture, and the Securityholders shall
be entitled to conclusively rely upon any order or decree made by any court
of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to
the Securityholders, for the purposes of ascertaining the Persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XV.




          Section 15.05 Trustee to Effectuate Subordination.




          Each Securityholder by such Securityholder’s acceptance thereof authorizes and directs the
Trustee on such Securityholder’s behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article XV and appoints the Trustee such
Securityholder’s attorney-in-fact for any and all such purposes.




          Section 15.06 Notice by the Company.




          The Company shall give prompt written notice to a Responsible Officer of the Trustee at the
Principal Office of the Trustee of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Debt Securities pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article XV or any other
provision of this Indenture or any Additional Provisions, the Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of any payment of monies to
or by the Trustee in respect of the Debt Securities pursuant to the provisions of this Article XV,
unless and until a Responsible Officer of the Trustee at the Principal Office of the Trustee shall
have received written notice thereof from the Company or a holder or holders of Senior Indebtedness
or from any trustee therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Article VI of this Indenture, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section 15.06 at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or interest on any Debt
Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have
full power and authority to receive such money and to apply the same to the purposes for which they
were received, and shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.




          The Trustee, subject to the provisions of Article VI of this Indenture, shall be entitled to
conclusively rely on the delivery to it of a written notice by a Person representing himself to be
a holder of Senior Indebtedness of the Company (or a trustee or representative on behalf of such
holder), to establish that such notice has been given by a holder of such Senior




55









 







Indebtedness or a
trustee or representative on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person
as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XV, the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article XV,
and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.




          Section 15.07 Rights of the Trustee; Holders of Senior Indebtedness.




          The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article XV in respect of any Senior Indebtedness at any time held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture or any Additional Provisions
shall deprive the Trustee of any of its rights as such holder.




          With respect to the holders of Senior Indebtedness of the Company, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are specifically set forth in
this Article XV, and no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture or any Additional Provisions against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to
Securityholders, the Company or any other Person money or assets to which any holder of such Senior
Indebtedness shall be entitled by virtue of this Article XV or otherwise.




          Nothing in this Article XV shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 6.06.




          Section 15.08 Subordination May Not Be Impaired.




          No right of any present or future holder of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act
or failure to act on the part of the Company, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise
be charged with.




          Without in any way limiting the generality of the foregoing paragraph, the holders of Senior
Indebtedness of the Company may, at any time and from time to time, without the consent of or
notice to the Trustee or the Securityholders, without incurring responsibility to the
Securityholders and without impairing or releasing the subordination provided in this Article XV or
the obligations hereunder of the holders of the Debt Securities to the holders of such Senior
Indebtedness, do any one or more of the following: (a) change the manner, place or terms of payment
or extend, the time of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend
or supplement in any manner such Senior Indebtedness or any instrument




56









 







evidencing the same or any
agreement under which such Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(e) release any Person liable in any manner for the collection of such Senior Indebtedness; and (d)
exercise or refrain from exercising any rights against the Company, and any other Person.




          The Bank of New York in its capacity as trustee hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.









57









 








          IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their
respective officers thereunto duly authorized, as of the day and year first above written.




	 	 	 	 	 

	Alliance Capital Partners, LP	 	 
	 
	 	 	 	 
	By:

	 	Alliance Capital Partners, Inc.,

the sole general partner
	 	 
	 
	 	 	 	 
	By

	 	/s/ Robert M. Clements	 	 
	 

	 	 	 	 
	 

	 	Robert M. Clements

President and Chief Executive Officer	 	 
	 
	 	 	 	 
	The Bank of New York,	 	 
	 

	 	as Trustee	 	 
	 
	 	 	 	 
	By

	 	/s/ signature	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 







 











 





EXHIBIT A




FORM OF JUNIOR SUBORDINATED DEBT SECURITY




[FORM OF FACE OF SECURITY]



          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE I44A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (C) OR (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED
FROM THE COMPANY. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.



          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A
“PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S
INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR HOLD THIS
SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE
RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR



Exhibit A-1 









 




PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER
APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406
OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR
HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE
AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR
OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.




          IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.



          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.



          THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND
OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”).
THIS OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED
CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY AND IS NOT SECURED.



