exv4w13






Exhibit 4.13




EVERBANK FINANCIAL CORP

as Issuer




INDENTURE

Dated as of December 14, 2006




WELLS FARGO BANK, NATIONAL ASSOCIATION

As Trustee



JUNIOR SUBORDINATED DEBT SECURITIES

Due December 15, 2036








 









 








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
	 	 	9	 
	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
	 	 	13	 
	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
	 	 	17	 
	Section 2.12 CUSIP Numbers
	 	 	18	 
	Section 2.13 Global Debentures
	 	 	18	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	PARTICULAR COVENANTS OF THE COMPANY
	 	 	 	 
	 
	 	 	 	 
	Section 3.01 Payment of Principal, Premium and Interest; Agreed Treatment of the Debt Securities
	 	 	21	 
	Section 3.02 Offices for Notices and Payments, etc.
	 	 	21	 
	Section 3.03 Appointments to Fill Vacancies in Trustee’s Office
	 	 	22	 
	Section 3.04 Provision as to Paying Agent
	 	 	22	 
	Section 3.05 Certificate to Trustee
	 	 	23	 
	Section 3.06 Additional Interest
	 	 	23	 






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TABLE OF CONTENTS 

(CONTINUED)




	 	 	 	 	 
	 	 	Page	 
	Section 3.07 Compliance with Consolidation Provisions
	 	 	24	 
	Section 3.08 Limitation on Dividends
	 	 	24	 
	Section 3.09 Covenants as to the Trust
	 	 	25	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE SECTION
	 	 	 	 
	 
	 	 	 	 
	Section 4.01 Securityholders’ Lists
	 	 	25	 
	Section 4.02 Preservation and Disclosure of Lists
	 	 	25	 
	Section 4.03 Financial and Other Information
	 	 	26	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT
	 	 	 	 
	 
	 	 	 	 
	Section 5.01 Events of Default
	 	 	27	 
	Section 5.02 Payment of Debt Securities on Default; Suit Therefor
	 	 	29	 
	Section 5.03 Application of Moneys Collected by Trustee
	 	 	31	 
	Section 5.04 Proceedings by Securityholders
	 	 	31	 
	Section 5.05 Proceedings by Trustee
	 	 	31	 
	Section 5.06 Remedies Cumulative and Continuing
	 	 	32	 
	Section 5.07 Direction of Proceedings and Waiver of Defaults by Majority of Securityholders
	 	 	32	 
	Section 5.08 Notice of Defaults
	 	 	33	 
	Section 5.09 Undertaking to Pay Costs
	 	 	33	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	CONCERNING THE TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 6.01 Duties and Responsibilities of Trustee
	 	 	34	 
	Section 6.02 Reliance on Documents, Opinions, etc.
	 	 	35	 
	Section 6.03 No Responsibility for Recitals, etc.
	 	 	36	 
	Section 6.04 Trustee, Authenticating Agent, Paying Agents, Transfer Agents or Registrar May Own Debt Securities
	 	 	36	 
	Section 6.05 Moneys to be Held in Trust
	 	 	36	 






ii









 




TABLE OF CONTENTS 

(CONTINUED)




	 	 	 	 	 
	 	 	Page	 
	Section 6.06 Compensation and Expenses of Trustee
	 	 	37	 
	Section 6.07 Officers’ Certificate as Evidence
	 	 	37	 
	Section 6.08 Eligibility of Trustee
	 	 	38	 
	Section 6.09 Resignation or Removal of Trustee, Calculation Agent, Paying Agent or Debt Security Registrar
	 	 	38	 
	Section 6.10 Acceptance by Successor
	 	 	39	 
	Section 6.11 Succession by Merger, etc.
	 	 	40	 
	Section 6.12 Authenticating Agents
	 	 	41	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	CONCERNING THE SECURITYHOLDERS
	 	 	 	 
	 
	 	 	 	 
	Section 7.01 Action by Securityholders
	 	 	42	 
	Section 7.02 Proof of Execution by Securityholders
	 	 	43	 
	Section 7.03 Who Are Deemed Absolute Owners
	 	 	43	 
	Section 7.04 Debt Securities Owned by Company Deemed Not Outstanding
	 	 	43	 
	Section 7.05 Revocation of Consents; Future Securityholders Bound
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	SECURITYHOLDERS’ MEETINGS
	 	 	 	 
	 
	 	 	 	 
	Section 8.01 Purposes of Meetings
	 	 	44	 
	Section 8.02 Call of Meetings by Trustee
	 	 	45	 
	Section 8.03 Call of Meetings by Company or Securityholders
	 	 	45	 
	Section 8.04 Qualifications for Voting
	 	 	45	 
	Section 8.05 Regulations
	 	 	45	 
	Section 8.06 Voting
	 	 	46	 
	Section 8.07 Quorum; Actions
	 	 	46	 
	Section 8.08 Written Consent Without a Meeting
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	SUPPLEMENTAL INDENTURES
	 	 	 	 
	 
	 	 	 	 
	Section 9.01 Supplemental Indentures without Consent of Securityholders
	 	 	47  	 






iii









 




TABLE OF CONTENTS 

(CONTINUED)




	 	 	 	 	 
	 	 	Page	 
	Section 9.02 Supplemental Indentures with Consent of Securityholders
	 	 	49	 
	Section 9.03 Effect of Supplemental Indentures
	 	 	50	 
	Section 9.04 Notation on Debt Securities
	 	 	50	 
	Section 9.05 Evidence of Compliance of Supplemental Indenture to be furnished to Trustee
	 	 	50	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	REDEMPTION OF SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 10.01 Optional Redemption
	 	 	50	 
	Section 10.02 Special Event Redemption
	 	 	51	 
	Section 10.03 Notice of Redemption; Selection of Debt Securities
	 	 	51	 
	Section 10.04 Payment of Debt Securities Called for Redemption
	 	 	52	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
	 	 	 	 
	 
	 	 	 	 
	Section 11.01 Company May Consolidate, etc., on Certain Terms
	 	 	52	 
	Section 11.02 Successor Entity to be Substituted
	 	 	53	 
	Section 11.03 Opinion of Counsel to be Given to Trustee
	 	 	54	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	 
	 	 	 	 
	SATISFACTION AND DISCHARGE OF INDENTURE
	 	 	 	 
	 
	 	 	 	 
	Section 12.01 Discharge of Indenture
	 	 	54	 
	Section 12.02 Deposited Moneys to be Held in Trust by Trustee
	 	 	54	 
	Section 12.03 Paying Agent to Repay Moneys Held
	 	 	55	 
	Section 12.04 Return of Unclaimed Moneys
	 	 	55	 
	 
	 	 	 	 
	ARTICLE XIII
	 	 	 	 
	 
	 	 	 	 
	IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
	 	 	 	 
	 
	 	 	 	 
	Section 13.01 Indenture and Debt Securities Solely Corporate Obligations
	 	 	55	 






iv









 





TABLE OF CONTENTS 

(CONTINUED)




	 	 	 	 	 
	 	 	Page	 
	ARTICLE XIV
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS PROVISIONS
	 	 	 	 
	 
	 	 	 	 
	Section 14.01 Successors
	 	 	56	 
	Section 14.02 Official Acts by Successor Entity
	 	 	56	 
	Section 14.03 Surrender of Company Powers
	 	 	56	 
	Section 14.04 Addresses for Notices, etc.
	 	 	56	 
	Section 14.05 Governing Law
	 	 	57	 
	Section 14.06 Evidence of Compliance with Conditions Precedent
	 	 	57	 
	Section 14.07 Non-Business Days
	 	 	57	 
	Section 14.08 Table of Contents, Headings, etc.
	 	 	58	 
	Section 14.09 Execution in Counterparts
	 	 	58	 
	Section 14.10 Severability
	 	 	58	 
	Section 14.11 Assignment
	 	 	58	 
	Section 14.12 Acknowledgment of Rights
	 	 	58	 
	 
	 	 	 	 
	ARTICLE XV
	 	 	 	 
	 
	 	 	 	 
	SUBORDINATION OF DEBT SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 15.01 Agreement to Subordinate
	 	 	59	 
	Section 15.02 Default on Senior Indebtedness
	 	 	59	 
	Section 15.03 Liquidation; Dissolution; Bankruptcy
	 	 	60	 
	Section 15.04 Subrogation
	 	 	61	 
	Section 15.05 Trustee to Effectuate Subordination
	 	 	62	 
	Section 15.06 Notice by the Company
	 	 	62	 
	Section 15.07 Rights of the Trustee, Holders of Senior Indebtedness
	 	 	62	 
	Section 15.08 Subordination May Not Be Impaired
	 	 	63	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	EXHIBIT A  FORM OF DEBT SECURITY
	 	 	 	 






v









 





          THIS INDENTURE, dated as of December 14, 2006, between EverBank Financial Corp, a savings and
loan holding company incorporated in Florida (hereinafter sometimes called the “Company”), and
Wells Fargo Bank, National Association, a national banking association with its principal place of
business in the State of Delaware, as trustee (hereinafter sometimes called the “Trustee”).



W I T N E S S E T H:




          WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issuance of
its Junior Subordinated Debt Securities due December 15, 2036 (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.



          NOW, THEREFORE, 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 in the United
States 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.



          “Additional Provisions” shall have the meaning set forth in Section 15.01.



          “Applicable Depository Procedures” means, with respect to any transfer or transaction
involving a Global Debenture or beneficial interest therein, the rules and procedures of the
Depositary for such Global Debenture, in each case to the extent applicable to such transaction and
as in effect from time to time.



          “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 Wilmington, Delaware or New York City are permitted or required by any applicable
law or executive order to close.



          “Calculation Agent” means the Person identified as “Trustee” in the first paragraph hereof
with respect to the Debt Securities and the Institutional Trustee with respect to the Trust
Securities.



          “Capital Securities” means undivided beneficial interests in the assets of the Trust which are
designated as “Capital Securities” and rank pari passu with Common Securities issued by the Trust;
provided, however, that if an Event of Default 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 agreement that the Company will enter into
with Wells Fargo Bank, National Association 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 any amendment to, or change
in, the laws, rules or regulations of the United States or any political subdivision thereof or
therein, or as the result of any official or administrative pronouncement or action or 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, within 90 days of the receipt
of such opinion, the aggregate Liquidation Amount of the Capital Securities will not be eligible to
be treated by the Company as “Tier 1 Capital” (or the then equivalent thereof) for purposes of the
capital adequacy guidelines of the Federal Reserve or OTS; as applicable (or any successor
regulatory authority with jurisdiction over bank, savings & loan or financial holding companies),
as then in effect and applicable to the Company; provided, however, that the
inability of the Company to treat all or any portion of the Liquidation Amount of the Capital
Securities as Tier 1 Capital shall not constitute the basis for a Capital Treatment Event, if such
inability results from the Company having cumulative preferred stock, minority interests in
consolidated subsidiaries, or any other class of security or interest which the Federal Reserve or
OTS, as applicable, may now or hereafter accord Tier 1 Capital treatment in excess of the amount
which may now or hereafter qualify for treatment as Tier 1



2









 







Capital under applicable
capital adequacy guidelines; provided further, 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 are
designated as “Common Securities” and rank pan passu with Capital Securities issued by the Trust;
provided, however, that if an Event of Default 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.



          “Company” means EverBank Financial Corp, a savings and loan holding company incorporated in
Florida, and, subject to the provisions of Article XI, shall include its successors and assigns.



          “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.



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



          “Declaration” means the Amended and Restated Declaration of Trust of the Trust dated as of
December 14, 2006, 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.



          “Depositary” means an organization registered as a clearing agency under the Securities
Exchange Act of 1934 that is designated as Depositary by the Company or any successor thereto. DTC
will be the initial Depositary.



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



          “DTC” means The Depository Trust Company, a New York corporation.



3









 





          “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.



          “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 Section 2.11.



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



          “Fixed Rate” means a per annum rate of interest, equal to 6.735% commencing December 14, 2006.



          “Global Debenture” means a security that evidences all or part of the Debt Securities, the
ownership and transfers of which shall be made through book entries by a Depositary.



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



          “Initial Purchaser” means the initial purchaser of the Capital Securities.



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



          “Interest Payment Date” means March 15, June 15, September 15 and December 15 of each year,
commencing on March 15, 2007, during the term of this Indenture.



          “Interest Payment Period” means the period from and including an Interest Payment Date, or in
the case of the first Interest Payment Period, the original date of issuance of the Debt
Securities, to, but excluding, the next succeeding Interest Payment Date or, in the case of the
last Interest Payment Period, the Redemption Date, Special Redemption Date or Maturity Date, as the
case may be.



          “Interest Rate” is defined to mean the Fixed Rate and Variable Rate, as applicable.



          “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 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.



          “LIBOR” means the London Interbank Offered Rate for U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to Section 2.10(b).



4









 





          “LIBOR Banking Day” has the meaning set forth in Section 2.10(b)(1).



          “LIBOR Business Day” has the meaning set forth in Section 2.10(b)(1).