Exhibit A-2 









 





10.25% Junior Subordinated Debt Security

of

Alliance Capital Partners, LP




          Alliance Capital Partners, LP, a Delaware limited partnership (the “Company”), for
value received promises to pay to [ _________ ] (the “Holder”) or registered assigns, the
principal sum of [ _________ ] ($[ _________ ]) on July 25, 2031, and to pay interest on
said principal sum from July 16, 2001, or from the most recent interest payment date (each such
date, an “Interest Payment Date”) to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on January 25th and
July 25th of each year commencing January 25, 2002, at a fixed annual rate equal to
10.25% (the “Interest Rate”) until the principal hereof shall have become due and payable,
and on any overdue principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue installment of interest at an annual
rate equal to 10.25% compounded semi-annually. The amount of interest payable on any Interest
Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which the principal or interest is payable on this Debt Security is not a
Business Day, then payment 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. The interest installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this
Debt Security (or one or more Predecessor Securities, as defined in said Indenture) is registered
at the close of business on the Record Date for such interest installment, which shall be the close
of business on the 15th day next preceding such Interest Payment Date. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be payable to the
registered holders on such Record Date and may be paid to the Person in whose name this Debt
Security (or one or more Predecessor Debt Securities) is registered at the close of business on a
special record date to be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the registered holders of the Debt Securities not less than 10 days prior
to such special record date, all as more fully provided in the Indenture. The principal of and
interest on this Debt Security shall be payable at the office or agency of the Trustee (or other
paying agent appointed by the Company) maintained for that purpose in any coin or currency of the
United States of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered holder at such address as shall appear in
the Debt Security Register or by wire transfer to an account appropriately designated by the holder
hereof. Notwithstanding the foregoing, so long as the holder of this Debt Security is the
Institutional Trustee, the payment of the principal of and interest on this Debt Security will be
made in immediately available funds at such place and to such account as may be designated by the
Trustee.



          So long as no Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, to defer payments of interest on the Debt Securities by extending the
interest payment period on the Debt Securities at any time and from time to time during the term of
the Debt Securities, for up to I0 consecutive semi-annual periods (each such extended interest
payment period, an “Extension Period”), during which Extension Period no



Exhibit A-3 









 




interest shall be due and payable (except any Additional Interest that may be due and
payable). During any Extension Period, interest will continue to accrue on the Debt Securities and
interest on such accrued interest (such accrued interest and interest thereon referred to herein as
“Deferred Interest”) will accrue at the Interest Rate, compounded semi-annually from the
date such Deferred Interest would have been payable were it not for the Extension Period, both to
the extent permitted by law. No Extension Period may end on a date other than an Interest Payment
Date. At the end of any such Extension Period the Company shall pay all Deferred Interest then
accrued and unpaid on the Debt Securities; provided however, that no Extension
Period may extend beyond the Maturity Date and provided further however, during any
such Extension Period, (A) if the Company is a partnership, it may not (i) declare or pay any
distributions on, or redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the partnership interests of the Company or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the Company that rank
pari passu in all respects with or junior in interest to the Debt Securities (other than (a)
repurchases, redemptions or other acquisitions of the partnership interests of the Company in
connection with any employment contract, benefit plan or other similar arrangement with or for the
benefit of one or more employees, officers or consultants, in connection with a equity reinvestment
or equity purchase plan or in connection with the issuance of the partnership interests of the
Company (or securities convertible into or exercisable for such partnership interests) as
consideration in an acquisition transaction entered into prior to the applicable Extension Period,
(b) as a result of any exchange or conversion of any class or series of the partnership interests
of the Company (or any equity securities of a subsidiary of the Company) for any class or series of
the partnership interests of the Company or of any class or series of the Company’s indebtedness
for any class or series of the partnership interests of the Company, (c) the purchase of fractional
interests of the partnership interests of the Company pursuant to the conversion or exchange
provisions of such partnership interests or the partnership interests being converted or exchanged,
(d) any distribution in connection with any equity rights plan, or the issuance of rights,
partnership interests or other property under any equity rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any distribution in the form of partnership
interests, warrants, options or other rights where the distributed partnership interests or the
partnership interests issuable upon exercise of such warrants, options or other rights are of the
same class or series of partnership interests as that on which the distribution is being made or
ranks pari passu with or junior to such class or series of partnership interests), or (B) if the
Company is a corporation, it may not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of the Company’s
capital stock or (ii) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with
or junior in interest to the Debt Securities (other than (a) 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 one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment or stockholder stock
purchase plan or in connection with the issuance of capital stock of the Company (or securities
convertible into or exercisable for such capital stock) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital stock or of any class
or series of the Company’s






Exhibit A-4 









 







indebtedness for any class or series of the Company’s capital stock, (c) 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, (d) any
declaration of a dividend in connection with any stockholder’s rights plan, or the issuance of
rights, stock or other property under any stockholder’s rights plan, or the redemption or
repurchase of rights pursuant thereto, or (e) any dividend in the form of stock, warrants, options
or other rights where the dividend stock or the stock issuable upon exercise of such warrants,
options or other rights is the same stock as that on which the dividend is being paid or ranks pan
passu with or junior to such stock). Prior to the termination of any Extension Period, the Company
may further extend such period, provided that such period together with all such previous
and further consecutive extensions thereof shall not exceed 10 consecutive semi-annual periods, or
extend beyond the Maturity Date. Upon the termination of any Extension Period and upon the payment
of all Deferred Interest, the Company may commence a new Extension Period, subject to the foregoing
requirements. No interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but each installment of interest that would otherwise have been
due and payable during such Extension Period shall bear Deferred Interest. The Company must give
the Trustee notice of its election to begin such Extension Period at least one Business Day prior
to the earlier of (i) the date interest on the Debt Securities would have been payable except for
the election to begin such Extension Period or (ii) the date such interest is payable, but in any
event not less than one Business Day prior to such record date.




          The indebtedness evidenced by this Debt Security is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness,
and this Debt Security is issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debt Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.



          The Company waives demand, presentment for payment, notice of nonpayment, notice of protest,
and all other notices.



          This Debt Security shall not be entitled to any benefit under the Indenture hereinafter
referred to, be valid or become obligatory for any purpose until the certificate of authentication
hereon shall have been signed by or on behalf of the Trustee.



          The provisions of this Debt Security are continued on the reverse side hereof and such
continued provisions shall for all purposes have the same effect as though fully set forth at this
place.



Exhibit A-5 









 





          IN WITNESS WHEREOF, the Company has duly executed this certificate.



	 	 	 	 	 

	 	 	Alliance Capital Partners, LP
	 
	 	 	 	 
	 

	 	By:
	 	Alliance Capital Partners, Inc., 

the sole general partner
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Dated: [___________], [______]




CERTIFICATE OF AUTHENTICATION




          This is one of the Debt Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 

	 	 	THE BANK OF NEW YORK,
	 	 	      as the Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Officer






Dated: [___________], [______]




Exhibit A-6 









 





[FORM OF REVERSE OF SECURITY]




          This Debt Security is one of a duly authorized series of Debt Securities of the Company, all
issued or to be issued pursuant to an Indenture (the “Indenture”) dated as of July 16,
2001, duly executed and delivered between the Company and The Bank of New York, as Trustee (the
“Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Debt Securities (referred to herein
as the “Debt Securities”) of which this Debt Security is a part. The summary of the terms
of this Debt Security contained herein does not purport to be complete and is qualified by
reference to the Indenture.



          Upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event, this Debt Security may become due and payable, in whole but not in part, at any
time, within 90 days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event (the “Special Redemption Date”), as the case may be, at the Special
Redemption Price. The Company shall also have the right to redeem this Debt Security at the option
of the Company, in whole or in part, on any January 25th or July 25th on or
after July 25, 2006 (a “Redemption Date”), at the Redemption Price.



          Any redemption pursuant to the preceding paragraph will be made, subject to the receipt by the
Company of prior approval from the Office of Thrift Supervision (the “OTS”) if then
required under applicable capital guidelines or policies of the OTS, upon not less than 30 days’
nor more than 60 days’ notice. If the Debt Securities are only partially redeemed by the Company,
the Debt Securities will be redeemed pro rata or by lot or by any other method
utilized by the Trustee.