          “LIBOR Determination Date” has the meaning set forth in Section 2.10(b).



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



          “Maturity Date” means December 15, 2036.



          “Notice” has the meaning set forth in Section 2.11.



          “Officers’ Certificate” means a certificate signed by the Chairman of the Board, 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 Company, 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 reasonably 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.



          “OTS” means the Office of Thrift Supervision and any successor federal agency that is
primarily responsible for regulating the activities of savings and loan holding companies.



          “Outstanding” means, when used with reference to Debt Securities, subject to the provisions of
Section 7.04, 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 X and XIV 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 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.



          “Paying Agent” has the meaning set forth in Section 3.04(e).



5









 





          “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.



          “Principal Office of the Trustee” 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 919
Market Street, Suite 700, Wilmington, DE 19801.



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



          “Redemption Price” means 100% of the principal amount of the Debt Securities being redeemed
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 if such
Special Redemption Date is on or after December 15, 2016.



          “Responsible Officer” means, with respect to the Trustee, any officer within the Principal
Office of the Trustee with direct responsibility for the administration of the Indenture, 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 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.



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



          “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



6









 




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 (1) with the
prior approval of the Federal Reserve or OTS, as applicable, 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; or (2) the Federal Reserve or OTS, as applicable, shall hereafter classify or
otherwise recognize any such obligation as pari passu or subordinate 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 Section 10.02.



          “Special Redemption Price” means (1) if the Special Redemption Date is before December 15,
2016, One Hundred Five Percent (105%) of the principal amount of the Debt Securities to be redeemed
plus any accrued and unpaid interest thereon to the date of such redemption or (2) if the Special
Redemption Date is on or after December 15, 2016, 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



7









 




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 or otherwise required to pay, or required to withhold
from distributions to holders of Trust Securities, more than a de minimis amount of other taxes
(including withholding taxes), duties, assessments or other governmental charges.




          “Trust” means EverBank Financial Preferred Trust VII, the Delaware statutory 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 from time-to-time, or
any successor legislation.



          “Trust Securities” means Common Securities and Capital Securities of EverBank Financial
Preferred Trust VII.



          “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.



          “Variable Rate” means a per annum rate of interest, equal to LIBOR plus 1.74%, as determined
on the LIBOR Determination Date preceding each Interest Payment Date, reset quarterly, commencing
upon expiration of the Fixed Rate Period.



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 $20,619,000 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 its Chairman of the Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Vice Presidents, 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 a copy of any Board
Resolution or Board Resolutions relating thereto and, if applicable, an appropriate record of any



8









 




action taken pursuant to such resolution, in each case certified by the Secretary or an
Assistant Secretary or other officers with appropriate delegated authority of the Company as the
case may be.




          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 Securityholders.



          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.



          WELLS FARGO BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely 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.


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 its Chairman of the Board of Directors, Vice Chairman, President or Chief
Financial Officer or one of its Executive Vice Presidents, Senior Vice Presidents or Vice
Presidents, 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 Securityholder is
entitled to the benefits of this Indenture.



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          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 Trustee, in its capacity as “Debt Security Registrar”, 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 Debt Security
Registrar shall provide for the registration and transfer of all Debt Securities as provided in
this Article II. 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 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 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 Securityholder or
such Securityholder’s 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.



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          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 immediately 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, unless otherwise determined by the Company
in accordance with applicable law, which legend shall be placed on each 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 THE HOLDER 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 A “NON U.S. PERSON IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT 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 (E) 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 (D) OR (E) 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 BY ITS ACCEPTANCE HEREOF AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.



          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.



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          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 OF THIS SECURITY WILL DELIVER TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES 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 PRINCIPAL 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 PRINCIPAL 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



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CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN
BY THE COMPANY OR ANY OF ITS SUBSIDIARIES 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.


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



13









 




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 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.




          During the Fixed Rate Period, each Debt Security will bear interest at the Fixed Rate.
Thereafter each Debt Security will bear interest at the then applicable Variable Rate from and
including each Interest Payment Date, but excluding, the next succeeding Interest Payment Date or,
in the case of the last Interest Payment Period, the Redemption Date, Special Redemption Date or
Maturity Date, as applicable, 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 and on any
overdue installment of interest (including Defaulted Interest), payable (subject to the provisions
of Article XV) on each Interest Payment Date commencing on December 15, 2016. Interest and any
Deferred Interest on any Debt Security that is payable, and is punctually paid or duly provided for
by the Company, 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, the Redemption Date (to the extent redeemed), or the Special
Redemption Date, shall be paid to the Person to whom principal is paid. In (i) case the Maturity
Date of any Debt Security or (ii) 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 either on or 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 by the Company, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the registered Securityholder on the
relevant regular record date by virtue of having been such Securityholder, 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 shall notify the Trustee in writing of the amount of Defaulted



14









 




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 reasonably 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 fifteenth day prior to
the applicable Interest Payment Date, 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, in which
case the Trustee shall dispose of such Debt Securities as directed by the Company. 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.




          (a) From December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”), the interest
shall be computed on the basis of a 360-day year of twelve 30-day months and the amount payable for
any partial period shall be computed on the basis of the number of days elapsed in a 360-day year
of twelve 30-day months. Upon expiration of the Fixed Rate Period, the amount of interest payable
for any Interest Payment Period will be computed on the basis of a 360-day year and the actual
number of days elapsed in the relevant interest period; provided, however, that upon the occurrence
of a Special Event Redemption pursuant to Section 10.02 the amounts payable pursuant to this
Indenture shall be calculated as set forth in the definition of Special Redemption Price.



          (b) Upon expiration of the Fixed Rate Period, LIBOR, for any Interest Payment Period, shall be
determined by the Calculation Agent in accordance with the following provisions:




          (1) On the second LIBOR Business Day (provided, that on such day commercial
banks are open for business (including dealings in foreign currency deposits) in
London (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR Business Day
that is also a LIBOR Banking Day) prior to the March 15, June 15, September 15 and
December 15 commencement date of each such Interest Payment Period (or, with respect
to the first Interest Payment Period subsequent to the Fixed Rate Period, on
December 15, 2016) (each such day, a “LIBOR Determination Date” for such Interest
Payment Period), the Calculation Agent shall obtain the rate for three-month U.S.
Dollar deposits in Europe, which appears on Telerate Page 3750 (as defined in the
International Swaps and Derivatives Association, Inc. 2000 Interest Rate and
Currency Exchange Definitions) or such other page as may replace such Telerate Page
3750 on the Moneyline Telerate, Inc. service (or such other service or services as
may be nominated by the British Banker’s Association as the information vendor for
the purpose of displaying London interbank offered rates for U.S. dollar deposits),
as of 11:00 a.m. (London time) on such LIBOR Determination Date, and the rate so
obtained shall be LIBOR for such Interest Payment Period. “LIBOR Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banking institutions in The City of New York or Wilmington, Delaware are authorized
or obligated by law or executive order to be closed. If such rate is superseded on
Telerate Page 3750 by a corrected rate before 12:00 noon (London time) on the same
LIBOR Determination Date, the corrected rate as so substituted will be LIBOR for
that Interest Payment Period.




          (2) If, on any LIBOR Determination Date, such rate does not appear on Telerate
Page 3750 or such other page as may replace such Telerate Page 3750 on the Moneyline
Telerate, Inc. service (or such other service or services as may be nominated by the
British Banker’s Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits), the Calculation Agent
shall determine the arithmetic mean of the offered quotations of the Reference Banks
(as defined below) to



16









 







leading banks in the London Interbank market for three-month U.S. Dollar
deposits in Europe (in an amount determined by the Calculation Agent) by reference
to requests for quotations as of approximately 11:00 a.m. (London time) on the LIBOR
Determination Date made by the Calculation Agent to the Reference Banks. If, on any
LIBOR Determination Date, at least two of the Reference Banks provide such
quotations, LIBOR shall equal the arithmetic mean of such quotations. If, on any
LIBOR Determination Date, only one or none of the Reference Banks provide such a
quotation, LIBOR shall be deemed to be the arithmetic mean of the offered quotations
that at least two leading banks in the City of New York (as selected by the
Calculation Agent) are quoting on the relevant LIBOR Determination Date for
three-month U.S. Dollar deposits in Europe at approximately 11:00 a.m. (London time)
(in an amount determined by the Calculation Agent). As used herein, “Reference
Banks” means four major banks in the London Interbank market selected by the
Calculation Agent.




          (3) If the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for the
applicable Interest Payment Period shall be LIBOR in effect for the immediately
preceding Interest Payment Period.



          (c) All percentages resulting from any calculations on the Debt Securities will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of
a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
..0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to
the nearest cent (with one-half cent being rounded upward).



          (d) On each LIBOR Determination Date, the Calculation Agent shall notify, in writing, the
Company and the Paying Agent of the applicable Interest Rate in effect for the related Interest
Payment Period. The Calculation Agent shall, upon the request of any Securityholder, provide the
Interest Rate then in effect. All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the Company and the
Securityholders. The Paying Agent shall be entitled to rely on information received from the
Calculation Agent or the Company as to the Interest Rate. The Company shall, from time to time,
provide any necessary information to the Paying Agent relating to any original issue discount and
interest on the Debt Securities that is included in any payment and reportable for taxable income
calculation purposes.


Section 2.11 Extension of Interest Payment Period.




          So long as no Event of Default leading to an acceleration event pursuant to paragraphs (a),
(d) (e) or (f) of Section 5.01 of the Indenture has occurred and is continuing, the Company shall
have the right under the Indenture, from time to time and without causing an Event of Default, to
defer payments of interest on the Debt Securities by extending the interest distribution period on
the Debt Securities at any time and from time to time during the term of the Debt Securities, for
up to twenty consecutive quarterly periods (each such extended interest distribution 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



17









 




Period may end on a date other than an Interest Payment Date or extend beyond the Maturity
Date, any Redemption Date (to the extent redeemed) or any Special Redemption 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 an annual rate equal to the Interest Rate applicable during such
Extension Period, compounded quarterly from the date such Deferred Interest would have been payable
were it not for the Extension Period, 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. 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, Redemption Date (to the extent redeemed) or Special Redemption
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 twenty consecutive quarterly periods, or extend beyond the Maturity Date,
Redemption Date (to the extent redeemed) or Special Redemption 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 (“Notice”) not later than the related regular record
date for the relevant Interest Payment Date. The Notice shall describe, in reasonable detail, why
the Company has elected to begin an Extension Period. The Notice shall acknowledge and affirm the
Company’s understanding that it is prohibited from issuing dividends and other distributions during
the Extension Period. Upon receipt of the Notice, an Initial Purchaser shall have the right, at
its sole discretion, to disclose the name of the Company, the fact that the Company has elected to
begin an Extension Period and other information that such Initial Purchaser, at its sole
discretion, deems relevant to the Company’s election to begin an Extension Period. 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 a “CUSIP” number (if then generally in
use), and, if so, the Trustee shall use a “CUSIP” number 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 number 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 number.


Section 2.13 Global Debentures.




          (a) Upon the election of a holder of Outstanding Debt Securities, which election need not be
in writing, the Debt Securities owned by such holder shall be issued in the form of one or more
Global Debentures registered in the name of the Depositary or its nominee. Each Global Debenture
issued under this Indenture shall be registered in the name of the



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Depositary designated by the Company for such Global Debenture or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global
Debenture shall constitute a single Debt Security for all purposes of this Indenture.




          (b) Notwithstanding any other provision in this Indenture, no Global Debenture may be
exchanged in whole or in part for Debt Securities registered, and no transfer of a Global Debenture
in whole or in part may be registered, in the name of any Person other than the Depositary for such
Global Debenture or a nominee thereof unless (i) such Depositary advises the Trustee and the
Company in writing that such Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Debenture, and no qualified successor is
appointed by the Company within ninety (90) days of receipt by the Company of such notice, (ii)
such Depositary ceases to be a clearing agency registered under the Exchange Act and no successor
is appointed by the Company within ninety (90) days after obtaining knowledge of such event, (iii)
the Company executes and delivers to the Trustee a company order stating that the Company elects to
terminate the book-entry system through the Depositary or (iv) an Event of Default shall have
occurred and be continuing. Upon the occurrence of any event specified in clause (i), (ii), (iii)
or (iv) above, the Trustee shall notify the Depositary and instruct the Depositary to notify all
owners of beneficial interests in such Global Debenture of the occurrence of such event and of the
availability of Debt Securities to such owners of beneficial interests requesting the same. Upon
the issuance of such Debt Securities and the registration in the Debt Security Register of such
Debt Securities in the names of the holders of the beneficial interests therein, the Trustee shall
recognize such holders of beneficial interests as holders thereof.