          “Redemption Price” means the price set forth in the following table for any Redemption
Date or Special Redemption Date that occurs within the twelve-month period beginning in the
relevant date indicated below, expressed in percentage of the principal amount of the Debt
Securities being redeemed:



	 	 	 
	Year Beginning	 	Percentage
	July 25, 2006
	 	107.6875%
	July 25, 2007
	 	106.1500%
	July 25, 2008
	 	104.6125%
	July 25, 2009
	 	103.0750%
	July 25, 2010
	 	101.5375%
	July 25, 2011 and after
	 	100.0000%





plus accrued and unpaid interest on such Debentures to the Redemption Date or Special Redemption
Date, as the case may be.




          “Special Redemption Price” means (1) if the Special Redemption Date is before July 25,
2006, the greater of (a) 100% of the principal amount of the Debt Securities being redeemed
pursuant to Section 10.02 or (b) as determined by a Quotation Agent, the sum of the present values
of the principal amount and the premium payable as part of the Redemption Price



Exhibit A-7 









 




with respect to a redemption as of July 25, 2006 together with the present value of scheduled
payments of interest over the Remaining Life of such Debt Securities, discounted to the Special
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid
interest on such Debt Securities to the Special Redemption Date and (2) if the Special Redemption
Date is on or after July 25, 2006, the Redemption Price for such Special Redemption Date.




          “Comparable Treasury Issue” means with respect to any Special Redemption Date the
United States Treasury security selected by the Quotation Agent as having a maturity comparable to
the Remaining Life that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of debt securities of comparable maturity to
the Remaining Life. If no United States Treasury security has a maturity which is within a period
from three months before to three months after July 25, 2006, the two most closely corresponding
United States Treasury securities shall be used as the Comparable Treasury Issue, and the Treasury
Rate shall be interpolated or extrapolated on a straight-line basis, rounding to the nearest month
using such securities.



          “Comparable Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such Quotations.



          “Primary Treasury Dealer” shall mean a primary United States Government securities
dealer in New York City.



          “Quotation Agent” means Salomon Smith Barney Inc. and its successors;
provided, however, that if the foregoing shall cease to be a Primary Treasury
Dealer, the Company shall substitute therefor another Primary Treasury Dealer.



          “Reference Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Trustee after consultation with the Company.



          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the Quotation Agent, of the
bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such Special Redemption Date.



          “Treasury Rate” means (i) the yield, under the heading which represents the average
for the week immediately prior to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption “Treasury Constant Maturities”, for the
maturity corresponding to the Remaining Life (if no maturity is within three months before or after
the Remaining Life, yields for the two published maturities most closely



Exhibit A-8 









 




corresponding to the Remaining Life shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line basis, rounding to the nearest
month) or (ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Special Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Special Redemption Date.




          In the event of redemption of this Debt Security in part only, a new Debt Security or Debt
Securities, for the unredeemed portion hereof will be issued in the name of the holder hereof upon
the cancellation hereof.



          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of all of the Debt Securities may be declared due and payable, and upon
such declaration of acceleration shall become due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.



          The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Debt Securities at the
time outstanding affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of the Debt
Securities, or reduce the principal amount thereof or any redemption premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or make the principal of, or interest or
premium on, the Debt Securities payable in any coin or currency other than that provided in the
Debt Securities, or impair or affect the right of any holder of Debt Securities to institute suit
for the payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities, the holders of
which are required to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding affected thereby as provided in the Indenture, on behalf of all
of the holders of the Debt Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal of or premium, if any, or interest
on any of the Debt Securities. Any such consent or waiver by the registered holder of this Debt
Security (unless revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Debt Security and of any Debt Security issued
in exchange herefor or in place hereof (whether by registration of transfer or otherwise),
irrespective of whether or not any notation of such consent or waiver is made upon this Debt
Security.



          No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and



Exhibit A-9 









 




unconditional, to pay the principal of and premium, if any, and interest on this Debt Security
at the time and place and at the rate and in the money herein prescribed.




          As provided in the Indenture and subject to certain limitations herein and therein set forth,
this Debt Security is transferable by the registered holder hereof on the Debt Security Register of
the Company, upon surrender of this Debt Security for registration of transfer at the office or
agency of the Trustee in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee- duly
executed by the registered holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Debt Securities of authorized denominations and for the same aggregate principal
amount will be issued to the designated transferee or transferees. No service charge will be made
for any such registration of transfer, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in relation thereto.



          Prior to due presentment for registration of transfer of this Debt Security, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and the Debt Security
registrar may deem and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debt Security shall be overdue and notwithstanding any notice of ownership or writing
hereon) for the purpose of receiving payment of or on account of the principal hereof and interest
due hereon and for all other purposes, and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary.



          No recourse shall be had for the payment of the principal of or the interest on this Debt
Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, partner, officer or director, past,
present or future, as such, of the Company or of any predecessor or successor entity, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.



          The Debt Securities are issuable only in registered certificated form without coupons. As
provided in the Indenture and subject to certain limitations herein and therein set forth, Debt
Securities are exchangeable for a like aggregate principal amount of Debt Securities of a different
authorized denomination, as requested by the holder surrendering the same.



          All terms used in this Debt Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture.


THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT SECURITIES, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.




Exhibit A-10 









 





JUNIOR SUBORDINATED DEBT SECURITY




          THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE
ON RULE 144A, (C) TO AN “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3)
OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (D)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (C) OR
(D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE
COMPANY. THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.



          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT
TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”),
OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A
“PLAN”), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY
PLAN’S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE
EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION
96-23, 95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE
DEEMED TO



 









 




HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE
BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE
CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN,
OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF
ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.




          IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATE AND OTHER INFORMATION AS MAY BE REQUIRED BY THE INDENTURE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.



          THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF
THIS SECURITY IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE
VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO INTEREST
WHATSOEVER IN THIS SECURITY.



          THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES OR ANY AGENCY OR FUND
OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT INSURANCE CORPORATION (THE “FDIC”). THIS
OBLIGATION IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED
CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY AND IS NOT SECURED.



 









 





10.25% Junior Subordinated Debt Security




of



Alliance Capital Partners, LP



          Alliance Capital Partners, LP, a Delaware limited partnership (the “Company”) for
value received promises to pay to The Bank of New York, not in its individual capacity solely as
Institutional Trustee for First, Alliance Capital Trust I (the “Holder”) or registered
assigns, the principal sum of Fifteen Million Four Hundred Sixty-Four Thousand Dollars
($15,464,000) on July 25, 2031, and to pay interest on said principal sum from July 16, 2001, or
from the most recent interest payment date (each such date, an “Interest Payment Date”) to
which interest has been paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on January 25th and July 25th of each year commencing
January 25, 2002, at a fixed annual rate equal to 10.25% (the “Interest Rate”) until the
principal hereof shall have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at an annual rate equal to 10.25% compounded semi-annually.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of a
360-day year of twelve 30-day months. In the event that any date on which the principal or
interest is payable on this Debt Security is not a Business Day, then payment 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. The interest installment so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Debt Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business on the Record Date
for such interest installment, which shall be the close of business on the 15th day next preceding
such Interest Payment Date. Any such interest installment not punctually paid or duly provided for
shall forthwith cease to be payable to the registered holders on such Record Date and may be paid
to the Person in whose name this Debt Security (or one or more Predecessor Debt Securities) is
registered at the close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the registered holders of the
Debt Securities not less than 10 days prior to such special record date, all as more fully provided
in the Indenture. The principal of and interest on this Debt Security shall be payable at the
office or agency of the Trustee (or other paying agent appointed by the Company) maintained for
that purpose in any coin or currency of the United States of America that at the time of payment is
legal tender for payment of public and private debts; provided, however, that
payment of interest may be made at the option of the Company by check mailed to the registered
holder at such address as shall appear in the Debt Security Register or by wire transfer to an
account appropriately designated by the bolder hereof. Notwithstanding the foregoing, so long as
the holder of this Debt Security is the Institutional Trustee, the payment of the principal of and
interest on this Debt Security will be made in immediately available funds at such place and to
such account as may be designated by the Trustee.