          (c) If any Global Debenture is to be exchanged for other Debt Securities or canceled in part,
or if another Debt Security is to be exchanged in whole or in part for a beneficial interest in any
Global Debenture, then either (i) such Global Debenture shall be so surrendered for exchange or
cancellation as provided in this Article II or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Debt Security to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made on the records of
the Debt Security Registrar, whereupon the Trustee, in accordance with the Applicable Depository
Procedures, shall instruct the Depositary or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global Debenture by the
Depositary, accompanied by registration instructions, the Company shall execute and the Trustee
shall authenticate and deliver any Debt Securities issuable in exchange for such Global Debenture
(or any portion thereof) in accordance with the instructions of the Depositary. The Trustee shall
not be liable for any delay in delivery of such instructions and may conclusively rely on, and
shall be fully protected in relying on, such instructions.



          (d) Every Debt Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Debenture or any portion thereof shall be authenticated and
delivered in the form of, and shall be, a Global Debenture, unless such Debt Security is registered
in the name of a Person other than the Depositary for such Global Debenture or a nominee thereof.



19









 





          (e) Debt Securities distributed to holders of Book-Entry Capital Securities (as defined in the
Trust Agreement) upon the dissolution of the Trust shall be distributed in the form of one or more
Global Debentures registered in the name of a Depositary or its nominee, and deposited with the
Debt Security Registrar, as custodian for such Depositary, or with such Depositary, for credit by
the Depositary to the respective accounts of the beneficial owners of the Debt Securities
represented thereby (or such other accounts as they may direct). Debt Securities distributed to
holders of Capital Securities other than Book-Entry Capital Securities upon the dissolution of the
Trust shall not be issued in the form of a Global Debenture or any other form intended to
facilitate book-entry trading in beneficial interests in such Debt Securities.



          (f) The Depositary or its nominee, as the registered owner of a Global Debenture, shall be the
holder of such Global Debenture for all purposes under this Indenture and the Debt Securities, and
owners of beneficial interests in a Global Debenture shall hold such interests pursuant to the
Applicable Depository Procedures. Accordingly, any such owner’s beneficial interest in a Global
Debenture shall be shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Depositary Participants. The Debt
Security Registrar and the Trustee shall be entitled to deal with the Depositary for all purposes
of this Indenture relating to a Global Debenture (including the payment of principal and interest
thereon and the giving of instructions or directions by owners of beneficial interests therein and
the giving of notices) as the sole holder of the Debt Security and shall have no obligations to the
owners of beneficial interests therein. Neither the Trustee nor the Debt Security Registrar shall
have any liability in respect of any transfers affected by the Depositary.



          (g) The rights of owners of beneficial interests in a Global Debenture shall be exercised only
through the Depositary and shall be limited to those established by law and agreements between such
owners and the Depositary and/or its Depositary Participants.



          (h) No holder of any beneficial interest in any Global Debenture held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such Global Debenture, and
such Depositary may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the owner of such Global Debenture for all purposes whatsoever. None of the Company,
the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability
for any aspect of the records relating to or payments made on account of beneficial ownership
interests of a Global Debenture or maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by a Depositary or impair, as between
a Depositary and such holders of beneficial interests, the operation of customary practices
governing the exercise of the rights of the Depositary (or its nominee) as holder of any Debt
Security.



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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
all payments due 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 Securityholders 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 interest payable in
respect 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 W-8 BEN (or any
substitute or successor form) establishing its non-U.S. status for U.S. federal income tax
purposes.



          (c) As of the date of this Indenture, the Company represents that it 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 represents 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 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
Wilmington, Delaware 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 provided in this Indenture 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 Principal Office of the Trustee. In case the Company shall fail to
maintain any such office or agency in Wilmington,



21









 




Delaware 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 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 Wilmington, Delaware or 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 Wilmington,
Delaware 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 all
payments due 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 Securityholders;




          (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 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 payments due on the Debt Securities, set aside, segregate and hold in trust for the benefit of
the Securityholders a sum sufficient to pay such payments 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 on the Debt Securities when the same
shall become due and payable.



          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 payments on the Debt Securities, deposit with a Paying Agent a sum
sufficient to pay all payments so becoming due, such sum to be held



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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.



          (e) The Company hereby initially appoints the Trustee to act as Paying Agent (the “Paying
Agent”).


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 of the
Company 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 subject to or
otherwise required to pay, or is required to withhold from distributions to holders of Trust
Securities, any additional taxes (including withholding 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 for distribution to holders of Trust Securities after paying all taxes
(including withholding taxes on distributions to holders of Trust Securities), duties, assessments
or other governmental charges will be equal to the amounts the Trust would have received and
retained for distribution to holders of Trust Securities after paying all taxes (including
withholding taxes on distributions to holders of Trust Securities), duties, assessments or other
governmental charges if no such additional 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 premium, if any, 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, notwithstanding



23









 




anything to the contrary contained in this Indenture or any Debt Security, 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.



Section 3.07 Compliance with Consolidation Provisions.




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


Section 3.08 Limitation on Dividends.




          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 distribution period as
provided herein and such period, or any extension thereof, shall have commenced and be continuing,
then the Company 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 or (C) make any payment under any guarantees of the Company that rank pari
passu in all respects with or junior in interest to the Capital Securities Guarantee (other than
(a) repurchases, redemptions or other acquisitions of shares of capital stock of the Company (I) 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, (II) in connection with a
dividend reinvestment or stockholder stock purchase plan or (III) 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 (i),
(ii) or (iii) above, (b) as a result of any exchange, reclassification, combination 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).



24









 




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 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 (c) 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


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 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.



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 Securityholders (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
Security 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 Securityholders (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 Securityholders
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



25









 




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 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 Securityholder, 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 Securityholders 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).


Section 4.03 Financial and Other Information.




          The Company shall deliver to each Securityholder (1) each Report on Form 10-K and Form 10-Q
prepared by the Company and filed with the Securities and Exchange



26









 




Commission in accordance with the Exchange Act within 7 days after the filing thereof, (2) if
the Company is not then (y) subject to Section 13 or 15(d) of the Exchange Act or (z) exempt from
reporting pursuant to Rule 12g3-2(b) thereunder, the Company shall be required to provide within 45
days of the end of each calendar quarterly period and 90 days after the end of each calendar year,
the information required to be provided by Rule 144A(d)(4) under the Securities Act and (3) within
30 days after the end of the fiscal year of the Company, Form 1099 or such other annual U.S.
federal income tax information statement required by the Code containing such information with
regard to the Debt Securities held by such Securityholder as is required by the Code and the income
tax regulations of the U.S. Treasury thereunder.




          The Company will cause copies of its regulatory reports to be delivered to the Holder promptly
following their filing with the Federal Reserve.



ARTICLE V




REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF
DEFAULT


Section 5.01 Events of Default.




          The following events 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 (unless the Company has elected and may defer interest payments pursuant to Section
2.11), and continuance of such default for a period of 30 days; 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 pursuant to Section 5.01 of this Indenture 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 or 3.09 of this Indenture, and continuance of such default
or breach for a period of 30 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 not less than 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



27









 





          (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 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 the 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 specified under clause (a) of this Section 5.01 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 any premium and
interest accrued, but unpaid, thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of Default specified
under clause (d), (e) or (f) of this Section 5.01 occurs, then, in each and every such case, the
entire principal amount of the Debt Securities and any premium and interest accrued, but unpaid,
thereon shall ipso facto become immediately due and payable without further action.
Notwithstanding anything to the contrary in this Section 5.01, if at any time during the period in
which this Indenture remains in force and effect, the Company ceases or elects to cease to be
subject to the supervision and regulations of the Federal Reserve, OTS, OCC or similar regulatory
authority overseeing bank, thrift, savings and loan or financial holding companies or similar
institutions requiring specifications for the treatment of capital similar in nature to the capital
adequacy guidelines under the Federal Reserve rules and regulations, then the first sentence of
this paragraph shall be deemed to include clauses (b) and (c) under this Section 5.01 as an Event
of Default resulting in an acceleration of payment of the Debt Securities to the same extent as
provided herein for clause (b) and (c).



          Anything in this Section 5.01 to the contrary notwithstanding, if an Event of Default
specified under clause (c) occurs and is continuing, then, and in each and every such case, the
Trustee, in its own name and as trustee of an express trust, shall pursue all available remedies at
law and/or equity against the Company. The Company acknowledges and affirms that in the event of
breach of such covenants and agreements referenced in clause (c) of this Section 5.01, the damages
to the holders of the Debt Securities and the Capital Securities may be difficult or impossible to
ascertain. Therefore, in addition to any remedies available at law for breach of any or all of
said covenants or agreements, the holders of the Debt Securities and the Capital Securities shall
be entitled to injunctive or other equitable relief in connection with the violation of any such
covenants or agreements referenced in Section 5.01(c).



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          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 all payments on the
Debt Securities which shall have become due otherwise than by acceleration (with interest upon all
such payments 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, if any, and (ii) all Events of Default under this Indenture, other than the
non-payment of the payments 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; provided,
however, that if the Debt Securities are held by the Trust or a trustee of the Trust, such waiver
or rescission and annulment shall not be effective until the holders of a majority in aggregate
liquidation amount of the outstanding Capital Securities of the Trust shall have consented to such
waiver or rescission and annulment.



          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 Securityholders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of the Company, the
Trustee and the Securityholders shall continue as though no such proceeding had been taken.


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




          The Company covenants that upon the occurrence of an Event of Default under paragraphs (a),
(d), (e) or (f) of Section 5.01 of the Indenture, the Company will pay to the Trustee, for the
benefit of the Securityholders, the whole amount that then shall have become due and payable on all
Debt Securities 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.



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          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 Securityholders 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.



          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 Securityholders.



          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 Securityholders, and it shall not be necessary to make
any Securityholders parties to any such proceedings.



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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, 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; and



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


Section 5.04 Proceedings by Securityholders.




          No Securityholder shall have any right to institute any suit, action or proceeding for any
remedy hereunder, unless such Securityholder 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 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 Securityholder shall have any right to prejudice the rights of any other
Securityholder, obtain priority or preference over any other such Securityholder or enforce any
right under this Indenture except in the manner herein provided and for the equal, ratable and
common benefit of all Securityholders.



          Notwithstanding any other provisions in this Indenture, however, the right of any
Securityholder 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 Securityholder. 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



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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
Securityholders, 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 Securityholder 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 and, if the Debt Securities are held by the Trust or
a trustee of the Trust, the holders of a majority in aggregate liquidation amount of the
outstanding Capital Securities of the Trust 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 if the Debt Securities are held by the Trust or a trustee of the Trust, such
time, method and place or such exercise, as the case may be, may not be so directed until the
holders of a majority in aggregate liquidation amount of the outstanding Capital Securities of the
Trust shall have directed such time, method and place or such exercise, as the case may be;
provided, further, that (subject to the provisions of Section 6.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by counsel 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 of acceleration, or ipso facto acceleration, of 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 the Trust, such waiver or modification to
such waiver shall not be effective until the holders of a majority in Liquidation Amount of the
Trust Securities of the Trust shall have consented to such waiver or



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modification to such waiver; provided, further, that if the consent of the
holder of each outstanding Debt Security is required, such waiver or modification to such waiver
shall not be effective until each holder of the outstanding Capital Securities of the Trust shall
have consented to such waiver or modification to such waiver. Upon any such waiver or modification
to such waiver, the Default or Event of Default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the Securityholders shall be restored
to their former positions and rights hereunder, respectively; but no such waiver or modification to
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 actual
knowledge or received written notice of the occurrence of a Default with respect to the Debt
Securities, mail to all Securityholders, as the names and addresses of such Securityholders appear
upon the Debt Security Register, notice of all Defaults with respect to the Debt Securities
actually 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), (e), and (f) 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 Securityholder by such Securityholder’s
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 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
(or, if such Debt Securities are held by the Trust or a trustee of the Trust, more than 10% in
liquidation amount of the outstanding Capital Securities), 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, or to any suit instituted in accordance with Section 14.12.



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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 person
would exercise or use under the circumstances in the conduct of such person’s 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 the 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 the 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 on their face to the
requirements of this Indenture;



          (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;



          (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;



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          (d) 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
Securityholder, except with respect to an Event of Default pursuant to Sections 5.01 (a) or 5.01
(b) hereof (other than an Event of Default resulting from the default in the payment of Additional
Interest or premium, if any, if the Trustee does not have actual knowledge or written notice that
such payment is due and payable), of which the Trustee shall be deemed to have knowledge; and



          (e) in the absence of bad faith on the part of the Trustee, the Trustee may seek and rely on
reasonable instructions from the Company.



          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 in good
faith 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
reasonably 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 the 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



35









 




their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs;




          (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; and



          (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.


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 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 President, the Chief Operating Officer, a Vice
President, the Treasurer or an Assistant Treasurer of the Company.



36









 




Section 6.06 Compensation and Expenses of Trustee.