 









 





          So long as no Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, to defer payments of interest on the Debt Securities by extending the
interest payment period on the Debt Securities at any time and from time to time during the term of
the Debt Securities, for up to 10 consecutive semi-annual periods (each such extended interest
payment period, an “Extension Period”), during which Extension Period no interest shall be due and
payable (except any Additional Interest that may be due and payable). During any Extension Period,
interest will continue to accrue on the Debt Securities and interest on such accrued interest (such
accrued interest and interest thereon referred to herein as “Deferred Interest”) will accrue at the
Interest Rate, compounded semi-annually from the date such Deferred Interest would have been
payable were it not for the Extension Period, both to the extent permitted by law. No Extension
Period may end on a date other than an Interest Payment Date. At the end of any such Extension
Period the company shall pay all Deferred Interest then accrued and unpaid on the Debt Securities;
provided however, that no Extension Period may extend beyond the Maturity Date and
provided further however, during any such Extension Period, (A) if the
Company is a partnership, may not (i) declare or pay any distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the partnership interests of the
Company or (ii) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu in all respects with
or junior in interest to the Debt Securities (other than (a) repurchases, redemptions or other
acquisitions of the partnership interests of the Company in connection with any employment
contract, benefit plan or other similar arrangement with or for the benefit of one or more
employees, officers or consultants, in connection with an equity reinvestment or equity purchase
plan or in connection with the issuance of the partnership interests of the Company (or securities
convertible into or exercisable for such partnership interests) as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a result of any exchange
or conversion of any class or series of the partnership interests of the Company (or any equity
securities of a subsidiary of the Company) for any class or series of the partnership interests of
the Company or of any class or series of the Company’s indebtedness for any class or series of the
partnership interests of the Company, (c) the purchase of, fractional interests of the partnership
interests of the Company pursuant to the conversion or exchange provisions of such partnership
interests or the partnership interests being converted or exchanged, (d) any distribution in
connection with any equity rights plan, or the issuance of rights, partnership interests or other
property under any equity rights plan, or the redemption or repurchase of rights pursuant thereto,
or (e) any distribution in the form of partnership interests, warrants, options or other rights
where the distributed partnership interests or the partnership interests issuable upon exercise of
such warrants, options or other rights are of the same class or series of partnership interests as
that on which the distribution is being made or ranks pari passu with or junior to such class or
series of partnership interests), or (B) if the Company is a corporation, it may not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company’s capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all respects with or junior in interest to the Debt Securities (other than
(a) 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 one or more employees, officers, directors or consultants in connection with a dividend
reinvestment or stockholder stock purchase plan in connection



 









 




with the issuance of capital stock of the Company (or securities convertible into or
exercisable for such capital stock) as consideration. in an acquisition transaction
entered into prior to the applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the Company’s capital stock (or any capital stock of a
subsidiary of the Company) for any class or series of the Company’s capital stock or of any class
or series of the Company’s indebtedness for any class or series of the Company’s capital stock, (c)
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, (d) any declaration of a dividend in connection with any stockholder’s rights plan, or
the issuance of rights, stock or other property under any stockholder’s rights plan, or the
redemption or repurchase of rights pursuant thereto, or (e) any dividend in the form of stock,
warrants, options or other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the dividend is being
paid or ranks pari passu with or junior to such stock). Prior to the termination of any Extension
Period, the Company may further extend such period, provided that such period together with
all such previous and further consecutive extensions thereof shall not exceed 10 consecutive
semi-annual periods, or extend beyond the Maturity Date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest, the Company may commence a new Extension
Period, subject to the foregoing requirements. No interest or Deferred Interest shall be due and
payable during an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period shall bear Deferred
Interest. The Company must give the Trustee notice of its election to begin such Extension Period
at least one Business Day prior to the earlier of (i) the date interest on the Debt Securities
would have been payable except for the election to begin such Extension Period or (ii) the date
such interest is payable, but in any event not less than one Business Day prior to such record
date.




          The indebtedness evidenced by this Debt Security is, to the extent provided in the Indenture,
subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness,
and this Debt Security is issued subject to the provisions of the Indenture with respect thereto.
Each holder of this Debt Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each holder
hereof, by his or her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of Senior
Indebtedness, whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.



          The Company waives demand, presentment for payment, notice of nonpayment, notice of protest,
and all other notices.



          This Debt Security shall not be entitled to any benefit under the indenture hereinafter
referred to, be valid or become obligatory for any purpose .until the certificate
of authentication hereon shall, have been signed by or on behalf of the Trustee:,



 









 







The provisions’ of this Debt Security are continued on the reverse side hereof and such
continued provisions shall for all purposes have the same effect as though fully set forth at this
place.



 









 





          IN WITNESS WHEREOF, the Company has duly executed this certificate.



	 	 	 	 	 	 	 

	 	 	Alliance Capital Partners, LP
	 
	 	 	 	 	 	 
	 	 	By:	 	Alliance Capital Partners, Inc., 

the sole general partner
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	   
	 

	 	 	 	Name:
	 	Robert M. Clements
	 

	 	 	 	Title:
	 	President and Chief Executive Officer





Dated: July, [______]




CERTIFICATE OF AUTHENTICATION




          This is one of the Debt Securities referred to in the within-mentioned Indenture.



	 	 	 	 	 	 	 

	 	 	THE BANK OF NEW YORK,

     as the Trustee
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 	 	 	 	Authorized Officer






Dated: July, [______]




 









 





          This Debt Security is one of a duly authorized series of Debt Securities of the Company, all
issued or to be issued pursuant to an Indenture (the “Indenture”) dated as of July 16, 2001, duly
executed and delivered between the Company and The Bank of New York, as Trustee (the “Trustee”), to
which Indenture and all indentures supplemental thereto reference is hereby made for a description
of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee,
the Company and the holders of the Debt Securities (referred to herein as the “Debt Securities”) of
which this Debt Security is a part. The summary of the terms of this Debt Security contained
herein does not purport to be complete and is qualified by reference to the Indenture.



          Upon the occurrence and continuation of a Tax Event, an Investment Company Event or a Capital
Treatment Event, this Debt Security may become due and payable, in whole but not in part, at any
time, within 90 days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment (the “Special Redemption Date”), as the case may be, at the Special Redemption
Price. The Company shall also have the right to redeem this Debt Security at the option of the
Company, in whole or in part, on any January 25th or July 25th on or after
July 25, 2006 (a “Redemption Date”), at the Redemption Price.



          Any redemption pursuant to the preceding paragraph will be made, subject to the receipt by the
Company of prior approval from the Office of Thrift Supervision (the “OTS”) if then required under
applicable capital guidelines or policies of the OTS, upon not less than 30 days’ nor more than 60
days’ notice. If the Debt Securities are only partially redeemed by the Company, the Debt
Securities will be redeemed pro rata or by lot or by any other method utilized by
the Trustee.



          “Redemption Price” means the price set forth in the following table for any Redemption Date or
Special Redemption Date that occurs within the twelve-month period beginning in the relevant date
indicated below, expressed in percentage of the principal amount of the Debt Securities being
redeemed:



	 	 	 
	Year Beginning	 	Percentage
	July 25, 2006
	 	107.6875%
	July 25, 2007
	 	106.1500%
	July 25, 2008
	 	104.6125%
	July 25, 2009
	 	103.0750%
	July 25, 2010
	 	101.5375%
	July 25, 2011 and after
	 	100.0000%





plus accrued and unpaid interest on such Debentures to the Redemption Date or special Redemption
Date, as the case may be.




          “Special Redemption Price” means (1) if the Special Redemption Date is before July 25, 2006,
the greater of (a) 100% of the principal amount of the Debt Securities being redeemed pursuant to
Section 10.02 or (b) as determined by a Quotation Agent, the sum of the present values of the
principal amount and the premium payable as part of the Redemption Price with respect to a
redemption as of July 25, 2006 together with the present value of scheduled payments of interest
over the Remaining Life of such Debt Securities, discounted to the Special



 









 




Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 0.50%, plus, in the case of either (a) or (b), accrued and unpaid
interest on such Debt Securities to the Special Redemption Date and (2) if the Special Redemption
Date is on or after July 25, 2006, the Redemption Price for such Special Redemption Date.




          “Comparable Treasury Issue” means with respect to any Special Redemption Date the United
States Treasury security selected by the Quotation Agent as having a maturity comparable to the
Remaining Life that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is within a period from
three months before to three months after July 25, 2006, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury Issue, and the Treasury Rate
shall be interpolated or extrapolated on a straight-line basis, rounding to the nearest month using
such securities.