          Other than as provided in the Fee Agreement of even date herewith, 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 reasonable
expenses and disbursements of its counsel and of all Persons not regularly in its employ) except
any such expense, disbursement or advance that arises from its negligence, willful misconduct or
bad faith. The Company also covenants to indemnify each of the Trustee (including in its
individual capacity) and 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), except to the extent
such loss, damage, claim, liability or expense results from the negligence, willful misconduct or
bad faith of such indemnitee, 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 or 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 (and the Company hereby grants and pledges to the Trustee) 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,
willful misconduct 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, in the
absence of negligence, willful misconduct 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.



37









 




Section 6.08 Eligibility of Trustee.




          The Trustee hereunder shall at all times be a U.S. Person that is a banking corporation or
national association 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 fifty million U.S.
dollars ($50,000,000) and subject to supervision or examination by federal, state, or District of
Columbia authority. If such corporation or national association 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 or national association 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 or
national association 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, Calculation Agent, Paying Agent or Debt
Security Registrar.




          (a) The Trustee, or any trustee or trustees hereafter appointed, the Calculation Agent, the
Paying Agent and any Debt Security Registrar 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
Securityholders 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 or successors
by written instrument, in duplicate, executed by order of its Board of Directors, one copy of which
instrument shall be delivered to the resigning party and one copy to the successor. If no
successor 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 party may
petition any court of competent jurisdiction for the appointment of a successor, 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 or herself and all
others similarly situated, petition any such court for the appointment of a successor. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor.



          (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 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, if no successor Trustee shall have been so appointed and
have accepted appointment within 30 days of the occurrence of any of (1), (2) or (3) above, 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 or herself 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 a 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 Securityholder 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, the Calculation Agent, the Paying Agent and any
Debt Security Registrar and appointment of a successor pursuant to any of the provisions of this
Section 6.09 shall become effective upon acceptance of appointment by the successor as provided in
Section 6.10.


Section 6.10 Acceptance by Successor.




          Any successor Trustee, Calculation Agent, Paying Agent or Debt Security Registrar appointed as
provided in Section 6.09 shall execute, acknowledge and deliver to the Company and to its
predecessor an instrument accepting such appointment hereunder, and thereupon the resignation or
removal of the retiring party shall become effective and such successor, 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,



39









 




with like effect as if originally named herein; but, nevertheless, on the written request of
the Company or of the successor, the party ceasing to act shall, upon payment of the amounts then
due it pursuant to the provisions of Section 6.06, execute and deliver an instrument transferring
to such successor all the rights and powers of the party so ceasing to act and shall duly assign,
transfer and deliver to such successor all property and money held by such retiring party
hereunder. Upon request of any such successor, the Company shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such successor all such rights
and powers. Any party ceasing to act shall, nevertheless, retain a lien upon all property or funds
held or collected 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 and qualified under the provisions
of Section 6.08.



          In no event shall a retiring Trustee, Calculation Agent, Paying Agent or Debt Security
Registrar be liable for the acts or omissions of any successor hereunder.



          Upon acceptance of appointment by a successor Trustee, Calculation Agent, Paying Agent or Debt
Security Registrar as provided in this Section 6.10, the Company shall mail notice of the
succession to the Securityholders 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, the successor shall cause such notice to be mailed at the expense
of the Company.


Section 6.11 Succession by Merger, etc.




          Any Person into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any Person 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 Person shall be otherwise eligible and qualified under this Article.



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          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 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 Person
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 Person
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
Person shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time 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 Person into which any Authenticating Agent may be merged or converted or with which it may
be consolidated, or any Person resulting from any merger, consolidation or conversion to which any
Authenticating Agent shall be a party, or any Person 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 Person 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



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6.12, shall give written notice of such appointment to the Company and shall mail notice of
such appointment to all Securityholders as the names and addresses of such Securityholders 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.




          Other than as provided in the Fee Agreement of even date herewith, 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 and shall receive such reasonable indemnity as it
may require against the costs, expenses and liabilities incurred in furtherance of its duties under
this Section 6.12.



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 or aggregate Liquidation Amount of the Capital
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 or
holders of Capital Securities, as the case may be, in person or by agent or proxy appointed in
writing, or (b) by the record of such Securityholders voting in favor thereof at any meeting of
such Securityholders duly called and held in accordance with the provisions of Article VIII, or of
such holders of Capital Securities duly called and held in accordance with the provisions of the
Declaration, or (c) by a combination of such instrument or instruments and any such record of such
a meeting of such Securityholders or holders of Capital Securities, as the case may be, 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 holders 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



42









 




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.



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 such Securityholder’s 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 such Person 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 Securityholder for the time being or upon such
Securityholder’s 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 (other than the Trust) 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



43









 




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.



Section 7.05 Revocation of Consents; Future Securityholders 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 Securityholder
(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 Securityholder 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.



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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 or Wilmington, Delaware, 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 be mailed to Securityholder 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 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 be (a) 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 deem appropriate.



          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 at the meeting.



          Subject to the provisions of Section 7.04, at any meeting each Securityholder with respect to
which such meeting is being held or proxy therefor shall be entitled to one vote for



45









 




each $1,000 principal amount of Debt Securities held or represented by such Securityholder;
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 such chairman or instruments in writing as aforesaid duly designating such
chairman as the Person to vote on behalf of other Securityholders. Any meeting of Securityholders
duly called 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 Securityholders with respect to which
such meeting is being held shall be by written ballots on which shall be subscribed the signatures
of such Securityholders 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 outstanding 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 outstanding principal amount of the Debt Securities, the Persons holding
or representing such specified percentage in outstanding 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



46









 




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 outstanding principal amount of the
Debt Securities which shall constitute a quorum.




          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 not less than a majority in
outstanding 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 outstanding 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 not less than such specified percentage in outstanding principal
amount of the Debt Securities.



          Any resolution passed or decision taken at any meeting of Securityholders duly held in
accordance with this Section shall be binding on all the Securityholders, whether or not present or
represented at the meeting.


Section 8.08 Written Consent Without a Meeting.




          Whenever under this Indenture, Securityholders are required or permitted to take any action by
vote, such action may be taken without a meeting on written consent, setting forth the action so
taken, signed by the Securityholders of all outstanding Debt Securities entitled to vote thereon.
No consent shall be effective to take the action referred to therein unless, within sixty days of
the earliest dated consent delivered in the manner required by this paragraph to the Trustee,
written consents signed by a sufficient number of Securityholders to take action are delivered to
the Trustee at its Principal Office. Delivery made to the Trustee at its Principal Office, shall
be by hand or by certificated or registered mail, return receipt requested. Written consent thus
given by the Securityholders of such number of Debt Securities as is required hereunder, shall have
the same effect as a valid vote of Securityholders of such number of Debt Securities.



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 Person to the Company, or successive successions,
and the assumption by the successor Person of the covenants, agreements and obligations of the
Company, pursuant to Article XI hereof;



47









 





          (b) to add to the covenants of the Company such further covenants, restrictions or conditions
for the protection of the Securityholders as the Board of Directors shall consider to be for the
protection of the Securityholders, 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 or amend 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 Securityholders;



          (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
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 applicable to Capital Securities
shall not be deemed to adversely affect the Securityholders);



          (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 Securityholders.



          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.



48









 





          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 Securityholders 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 Securityholders;
provided, however, that no such supplemental indenture shall without such consent
of the holders of each Debt Security then outstanding and affected thereby (i) extend the Maturity
Date of any Debt Security, or reduce the principal amount thereof or any premium thereon, or reduce
the rate (or manner of calculation of the rate) or extend the time of payment of interest thereon,
or reduce (other than as a result of the maturity or earlier redemption of any such Debt Security
in accordance with the terms of this Indenture and such Debt Security) or increase the aggregate
principal amount of Debt Securities then outstanding, or change any of the redemption provisions,
or make the principal thereof or any interest or premium thereon payable in any coin or currency
other than United States Dollars, 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
Securityholder, 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 Amount of the
outstanding Capital 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 outstanding Capital 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 (and holders of Capital Securities, if required) 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 as their names and addresses appear upon the Debt
Security Register. Any failure of the Trustee to mail such notice,



49









 




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 Securityholders 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 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 any regulatory authority with jurisdiction over the Company if such approval is then
required under applicable capital guidelines or policies of such regulatory authority, to redeem
the Debt Securities, in whole or (provided that all accrued and unpaid



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interest has been paid on all Debt Securities for all Interest Payment Periods terminating on
or prior to such date) from time to time in part, on any March 15, June 15, September 15 or
December 15 on or after December 15, 2016 (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 any regulatory authority with jurisdiction over
the Company if such approval is then required under applicable capital guidelines or policies of
such regulatory authority, to redeem the Debt Securities, in whole or 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, or cause the
Trustee to mail (at the expense of the Company) a notice of such redemption at least 30 and not
more than 60 days prior to the date fixed for redemption to the Securityholders 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 Securityholder 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.



          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 (or manner of calculation of
the 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 the Special Redemption Date
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 unpaid interest accrued to such date.



          The Company will give the Trustee notice not less than 45 nor more than 60 days prior to the
Redemption Date as to the Redemption Price at which the Debt Securities are to be



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redeemed and 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 (unless the Company shall default in the payment of such Debt Securities at the redemption
price, together with unpaid interest accrued thereon 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 unpaid 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.



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 all or substantially all of the property or capital stock of the
Company or its successor or successors, 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, (i) upon any
such consolidation, merger (where the Company is not the surviving corporation), sale, conveyance,
transfer or other disposition, the successor entity shall be a corporation organized and existing
under the laws of the United States or any state thereof or the District of Columbia (unless such
corporation has (1) agreed to make all payments due in respect of the Debt Securities or, if
outstanding, the Capital Securities and Capital Securities Guarantee without withholding or
deduction for, or on account of, any taxes, duties, assessments or other governmental charges under
the laws or regulations of the jurisdiction of organization or residence (for tax purposes) of such
corporation or any political subdivision or taxing authority thereof or therein unless



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required by applicable law, in which case such corporation shall have agreed to pay such
additional amounts as shall be required so that the net amounts received and retained by the
Securityholders or holders of Capital Securities, as the case may be, after payment of all taxes
(including withholding taxes), duties, assessments or other governmental charges, will be equal to
the amounts that such Securityholders or holders of Capital Securities would have received and
retained had no such taxes (including withholding taxes), duties, assessments or other governmental
charges been imposed, (2) irrevocably and unconditionally consented and submitted to the
jurisdiction of any United States federal court or New York state court, in each case located in
The City of New York, Borough of Manhattan, in respect of any action, suit or proceeding against it
arising out of or in connection with this Indenture, the Debt Securities, the Capital Securities
Guarantee or the Declaration and irrevocably and unconditionally waived, to the fullest extent
permitted by law, any objection to the laying of venue in any such court or that any such action,
suit or proceeding has been brought in an inconvenient forum and (3) irrevocably appointed an agent
in The City of New York for service of process in any action, suit or proceeding referred to in
clause (2) above) and such corporation expressly assumes all of the obligations of the Company
under the Debt Securities, this Indenture, the Capital Securities Guarantee and the Declaration and
(ii) after giving effect to any such consolidation, merger, sale, conveyance, transfer or other
disposition, no Default or Event of Default shall have occurred and be continuing.



Section 11.02 Successor Entity to be Substituted.




          In case of any such consolidation, merger, sale, conveyance, transfer or other disposition
contemplated in Section 11.01 and upon the assumption by the successor entity, by supplemental
indenture, executed and delivered to the Trustee and reasonably 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, 3.01, 3.02, 3.04, 6.06, 6.09 and 12.04 hereof, which shall survive until
such Debt Securities shall mature or are redeemed, as the case may be, and are paid in full.
Thereafter, Sections 6.06, 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



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through any Paying Agent (including the Company if acting as its own Paying Agent), to the
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 the Company 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 Securityholders 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 Securityholder 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, OFFICERS AND DIRECTORS


Section 13.01 Indenture and Debt Securities Solely Corporate 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, officer, director, employee or agent,
as such, past, present or future, of the Company or of any predecessor or successor corporation of
the Company, either directly or through the Company or any successor corporation 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.



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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.


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
hereunder 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 such purpose) to
the Company at:



EverBank Financial Corp

8100 Nations Way

Jacksonville, Florida 32256

Attention: Jeffrey L. Smiley



          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 Wells Fargo Bank, National Association at:



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919 Market Street

Suite 700

Wilmington, DE 19801

Attention: Corporate Trust Division



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 of said State other than
Section 5 1401 of the New York General Obligations Law.


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 (except
that no such Opinion of Counsel is required to be furnished to the Trustee in connection with the
authentication and issuance of Debt Securities issued on the date of this Indenture).



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


Section 14.07 Non-Business Days.




          Notwithstanding anything to the contrary contained herein, if any Interest Payment Date, other
than on the Maturity Date, any Redemption Date or the Special Redemption Date, falls on a day that
is not a Business Day, then any interest payable will be paid on, and such Interest Payment Date
will be moved to, the next succeeding Business Day, and additional interest will accrue for each
day that such payment is delayed as a result thereof. If the Maturity Date, any Redemption Date or
the Special Redemption Date falls on a day that is not a Business Day, then the principal, premium,
if any, and/or interest payable on such date will be paid on the next succeeding Business Day, and
no additional interest will accrue in respect of such payment made on such next succeeding Business
Day (except that, if such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day).



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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 Severability.




          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.




          Subject to Article XI, 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, however, 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 enforce its
rights under this Indenture as the Securityholder 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



58









 




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 (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 Securityholder, 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 payments due 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 applicable 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 and such Senior Indebtedness has not been paid in full, then, in either case,
no payment shall be made by the Company with respect to the payments due 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, 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.



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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 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.



          For purposes of this Article XV, the words “cash, property or securities” shall not be deemed
to include shares of stock of the Company as reorganized or readjusted, or securities of the
Company or any other corporation 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
corporation, 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 corporation or the liquidation or dissolution of the Company following the
conveyance or transfer or other disposition of its property as an entirety,



60









 




or substantially as an entirety, to another corporation upon the terms and conditions provided
for in Article XI 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 corporation shall, as a part of
such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article XI
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 all payments due 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 Securityholders 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 Securityholders, 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 Securityholders, the
obligation of the Company, which is absolute and unconditional, to pay to the Securityholders all
payments 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 Securityholders 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 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.




61











 




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 moneys 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 moneys 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 or
herself 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
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






62









 







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 owe or 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 Securityholder 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 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; (c) 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.




          Wells Fargo Bank, National Association, in its capacity as Trustee, hereby accepts the trusts
in this Indenture declared and provided, upon the terms and conditions herein above set forth.









63









 








          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.




	 	 	 	 	 	 	 	 	 

	 	 	EverBank Financial Corp	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Robert M. Clements	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Robert M. Clements	 	 
	 

	 	 	 	Title:
	 	Chairman & CEO	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Wells Fargo Bank, National Association, as
Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	/s/ Tracy M. McLamb	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	Tracy M. McLamb	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:	 	Vice President	 	 
	 

	 	 	 	 	 	 	 	 










 









 








EXHIBIT A




FORM OF JUNIOR SUBORDINATED DEBT SECURITY

DUE 2036



[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 144A UNDER THE
SECURITIES ACT (“RULE 144A”), TO A PERSON THE HOLDER 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 A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT 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 SUCH 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 (E) 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 (D) OR (E) 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 BY ITS ACCEPTANCE HEREOF AGREES THAT IT
WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.








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          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 OF THIS SECURITY WILL DELIVER TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES 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 PRINCIPAL 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 PRINCIPAL 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






A-2









 







CLAIMS OF GENERAL AND SECURED CREDITORS OF THE COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN
BY THE COMPANY OR ANY OF ITS SUBSIDIARIES AND IS NOT SECURED.








A-3









 








Form of Junior Subordinated Debt Security due 2036




of



EverBank Financial Corp



          EverBank Financial Corp, a savings and loan holding company incorporated in Florida (the
“Company”), for value received promises to pay to Wells Fargo Bank, National Association, not in
its individual capacity but solely as Institutional Trustee for EverBank Financial Preferred Trust
VII, a Delaware statutory trust (the “Securityholder”), or registered assigns, the principal sum of
Twenty Million Six Hundred Nineteen Thousand Dollars on December 15, 2036 and to pay interest on
said principal sum from December 14, 2006, 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, quarterly
(subject to deferral as set forth herein) in arrears on March 15, June 15, September 15 and
December 15 of each year commencing March 15, 2007, at the rate of 6.735% (the “Fixed Rate”) per
annum until December 15, 2016 (the “Fixed Rate Period”) and thereafter at a variable per annum rate
equal to LIBOR (as defined in the Indenture) plus 1.74% (the “Variable Rate”) (“Interest Rate” is
defined to include the Fixed Rate and the Variable Rate, as applicable) (provided,
however, that the Interest Rate for any Interest Payment Period may not exceed the highest
rate permitted by New York law, as the same may be modified by United States law of general
applicability) 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 the
Interest Rate in effect for each such Extension Period compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed during the Fixed Rate Period on the
basis of a 360-day year of twelve 30-day months, and thereafter on the basis of a 360-day year and
the actual number of days elapsed in the relevant interest period. Notwithstanding anything to the
contrary contained herein, if any Interest Payment Date, other than on the Maturity Date, any
Redemption Date (to the extent redeemed) or the Special Redemption Date, falls on a day that is not
a Business Day, then any interest payable will be paid on, and such Interest Payment Date will be
moved to, the next succeeding Business Day, and additional interest will accrue for each day that
such payment is delayed as a result thereof. If the Maturity Date, any Redemption Date or the
Special Redemption Date falls on a day that is not a Business Day, then the principal, premium, if
any, and/or interest payable on such date will be paid on the next succeeding Business Day, and no
additional interest will accrue (except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day). 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
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. Any such
interest installment not punctually paid or duly provided for shall forthwith cease to be payable
to the registered Securityholders on such regular 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






A-4









 







Securityholders 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
Securityholder at such address as shall appear in the Debt Security Register or by wire transfer of
immediately available funds 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 premium, if any, and interest on this Debt Security
shall be made in immediately available funds when due at such place and to such account as may be
designated by the Institutional Trustee. All payments in respect of this Debt Security shall be
payable 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.




          Upon submission of Notice (as defined in the Indenture) and so long as no Event of Default
pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of the Indenture has occurred and is
continuing, the Company shall have the right under the Indenture, from time to time and without
causing an Event of Default, to defer payments of interest on the Debt Securities by extending the
interest distribution period on the Debt Securities at any time and from time to time during the
term of the Debt Securities, for up to 20 consecutive quarterly periods (each such extended
interest distribution 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 an annual rate equal to the Interest Rate applicable during such
Extension Period, compounded quarterly from the date such Deferred Interest would have been payable
were it not for the Extension Period, 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, Redemption Date (to
the extent redeemed) or Special Redemption Date; and provided, further, however, during any such
Extension Period, the Company 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 premium, if any, or interest 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 or (iii) make any payment under any guarantees of the
Company that rank in all respects pari passu with or junior in respect to the Capital Securities
Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock
of the Company (A) 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,
(B) in connection with a dividend reinvestment or stockholder stock purchase plan or (C) 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, reclassification,
combination 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






A-5









 







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 20 consecutive quarterly periods, or extend beyond the Maturity
Date, Redemption Date (to the extent redeemed) or Special Redemption 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 Deferred Interest shall
accrue upon each installment of interest that would otherwise have been due and payable during such
Extension Period until such installment is paid. The Company must give the Trustee notice of its
election to begin or extend an Extension Period (“Notice”) not later than the related regular
record date for the relevant Interest Payment Date. The Notice shall describe, in reasonable
detail, why the Company has elected to begin an Extension Period. The Notice shall acknowledge and
affirm the Company’s understanding that, as specified in the Indenture, it is prohibited from
issuing dividends and other distributions during the Extension Period. The Trustee shall give
notice of the Company’s election to begin an Extension Period to the Initial Purchaser and the
Securityholders.




          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 such Securityholder’s behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee such Securityholder’s attorney-in-fact for any and all such
purposes. Each holder hereof, by such holder’s 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 Securityholder upon said provisions.




          The Company waives diligence, presentment, demand for payment, notice of nonpayment, notice of
protest, and all other demands and notices.




          This Debt Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not 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.








A-6









 








          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.








A-7









 








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




	 	 	 	 	 
	 	EverBank Financial Corp

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



Dated:                                         , 2006




CERTIFICATE OF AUTHENTICATION




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




	 	 	 	 	 
	 	Wells Fargo Bank, National Association, not in

   its individual capacity but solely as the

   Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



Dated:                                         , 2006









A-8









 








[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 December 14, 2006,
duly executed and delivered between the Company and Wells Fargo Bank, National Association, 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 (each a “Special Event”), this Debt Security may become due and payable, in whole
or 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. In the event that the Special Redemption Date falls on a day after
the Fixed Rate Period but prior to the LIBOR Determination Date for any Interest Payment Period,
then the Company shall be required to pay to Securityholders, on the Business Day following such
LIBOR Determination Date, any additional amount of interest that would have been payable on the
Special Redemption Date had the amount of interest determined on such LIBOR Determination Date been
known on the first day of such Interest Payment Period. 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 March 15, June
15, September 15 or December 15 on or after December 15, 2016 (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 any regulatory authority with jurisdiction over the Company if such
approval is then required under applicable capital guidelines or policies of such regulatory
authority, 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 100% of the principal amount of the Debt Securities being redeemed
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 if such
Special Redemption Date is on or after December 15, 2016.




          “Special Redemption Price” means (1) if the Special Redemption Date is before December 15,
2016, One Hundred Five Percent (105%) of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption and (2) if the Special Redemption Date is on
or after December 15, 2016, the Redemption Price for such Special Redemption Date.








A-9









 








          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 Securityholder
hereof upon the cancellation hereof.




          Upon the occurrence of an Event of Default pursuant to paragraphs (a), (d), (e) or (f), of
Section 5.01 of the Indenture, the principal of all of the Debt Securities may be declared, and in
certain cases shall ipso facto become, due and payable, and upon such 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 Securityholders; 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) change the Maturity Date of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or manner of calculation of the
rate or extend the time of payment of interest thereon, or reduce (other than as a result of the
maturity or earlier redemption of any such Debt Security in accordance with the terms of the
Indenture and such Debt Security) or increase the aggregate principal amount of Debt Securities
then outstanding, or change any of the redemption provisions, or make the principal thereof or any
interest or premium thereon payable in any coin or currency other than that of the United States
that at the time of payment is legal tender for payment of public and private debts, or impair or
affect the right of any Securityholder 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, on behalf of
all of the Securityholders, 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) a default in payments due in respect of any of the Debt Securities; (b) in respect of covenants
or provisions of the Indenture which cannot be modified or amended without the consent of the
holder of each Debt Security affected, or (c) in respect of the covenants of the Company relating
to its ownership of Common Securities of the Trust. 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 Securityholder 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 all payments due on this Debt Security at the time and place and at the rate and in the
money herein prescribed.








A-10









 








          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 Wilmington, Delaware 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 such Securityholder’s 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 the principal of and premium, if any, and interest
on this 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.




          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 corporation, 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 Securityholder 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 (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).









A-11









 








AMENDED AND RESTATED DECLARATION




OF TRUST



EVERBANK FINANCIAL PREFERRED TRUST VII



Dated as of December 14, 2006



 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	INTERPRETATION AND DEFINITIONS

	 
	 	 	 	 
	SECTION 1.1 Definitions
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

	ORGANIZATION

	 
	 	 	 	 
	SECTION 2.1 Name
	 	 	9	 
	SECTION 2.2 Office
	 	 	9	 
	SECTION 2.3 Purpose
	 	 	9	 
	SECTION 2.4 Authority
	 	 	9	 
	SECTION 2.5 Title to Property of the Trust
	 	 	10	 
	SECTION 2.6 Powers and Duties of the Trustees and the Administrators
	 	 	10	 
	SECTION 2.7 Prohibition of Actions by the Trust and the Trustees
	 	 	15	 
	SECTION 2.8 Powers and Duties of the Institutional Trustee
	 	 	15	 
	SECTION 2.9 Certain Duties and Responsibilities of the Trustees and the Administrators
	 	 	17	 
	SECTION 2.10 Certain Rights of Institutional Trustee
	 	 	19	 
	SECTION 2.11 Delaware Trustee
	 	 	21	 
	SECTION 2.12 Execution of Documents
	 	 	21	 
	SECTION 2.13 Not Responsible for Recitals or Issuance of Securities
	 	 	21	 
	SECTION 2.14 Duration of Trust
	 	 	22	 
	SECTION 2.15 Mergers
	 	 	22	 
	 
	 	 	 	 
	ARTICLE III

	SPONSOR

	 
	 	 	 	 
	SECTION 3.1 Sponsor’s Purchase of Common Securities
	 	 	24	 
	SECTION 3.2 Responsibilities of the Sponsor
	 	 	24	 
	 
	 	 	 	 
	ARTICLE IV

	TRUSTEES AND ADMINISTRATORS

	 
	 	 	 	 
	SECTION 4.1 Number of Trustees
	 	 	24	 
	SECTION 4.2 Delaware Trustee
	 	 	24	 






-i-









 






	 	 	 	 	 
	 	 	Page
	SECTION 4.3 Institutional Trustee; Eligibility
	 	 	25	 
	SECTION 4.4 Certain Qualifications of the Delaware Trustee Generally
	 	 	25	 
	SECTION 4.5 Administrators
	 	 	25	 
	SECTION 4.6 Initial Delaware Trustee
	 	 	26	 
	SECTION 4.7 Appointment, Removal and Resignation of the Trustees and the Administrators
	 	 	26	 
	SECTION 4.8 Vacancies Among Trustees
	 	 	28	 
	SECTION 4.9 Effect of Vacancies
	 	 	28	 
	SECTION 4.10 Meetings of the Trustees and the Administrators
	 	 	28	 
	SECTION 4.11 Delegation of Power
	 	 	28	 
	SECTION 4.12 Merger, Conversion, Consolidation or Succession to Business
	 	 	29	 
	 