          “Comparable Treasury Price” means (a) the average of five Reference Treasury Dealer Quotations
for such Special Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (b) if the Trustee obtains fewer than five such Reference Treasury Dealer
Quotations, the average of all such Quotations.



          “Primary Treasury Dealer” shall mean a primary United States Government securities dealer in
New York City.



          “Quotation Agent” means Salomon Smith Barney Inc. and its successors; provided,
however, that if the foregoing shall cease to be a Primary Treasury Dealer, the Company
shall substitute therefor another Primary Treasury Dealer.



          “Reference Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary Treasury
Dealer selected by the Trustee after consultation with the Company.



          “Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any Special Redemption Date, the average, as determined by the Quotation Agent, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each case as, a percentage of its
principal amount) quoted in writing to the Trustee Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such Special Redemption Date.



          “Treasury Rate”, means (i) the yield, under the heading which represents the average for the
week immediately prior to the date of calculation, appearing in the most recently published
statistical release designated H.15 (519) or any successor publication which is published weekly by
the Federal Reserve and which establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption “Treasury Constant Maturities”, for the
maturity corresponding to the Remaining Life (if no maturity is within three months before or after
the Remaining Life, yields for the two published maturities most closely corresponding to the
Remaining Life shall be determined and the Treasury Rate shall be interpolated or extrapolated from
such yields on a straight-line basis, rounding to the nearest



 









 




month) or (ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price
for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Special Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Special Redemption Date.




          In the event of redemption of this Debt Security in part only, a new Debt Security or Debt
Securities for the unredeemed portion hereof will be issued in the name of the holder Debt
Securities for the unredeemed hereof upon the cancellation hereof.



          In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of all of the Debt Securities may be declared due and payable, and upon
such declaration of acceleration shall become due and payable, in the manner, with the effect
and-subject to-the conditions provided in the Indenture.



          The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Debt Securities at the
time outstanding affected thereby, as specified in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Debt Securities; provided, however, that no such
supplemental indenture shall, among other things, without the consent of the holders of each Debt
Security then outstanding and affected thereby (i) extend the fixed maturity of the Debt
Securities, or reduce the principal amount thereof or any redemption premium thereon, or reduce the
rate or extend the time of payment of interest thereon, or make the principal of, or interest or
premium on, the Debt Securities payable in any coin or currency other than that provided in the
Debt Securities, or impair or affect the right of any holder of Debt Securities to institute suit
for the payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities, the holders of
which are required to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of the Debt
Securities at the time outstanding affected thereby as provided in the Indenture, on behalf of all
of the holders of the Debt Securities, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture, and its
consequences, except a default in the payment of the principal, of or premium, if any, or interest
on any of the Debt Securities (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners of this Debt Security and of any
Debt Security issued in exchange herefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this
Debt security.



          No reference herein to the Indenture and no provision of this Debt Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this Debt Security at the time and
place and at the rate and in the money herein prescribed.



 









 





          As provided in the Indenture and subject to certain limitations herein and therein set forth,
this Debt Security is transferable by the registered holder hereof on the Debt Security Register of
the Company, upon surrender of this Debt Security for registration of transfer at the office or
agency of the Trustee in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the
registered holder hereof or his attorney duly authorized in writing, and thereupon one or more new
Debt Securities of authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be made for any such
registration of transfer, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in relation thereto.



          Prior to due presentment or registration of transfer of this Debt Security, the Company, the
Trustee, any Authenticating Agent, any paying agent, any transfer agent and the Debt Security
registrar may deem and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debt Security shall be overdue and notwithstanding any notice of ownership or writing
hereon) for the purpose of receiving payment of or on account of the principal hereof and interest
due hereon and for all other purposes, and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent nor any Debt Security registrar
shall be affected by any notice to the contrary.



          No recourse shall be had for the payment of the principal of or the interest on this Debt
Security, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect
of the Indenture, against any incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.



          The Debt Securities are issuable only in registered certificated form without coupons. As
provided in the Indenture and subject to certain limitations herein and therein set forth, Debt
Securities are exchangeable for a like aggregate principal amount of Debt Securities of a different
authorized denomination, as requested by the holder surrendering the same.



          All terms used in this Debt Security that are defined in the Indenture shall have the meanings
assigned to them in the Indenture,



          THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT
SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.