	 	 	 	 
	ARTICLE V

	DISTRIBUTIONS

	 
	 	 	 	 
	SECTION 5.1 Distributions
	 	 	29	 
	 
	 	 	 	 
	ARTICLE VI

	ISSUANCE OF SECURITIES

	 
	 	 	 	 
	SECTION 6.1 General Provisions Regarding Securities
	 	 	29	 
	SECTION 6.2 Paying Agent, Transfer Agent, Calculation Agent and Registrar
	 	 	31	 
	SECTION 6.3 Form and Dating
	 	 	31	 
	SECTION 6.4 Book-Entry Capital Securities
	 	 	32	 
	SECTION 6.5 Mutilated, Destroyed, Lost or Stolen Certificates
	 	 	34	 
	SECTION 6.6 Temporary Securities
	 	 	34	 
	SECTION 6.7 Cancellation
	 	 	34	 
	SECTION 6.8 Rights of Holders; Waivers of Past Defaults
	 	 	34	 
	 
	 	 	 	 
	ARTICLE VII

	DISSOLUTION AND TERMINATION OF TRUST

	 
	 	 	 	 
	SECTION 7.1 Dissolution and Termination of Trust
	 	 	36	 
	 
	 	 	 	 
	ARTICLE VIII

	TRANSFER OF INTERESTS

	 
	 	 	 	 
	SECTION 8.1 General
	 	 	37	 
	SECTION 8.2 Transfer Procedures and Restrictions
	 	 	38	 
	SECTION 8.3 Deemed Security Holders
	 	 	41	 






-ii-









 






	 	 	 	 	 
	 	 	Page
	ARTICLE IX

	LIMITATION OF LIABILITY OF HOLDERS

	OF SECURITIES, TRUSTEES OR OTHERS

	 
	 	 	 	 
	SECTION 9.1 Liability
	 	 	42	 
	SECTION 9.2 Exculpation
	 	 	42	 
	SECTION 9.3 Fiduciary Duty
	 	 	43	 
	SECTION 9.4 Indemnification
	 	 	43	 
	SECTION 9.5 Outside Businesses
	 	 	46	 
	SECTION 9.6 Compensation; Fee
	 	 	47	 
	 
	 	 	 	 
	ARTICLE X

	ACCOUNTING

	 
	 	 	 	 
	SECTION 10.1 Fiscal Year
	 	 	47	 
	SECTION 10.2 Certain Accounting Matters
	 	 	47	 
	SECTION 10.3 Banking
	 	 	48	 
	SECTION 10.4 Withholding
	 	 	48	 
	 
	 	 	 	 
	ARTICLE XI AMENDMENTS AND MEETINGS

	 
	 	 	 	 
	SECTION 11.1 Amendments
	 	 	49	 
	SECTION 11.2 Meetings of the Holders of the Securities; Action by Written Consent
	 	 	51	 
	 
	 	 	 	 
	ARTICLE XII

	REPRESENTATIONS OF INSTITUTIONAL TRUSTEE

	AND DELAWARE TRUSTEE

	 
	 	 	 	 
	SECTION 12.1 Representations and Warranties of Institutional Trustee
	 	 	52	 
	SECTION 12.2 Representations and Warranties of Delaware Trustee
	 	 	53	 
	 
	 	 	 	 
	ARTICLE XIII MISCELLANEOUS

	 
	 	 	 	 
	SECTION 13.1 Notices
	 	 	54	 
	SECTION 13.2 Governing Law
	 	 	55	 
	SECTION 13.3 Submission to Jurisdiction
	 	 	55	 
	SECTION 13.4 Intention of the Parties
	 	 	56	 
	SECTION 13.5 Headings
	 	 	56	 
	SECTION 13.6 Successors and Assigns
	 	 	56	 
	SECTION 13.7 Partial Enforceability
	 	 	56	 






-iii-









 






	 	 	 	 	 
	 	 	Page
	SECTION 13.8 Counterparts
	 	 	56	 






ANNEXES AND EXHIBITS




ANNEX I        Terms of Capital Securities and Common Securities




EXHIBIT A-1 Form of Capital Security Certificate




EXHIBIT A-2 Form of Common Security Certificate









-iv-









 








AMENDED AND RESTATED DECLARATION OF TRUST




OF



EverBank Financial Preferred Trust VII



December 14, 2006



     AMENDED AND RESTATED DECLARATION OF TRUST (this “Declaration”), dated and effective as of
December 14, 2006, 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 EverBank
Financial Preferred Trust VII (the “Trust”), a statutory trust under the Statutory Trust Act (as
defined herein), pursuant to a Declaration of Trust, dated as of December 12, 2006 (the “Original
Declaration”), and a Certificate of Trust filed with the Secretary of State of the State of
Delaware on December 12, 2006, 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 the Debentures (as defined herein) of the Debenture Issuer (as defined herein) in
connection with the issuance of the Capital Securities (as defined herein);



     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 trust under the Statutory Trust Act and that this Declaration constitutes the governing
instrument of such statutory trust, and 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, and, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties, intending to be
legally bound hereby, amend and restate in its entirety the Original Declaration and agree as
follows:



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 or
elsewhere herein have the respective meanings assigned to them in this Section 1.1 or, if not
defined in this Section 1.1 or elsewhere herein, 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 Thomas A. Hajda and W. Blake Wilson, solely in such Person’s
capacity as Administrator of the Trust 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.



     “Applicable Depositary Procedures” means, with respect to any transfer or transaction
involving a Book-Entry Capital Security, the rules and procedures of the Depositary for such
Book-Entry Capital Security, in each case to the extent applicable to such transaction and as in
effect from time to time.



     “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





2









 







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.




     “Book-Entry Capital Security” means a Capital Security, the ownership and transfers of which
shall be made through book entries by a Depositary.



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



     “Calculation Agent” has the meaning set forth in Section 1.01 of the Indenture.



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



     “Capital Security Certificate” means a definitive Certificate registered in the name of the
Holder representing Capital Securities, which shall be substantially in the form attached hereto as
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 Purchase Agreement .



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



     “Commission” means the United States 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.



     “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 919 Market Street Suite 700 Wilmington, DE 19801,
Attention: Corporate Trust Division.



     “Coupon Rate” has the meaning set forth in paragraph 2(a) of Annex I.



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 EverBank Financial Corp, a savings and loan holding company
incorporated in Florida, in its capacity as issuer of the Debentures under the Indenture.



     “Debenture Trustee” means Wells Fargo Bank, National Association, a national banking
association with its principal place of business in the State of Delaware, not in its individual
capacity but solely as trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.



     “Debentures” means the Junior Subordinated Debt Securities due December 15, 2036 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 Coupon Rate applicable during such Extension Period,
compounded quarterly 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.



     “Depositary” means an organization registered as a clearing agency under the Exchange Act that
is designated as Depositary by the Sponsor or any successor thereto. DTC will be the initial
Depositary.



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



     “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(e) of Annex I.



     “Distribution Payment Period” means the period from and including a Distribution Payment Date,
or in the case of the first Distribution Payment Period, the original date of issuance of the
Securities, to, but excluding, the next succeeding Distribution Payment Date or, in the case of the
last Distribution Payment Period, the Redemption Date, Special Redemption Date or Maturity Date
(each as defined in the Indenture), as the case may be, for the related Debentures.



4









 





     “DTC” means The Depository Trust Company or any successor thereto.



     “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(e) of Annex I.



     “Fiduciary Indemnified Person” shall mean each of the Institutional Trustee (including in its
individual capacity), the Delaware Trustee (including in its individual capacity), 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 or the Delaware Trustee.



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



     “Fixed Rate” has the meaning set forth in paragraph 2(a) of Annex I.



     “Global Capital Security” means a Capital Securities Certificate evidencing ownership of
Book-Entry Capital Securities.



     “Guarantee” means the Guarantee Agreement, dated as of December 14, 2006, of the Sponsor in
respect of the Capital Securities.



     “Holder” means a Person in whose name a Certificate representing a Security is registered on
the register maintained by or on behalf of the Registrar, such Person being a beneficial owner
within the meaning of the Statutory Trust Act.



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



     “Indenture” means the Indenture, dated as of December 14, 2006, 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.



     “Initial Purchaser” means the initial purchaser of the Capital Securities.



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



     “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.



5









 





     “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).



     “LIBOR” means the London Interbank Offered Rate for U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to paragraph 2(b) of Annex I.



     “LIBOR Banking Day” has the meaning set forth in paragraph 2(b)(1) of Annex I.



     “LIBOR Business Day” has the meaning set forth in paragraph 2(b)(1) of Annex I.



     “LIBOR Determination Date” has the meaning set forth in paragraph 2(b)(1) of Annex I.



     “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 Holders 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.



     “Notice” has the meaning set forth in Section 2.11 of the Indenture.



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



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



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



     (e) 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



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



     “Owner” means each Person who is the beneficial owner of Book-Entry Capital Securities as
reflected in the records of the Depositary or, if a Depositary Participant is not the beneficial
owner, then the beneficial owner as reflected in the records of the Depositary Participant.



6









 





     “Paying Agent” has the meaning set forth 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.



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



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



     “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.



     “Redemption Date” 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.



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



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



     “Responsible Officer” means, with respect to the Institutional Trustee, any officer within the
Corporate Trust Office of the Institutional Trustee with direct responsibility for the
administration of this Declaration, 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 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.



7









 





     “Securities” means the Common Securities and the Capital Securities, as applicable.



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



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



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



     “Sponsor” means EverBank Financial Corp, a savings and loan holding company that is a U.S.
Person incorporated in Florida, or any successor entity in a merger, consolidation or amalgamation
that is a U.S. Person, in its capacity as sponsor of the Trust.



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



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



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



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



     “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.



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



     “Transfer Notice” has the meaning set forth in Section 8.2(e).



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



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



8









 





     “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 in Section 7701(a)(30) of the Code.



ARTICLE II

ORGANIZATION




     SECTION 2.1 Name. The Trust is named “EverBank Financial Preferred Trust VII,” as such name may be modified from
time to time by the Administrators following written notice to the Institutional Trustee and 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 8100 Nations Way, Jacksonville, Florida 32256. On ten Business
Days’ written notice to the Institutional Trustee and 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.



     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, (c) to facilitate direct investment in the
assets of the Trust through issuance of the Common Securities and the Capital Securities and (d)
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 such Trustee’s 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.



9









 





     SECTION 2.5 Title to Property of the Trust. Except as provided in Section 2.6(g) and 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 Administrators and, at
the direction of the Administrators, the Trustees, shall have the authority to enter into all
transactions and agreements determined by the Administrators 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, duty and authority, and is hereby
authorized, to act on behalf of the Trust with respect to the following matters:




     (A) the issuance and sale of the Securities;




     (B) to acquire the Debentures with the proceeds of the sale of the
Securities; provided, however, that the Administrators shall cause legal
title to the Debentures to be held of record in the name of the
Institutional Trustee for the benefit of the Holders;




     (C) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, such agreements as may be necessary or
desirable in connection with the purposes and function of the Trust,
including agreements with the Paying Agent, a Debenture subscription
agreement between the Trust and the Sponsor and a Common Securities
subscription agreement between the Trust and the Sponsor;




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




     (E) if and at such time determined solely 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 if available;




     (F) 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, including notice of any notice received
from the Debenture Issuer of its election to defer payments



10









 







of interest on the Debentures by extending the interest payment period
under the Indenture;




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




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




     (I) execution and delivery of closing certificates pursuant to the
Purchase Agreement and the application for a taxpayer identification number;




     (J) unless otherwise determined by the Holders of a Majority in
liquidation amount of the Securities or as otherwise required by the
Statutory 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;




     (K) the taking of any action incidental to the foregoing as the Sponsor
or an Administrator 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);




     (L) 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;




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




     (N) to negotiate the terms of, and the execution and delivery of, the
Purchase Agreement providing for the sale of the Capital Securities;




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




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



11









 






     (Q) to give the certificate required by § 314(a)(4) of the Trust
Indenture Act to the Institutional Trustee, which certificate may be
executed by an Administrator; and




     (R) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust’s valid existence, rights,
franchises and privileges as a statutory trust under the laws of each
jurisdiction (other than the State of Delaware) 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.




     (ii) As among the Trustees and the Administrators, the Institutional Trustee
shall have the power, duty and authority, and is hereby authorized, 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 (of which the Institutional Trustee has
knowledge (as provided in Section 2.10(m) hereof)) (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



12









 







conserve the Trust Property for the benefit of the Holders (without
consideration of the effect of any such action on any particular Holder);




     (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 trust under the laws of the State
of Delaware 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; and




     (K) to undertake any actions set forth in § 317(a) of the Trust
Indenture Act.




     (iii) The Institutional Trustee shall have the power and authority, and is
hereby authorized, 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)(F) and (G) herein 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 (or in the
case of the Institutional Trustee, to the actual knowledge of a Responsible Officer 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



13









 







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 and direction to the Trustees of
actions they must take on behalf of the Trust, and the preparation for execution and
filing of any documents to be executed and filed by the Trust or on behalf of the
Trust, as the 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; and




     (iii) 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 operate the Trust so that (i) the Trust
will not be deemed to be an Investment Company (in the case of the Institutional Trustee, to the
actual knowledge of a Responsible Officer), (ii) the Trust will not fail to be classified as a
grantor trust for United States federal income tax purposes (in the case of the Institutional
Trustee, to the actual knowledge of a Responsible Officer) 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 the case of the Institutional Trustee, to the
actual knowledge of a Responsible Officer). In this connection, the Institutional Trustee, the
Administrators and the Holders of a Majority in liquidation amount of the Common Securities are
authorized to take any action, not inconsistent with applicable laws or this Declaration, as
amended from time to time, that each of the Institutional Trustee, the Administrators 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 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.







14









 








     SECTION 2.7 Prohibition of Actions by the Trust and the Trustees. The Trust shall not, and the Institutional Trustee and the Administrators shall not, and the
Administrators shall cause the Trust not to, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not, and the Institutional Trustee
and the Administrators shall not cause the Trust to:



          (a) 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;




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




          (c) possess Trust Property for other than a Trust purpose;




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




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




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




          (g) other than as provided in this Declaration (including Annex I), (i) direct the time,
method and place of exercising any trust or power conferred upon the Debenture Trustee with respect
to the Debentures, (ii) waive any past default that is waivable under the Indenture, (iii) exercise
any right to rescind or annul any declaration that the principal of all the Debentures shall be due
and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required unless the Trust shall have received a written
opinion of counsel experienced in such matters to the effect that such amendment, modification or
termination 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:








15









 









     (i) establish and maintain a segregated non-interest bearing trust account (the
“Property Account”) in the United States (as defined in Treasury Regulations §
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




     (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 arise 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 premium, if any, on or principal of the
Debentures on the date such interest, premium, if any, 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 premium, if
any, 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 Common Securities
may exercise such right of subrogation only if no 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:




16









 









     (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) and the certificate of
cancellation referenced in Section 7.1(b) has been filed; 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.




          (h) 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
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 the Administrators.



          (a) The Institutional Trustee, before the occurrence of any Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)) 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 (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)), has occurred (that
has not been cured or waived pursuant to Section 6.8), 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 any Trustee or
Administrator to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if
it 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 the Administrators shall be
subject to the provisions of this Article. Nothing in this Declaration shall be construed to
release a Trustee from liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct or bad faith. Nothing in this Declaration shall be construed to release
an Administrator from liability for its own gross negligent action, its own gross negligent failure
to act, or its own willful misconduct or bad faith. To the extent that, at law or in equity, a
Trustee




17









 







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.




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





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




     (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



18









 







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, written 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;




          (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, willful misconduct or bad faith;




          (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 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





19









 







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 (of which the Institutional Trustee has knowledge (as provided in Section 2.10(m)
hereof)) 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 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;








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          (m) the Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee has actual knowledge of such event or the
Institutional Trustee receives written notice of such event from any Holder, except with respect to
an Event of Default pursuant to Sections 5.01 (a) or 5.01 (b) of the Indenture (other than an Event
of Default resulting from the default in the payment of Additional Interest or premium, if any, if
the Institutional Trustee does not have actual knowledge or written notice that such payment is due
and payable), of which the Institutional Trustee shall be deemed to have knowledge;




          (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 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 Statutory 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 Statutory Trust Act.



     SECTION 2.12 Execution of Documents. Unless otherwise determined in writing by the Institutional Trustee, and except as otherwise
required by the Statutory Trust Act, the Institutional Trustee, or any one or more of the
Administrators, as the case may be, is authorized to execute and deliver on behalf of the Trust any
documents, agreements, instruments or certificates 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.






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     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 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 3 of Annex I.




          (b) The Trust may, with the consent of the Administrators (which consent will not be
unreasonably withheld) and without the consent of the Institutional Trustee, the Delaware Trustee
or the Holders of the Capital Securities, consolidate, amalgamate, merge with or into, or be
replaced by, or convey, transfer or lease its properties and assets as an entirety or substantially
as an entirety to 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
respect to Distributions and payments upon Liquidation, redemption and
otherwise;




     (ii) the Sponsor expressly appoints, as the holder of the Common Securities, 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 quoted, or any
Successor Securities will be listed or quoted 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, replacement, conveyance,
transfer or lease does not cause the rating, if any, on the Capital Securities
(including any Successor Securities) to be downgraded or withdrawn by any
nationally recognized statistical rating organization, if the Capital Securities are
then rated;




     (v) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and



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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, replacement,
conveyance, transfer or lease, 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, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor
Securities) in any material respect (other than with respect to any dilution
of the Holders’ interests in the Successor Entity);




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




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




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




     (ix) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, 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, or convey, transfer or lease its properties and assets as an entirety or substantially
as an entirety to, any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Trust or Successor Entity to be classified as other than a
grantor trust for United States federal income tax purposes.








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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 and sole decision 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, as requested by the Holders of not less than a Majority in
liquidation amount of the Capital Securities; and




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




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 Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall be:



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








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          (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
Statutory 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 or national association 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 fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state or
District of Columbia authority. If such corporation or national association
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 or national association 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 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.




          (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 Wells Fargo Bank, National Association.




     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. 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



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Administrators may be exercised by, or with the consent of, any one such Administrator acting
alone.




     SECTION 4.6 Initial Delaware Trustee. The initial Delaware Trustee shall be Wells Fargo Delaware Trust Company.



     SECTION 4.7 Appointment, Removal and Resignation of the Trustees and the
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.




          (b) Subject to Section 4.7(a), 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,
except that Delaware Trustee’s successor shall be appointed by Holders of a Majority in liquidation
amount of the Common Securities. 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 their 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 this 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, appoint a Relevant Trustee. The Institutional Trustee shall have no liability for the
selection of such successor pursuant to this Section 4.7.




          (c) Unless an Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an act of the Holders 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 delivered to the Relevant
Trustee, shall promptly appoint a successor Relevant Trustee, 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






26









 







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.




          (d) 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 and 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.




          (e) 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 (provided the Institutional Trustee satisfies the requirements of a
Delaware Trustee as set forth in Section 4.2) 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”).




          (f) 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 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.




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




          (h) 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.








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          (i) Any successor Delaware Trustee shall file an amendment to the Certificate of Trust with
the Secretary of State of the State of Delaware 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 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, in the case of the Administrators, a Quorum is
present, or without a meeting by the unanimous written consent of the Trustees or the
Administrators, as the case may be. Meetings of the Trustees and the Administrators together shall
be held from 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






28









 







that is a U.S. Person his or her power for the purpose of executing any documents, instruments
or other writings contemplated in Section 2.6.




          (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 or other writings 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 Merger, 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, without the execution or filing of any paper or any further act on the part of any of
the parties hereto, provided such Person shall be otherwise qualified and eligible under this
Article and, provided, further, that such Person shall file an amendment to the Certificate of
Trust with the Secretary of State of the State of Delaware as contemplated in Section 4.7(i).



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) or premium, if any, on 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 Account for that
purpose, to make a distribution (a “Distribution”) of the Payment Amount to Holders. For the
avoidance of doubt, funds in the Property Account shall not be distributed to Holders to the extent
of any taxes payable by the Trust, in the case of withholding taxes, as determined by the
Institutional Trustee or any Paying Agent and, in the case of taxes other than withholding tax
taxes, as determined by the Administrators in a written notice to the Institutional Trustee.



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,
evidenced by a certificate substantially in the form of Exhibit A-1, representing undivided
beneficial interests in the assets of the Trust and having such terms as are set forth in Annex I
(the “Capital Securities”), and one series of common securities, evidenced by a






29









 







certificate substantially in the form of Exhibit A-2, representing undivided beneficial
interests in the assets of the Trust and 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 pan 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. 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 and shall be valid upon execution by one or more Administrators.




          (c) The Capital Securities shall be, except as provided in Section 6.4, Book- Entry Capital
Securities issued in the form of one or more Global Capital Securities registered in the name of
the Depositary, or its nominee and deposited with the Depositary or a custodian for the Depositary
for credit by the Depositary to the respective accounts of the Depositary Participants thereof (or
such other accounts as they may direct).




          (d) 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.




          (e) 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, and each Holder thereof shall
be entitled to the benefits provided by this Declaration.




          (f) 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.







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SECTION 6.2 Paying Agent, Transfer Agent, Calculation Agent and Registrar.




          (a) The Trust shall maintain in Wilmington, Delaware, 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, 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 or co-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 at its Corporate Trust
Office. The Institutional Trustee or any of its Affiliates in the United States may act as Paying
Agent, Transfer Agent or Registrar.




          (b) The Trust shall also appoint a Calculation Agent, which shall determine the Coupon Rate in
accordance with the terms of the Securities. The Trust initially appoints the Institutional
Trustee as Calculation Agent.




     SECTION 6.3 Form and Dating.



          (a) 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 Certificates 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 $100,000 and multiples of $1,000 in excess thereof.








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          (b) The Capital Securities sold by the Trust to the Initial Purchasers pursuant to the
Purchase Agreement shall be issued in the form of a Global Capital Security, registered in the name
of the Depositary, without coupons and with the Restricted Securities Legend.




     SECTION 6.4 Book-Entry Capital Securities.



          (a) A Global Capital Security may be exchanged, in whole or in part, for Definitive Capital
Securities Certificates registered in the names of Owners only if such exchange complies with
Article VIII and (i) the Depositary advises the Administrators and the Institutional Trustee in
writing that the Depositary is no longer willing or able to properly discharge its responsibilities
with respect to the Global Capital Security, and no qualified successor is appointed by the
Administrators within ninety (90) days of receipt of such notice, (ii) the Depositary ceases to be
a clearing agency registered under the Exchange Act and the Administrators fail to appoint a
qualified successor within ninety (90) days of obtaining knowledge of such event, (iii) the
Administrators at their option advise the Institutional Trustee in writing that the Trust elects to
terminate the book-entry system through the Depositary or (iv) an Indenture Event of Default has
occurred and is continuing. Upon the occurrence of any event specified in clause (i), (ii), (iii)
or (iv) above, the Administrators shall notify the Depositary and instruct the Depositary to notify
all Owners and the Institutional Trustee of the occurrence of such event and of the availability of
Definitive Capital Securities Certificates to Owners requesting the same. Upon the issuance of
Definitive Capital Securities Certificates, the Administrators and the Institutional Trustee shall
recognize the Holders of the Definitive Capital Securities Certificates as Holders.
Notwithstanding the foregoing, if an Owner wishes at any time to transfer an interest in such
Global Capital Security to a Person other than a QIB, such transfer shall be effected, subject to
the Applicable Depository Procedures, in accordance with the provisions of this Section 6.4 and
Article VIII, and the transferee shall receive a Definitive Capital Securities Certificate in
connection with such transfer. A holder of a Definitive Capital Securities Certificate that is a
QIB may upon request, and in accordance with the provisions of this Section 6.4 and Article VIII,
exchange such Definitive Capital Securities Certificate for a beneficial interest in a Global
Capital Security.




          (b) If any Global Capital Security is to be exchanged for Definitive Capital Securities
Certificates or canceled in part, or if any Definitive Capital Securities Certificate is to be
exchanged in whole or in part for any Global Capital Security, then either (i) such Global Capital
Security shall be so surrendered for exchange or cancellation as provided in this Section 6.4 and
Article VIII or (ii) the aggregate liquidation amount represented by such Global Capital Security
shall be reduced, subject to Section 6.3, or increased by an amount equal to the liquidation amount
represented by that portion of the Global Capital Security to be so exchanged or canceled, or equal
to the liquidation amount represented by such Definitive Capital Securities Certificates to be so
exchanged for any Global Capital Security, as the case may be, by means of an appropriate
adjustment made on the records of the Securities Registrar, whereupon the Institutional Trustee, in
accordance with the Applicable Depositary Procedures, shall instruct the Depositary or its
authorized representative to make a corresponding adjustment to its records. Upon any such
surrender to the Administrators or the Registrar of any Global Capital Security or Securities by
the Depositary, accompanied by registration instructions, the Administrators, or any one of them,
shall execute the Definitive Capital Securities Certificates in accordance with the instructions of
the Depositary. None of the Registrar, Administrators, or the Institutional






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Trustee shall be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be fully protected in relying on, such instructions.




          (c) Every Definitive Capital Securities Certificate executed and delivered upon registration
or transfer of, or in exchange for or in lieu of, a Global Capital Security or any portion thereof
shall be executed and delivered in the form of, and shall be, a Global Capital Security, unless
such Definitive Capital Securities Certificate is registered in the name of a Person other than the
Depositary for such Global Capital Security or a nominee thereof.




          (d) The Depositary or its nominee, as registered owner of a Global Capital Security, shall be
the Holder of such Global Capital Security for all purposes under this Declaration and the Global
Capital Security, and Owners with respect to a Global Capital Security shall hold such interests
pursuant to the Applicable Depositary Procedures. The Registrar, the Administrators and the
Institutional Trustee shall be entitled to deal with the Depositary for all purposes of this
Declaration relating to the Global Capital Securities (including the payment of the liquidation
amount of and Distributions on the Book-Entry Capital Securities represented thereby and the giving
of instructions or directions by Owners represented thereby and the giving of notices) as the sole
Holder of the Book-Entry Capital Securities represented thereby and shall have no obligations to
the Owners thereof. None of the Administrators, the Institutional Trustee nor the Registrar shall
have any liability in respect of any transfers effected by the Depositary.




          (e) The rights of the Owners of the Book-Entry Capital Securities shall be exercised only
through the Depositary and shall be limited to those established by law, the Applicable Depositary
Procedures and agreements between such Owners and the Depositary and/or the Depositary
Participants; provided, solely for the purpose of determining whether the Holders of the
requisite amount of Capital Securities have voted on any matter provided for in this Declaration,
to the extent that Capital Securities are represented by a Global Capital Security, the
Administrators and the Institutional Trustee may conclusively rely on, and shall be fully protected
in relying on, any written instrument (including a proxy) delivered to the Institutional Trustee by
the Depositary setting forth the Owners’ votes or assigning the right to vote on any matter to any
other Persons either in whole or in part. To the extent that Capital Securities are represented by
a Global Capital Security, the initial Depositary will make book- entry transfers among the
Depositary Participants and receive and transmit payments on the Capital Securities that are
represented by a Global Capital Security to such Depositary Participants, and none of the Sponsor,
the Administrators or the Institutional Trustee shall have any responsibility or obligation with
respect thereto.




          (f) To the extent that a notice or other communication to the Holders is required under this
Declaration, for so long as Capital Securities are represented by a Global Capital Security, the
Administrator and the Institutional Trustee shall give all such notices and communications to the
Depositary, and shall have no obligations to the Owners.







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SECTION 6.5 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




          (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 hold 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 6.5, 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 6.6 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 6.7 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 in accordance with its standard
procedures or otherwise 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 6.8 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 2.6(g), 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, and the issuance of the Securities shall not be subject to,
preemptive or other similar rights and when issued and delivered to Holders against payment of the
purchase price therefor, the Securities will be fully paid and nonassessable by the Trust.








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          (b) For so long as any Capital Securities remain outstanding, if, upon an Indenture Event of
Default for which acceleration is permitted under Section 5.01, 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 not less than
a Majority in liquidation 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.




          (c) At any time after a declaration of acceleration of maturity of 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 not
less than 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) all payments 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, documented 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 or premium, if any, on the Debentures that has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.07 of the Indenture.



          (d) The Holders of not less than 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 of or premium, if any, 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.








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          (e) 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 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 6.8.




          (f) Except as otherwise provided in this Section 6.8, the Holders of not less than 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 Declaration, 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 December 15, 2041, 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;



36









 






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




     (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 Statutory Trust Act, and subject to the terms set forth in Annex I,
the Institutional Trustee, when notified in writing of the completion of the winding up of the
Trust in accordance with the Statutory Trust Act, shall terminate the Trust by filing, at the
expense of the Sponsor, a certificate of cancellation with the Secretary of State of the State of
Delaware.




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




ARTICLE VIII

TRANSFER OF INTERESTS




     SECTION 8.1 General.



          (a) Subject to Section 6.4 and Section 8.1(c), when Capital Securities are presented to the
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 the requirements provided for herein for such transactions are met. To permit
registrations of transfers 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.








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          (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 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 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. 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) The Capital Securities shall bear the Restricted Securities Legend (as defined below),
which shall not be removed unless there is delivered to the Trust such satisfactory evidence, which
may include an opinion of counsel reasonably acceptable to the Institutional Trustee, 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 Restricted Securities Legend (other than the legend contemplated by Section 8.2(d)).




          (b) 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 represented by different Certificates, 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.








38









 








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




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



     UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO EVERBANK
FINANCIAL PREFERRED TRUST VII OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CAPITAL SECURITY ISSUED IS REGISTERED AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     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 THE HOLDER 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 A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT 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



39









 




OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E)
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 (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED
DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.




     THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.



     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 CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND RESTATED



40









 




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) 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 void 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.




          (e) Each party hereto understands and hereby agrees that the Initial Purchaser is intended
solely to be an interim holder of the Capital Securities and is purchasing such securities to
facilitate consummation of the transactions contemplated herein and in the documents ancillary
hereto. Notwithstanding any provision in this Declaration to the contrary, the Initial Purchaser
shall have the right upon notice (a “Transfer Notice”) (such Transfer Notice shall be required if,
and only if, the Capital Securities are not listed with the Depository Trust Company) to the
Institutional Trustee and the Sponsor to transfer title in and to the Capital Securities, provided
the Initial Purchaser shall take reasonable steps to ensure that such transfer is exempt from
registration under the Securities Act of 1933, as amended, and rules promulgated thereunder. Any
Transfer Notice delivered to the Institutional Trustee and Sponsor pursuant to the preceding
sentence shall indicate the aggregate liquidation amount of Capital Securities being transferred,
the name and address of the transferee thereof (the “Transferee”) and the date of such transfer.
Notwithstanding any provision in this Declaration to the contrary, the transfer by the Initial
Purchaser of title in and to the Capital Securities pursuant to a Transfer Notice shall not be
subject to any requirement relating to Opinions of Counsel, Certificates of Transfer or any other
Opinion or Certificate applicable to transfers hereunder and relating to 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



41









 




Administrators, the Trustees, the Paying Agent, the Transfer Agent or the Registrar shall have
actual or other notice thereof.




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) Except to the extent provided in Section 9.1(b), and pursuant to § 3803(a) of the
Statutory Trust Act, the Holders of the 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, except as otherwise specifically set forth
herein.




     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 (other than an Administrator) shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person’s negligence or willful misconduct or bad faith with respect to
such acts or omissions and except that an Administrator shall be liable for any such loss, damage
or claim incurred by reason of such Administrator’s gross negligence or willful misconduct or bad
faith 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






42









 







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 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 fullest 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 such Person 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 such Person in connection
with such action, suit or proceeding if such Person acted in good faith and in a manner such Person
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 such 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 such Person 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 such conduct was unlawful.




     (ii) The Sponsor shall indemnify, to the fullest 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



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Trust to procure a judgment in its favor by reason of the fact that such Person
is or was an Indemnified Person against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by such Person in connection with the
defense or settlement of such action or suit if such Person acted in good faith and
in a manner such Person 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 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, such Person shall be indemnified, to
the fullest extent permitted by law, against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by such Person 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 such Person 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 such Person 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 (1) in the case of a Company Indemnified Person (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



44









 







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 either believed to be opposed to or did not
believe to be in the best interests of the Trust, or, with respect to any criminal
proceeding, that such Indemnified Person believed or had reasonable cause to believe
such conduct was unlawful, or (2) in the case of a Fiduciary Indemnified Person, by
independent legal counsel in a written opinion that, based upon the facts known to
the counsel at the time such determination is made, such Indemnified Person acted in
bad faith or in a manner that such Indemnified Person either believed to be opposed
to or did not believe to be in the best interests of the Trust, or, with respect to
any criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe such conduct was unlawful. In no event shall any advance be made
(i) to a Company Indemnified Person in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably determine that
such Person deliberately breached such Person’s duty to the Trust or its Common or
Capital Security Holders or (ii) to a Fiduciary Indemnified Person in instances
where independent legal counsel promptly and reasonably determines in a written
opinion that such Person deliberately breached such Person’s duty to the Trust or
its Common or Capital Security Holders.



          (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 of 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, willful misconduct or bad faith 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 or disinterested directors of the Sponsor or Capital Security Holders of the Trust
or otherwise, both as to action in such Person’s 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 such






45









 







Person and incurred by such Person in any such capacity, or arising out of such Person’s
status as such, whether or not the Sponsor would have the power to indemnify such Person 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 such Person 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.




          (g) The provisions of this Section 9.4 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
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 Capital Securities, provided, that the Sponsor
is the holder of the Common 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.



46









 




SECTION 9.6 Compensation; Fee.




          (a) Subject to the provisions set forth in the Fee Agreement of even date herewith, by and
among the Institutional Trustee, the Trust and the Initial Purchaser (the “Fee Agreement”), the
Sponsor agrees:





     (i) 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




     (ii) except as otherwise expressly provided herein or in the Fee Agreement, to
reimburse the Trustees upon request for all reasonable, documented 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 attributable to their negligence or willful
misconduct.



          (b) The provisions of this Section 9.6 shall survive the dissolution of the Trust and the
termination of this Declaration and the removal or resignation of any Trustee.




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 § 301.7701-7, full books of account, records and supporting documents, which
shall reflect in reasonable detail each transaction of the Trust. The books of account shall be
maintained on the accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied.




          (b) The Administrators shall either (i) cause each Form 10-K and Form 10-Q prepared by the
Sponsor and filed with the Commission in accordance with the Exchange Act to be delivered directly
to each Holder of Securities, within 90 days after the filing of each Form 10-K and within 30 days
after the filing of each Form 10-Q or (ii) cause to be prepared at the principal office of the
Trust in the United States, as defined for purposes of Treasury Regulations § 301.7701-7, and
delivered directly 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






47









 







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 § 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) The Administrators will cause the Sponsor’s reports on Form H-(b)11 to be delivered to the
Holders promptly following their filing with the Federal Reserve.




     SECTION 10.3 Banking. The Trust shall maintain one or more bank accounts in the United States, as defined for purposes
of Treasury Regulations § 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 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.



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ARTICLE XI

AMENDMENTS AND MEETINGS



SECTION 11.1 Amendments.




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





     (i) the Institutional Trustee,




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




     (iii) if the amendment affects the rights, powers, duties, obligations or
immunities of the Administrators, the Administrators, and




     (iv) the Holders 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) and that all
conditions precedent to the execution and delivery of such amendment have
been satisfied; or




     (ii) if the result of such amendment would be to




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




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




     (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 Capital Securities as “Tier 1



49









 







Capital” for purposes of the capital adequacy guidelines of (x) the
Federal Reserve (or, if the Debenture Issuer is not a bank holding company,
such guidelines or policies applied to the Debenture Issuer as if the
Debenture Issuer were subject to such guidelines of policies) or of (y) any
other regulatory authority having jurisdiction over the Debenture Issuer.



          (c) Except as provided in Section 11.1(d), (e) or (g), 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 any redemption or liquidation provisions applicable
to 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) Sections 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) 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.




          (g) Subject to Section 11.1(a)(ii), 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; or




     (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;






50









 







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 rights of
Holders of Capital Securities.




     SECTION 11.2 Meetings of the Holders of the 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 not less than 10% in liquidation amount of such
class of Securities. Such direction shall be given by delivering to the Administrators one or more
notices 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 15 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 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



51









 







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 Statutory Trust Act, this Declaration, the terms of the
Securities, the Trust Indenture Act or the listing rules of any stock exchange on
which the Capital Securities are then listed 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 be conducted in the
United States (as that term is defined in Treasury Regulations § 301.7701-7).



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 or national association with trust
powers, duly organized, validly existing and in good standing under the laws of the State of
Delaware or the United States of America, respectively, with trust power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of, this Declaration;




          (b) the Institutional Trustee has a combined capital and surplus of at least fifty million
U.S. dollars ($50,000,000);




          (c) the Institutional Trustee is not an affiliate of the Sponsor, nor does the Institutional
Trustee offer or provide credit or credit enhancement to the Trust;




          (d) the execution, delivery and performance by the Institutional Trustee of this Declaration
has been duly authorized by all necessary action on the part of the Institutional Trustee. This
Declaration has been duly executed and delivered by the Institutional Trustee, and under Delaware
law (excluding any securities laws) constitutes a legal, valid and binding obligation of the
Institutional Trustee, enforceable against it in accordance with its terms, subject






52









 







to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors’ rights generally and to general principles of equity and the discretion of the
court (regardless of whether considered in a proceeding in equity or at law);




          (e) 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




          (f) no consent, approval or authorization of, or registration with or notice to, any state or
federal banking authority governing the trust powers of the Institutional Trustee 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 has its principal place of business in
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 under Delaware law (excluding any securities laws) constitutes a legal, valid and
binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws
affecting creditors’ rights generally and to general principles of equity and the discretion of the
court (regardless of whether 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 articles of
association 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 governing the trust powers of the Delaware Trustee is required for the
execution, delivery or performance by the Delaware Trustee of this Declaration; and




          (f) if the Delaware Trustee is a natural person, it is a resident of the State of Delaware.








53









 








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):



EverBank Financial Preferred Trust VII

c/o EverBank Financial Corp

8100 Nations Way

Jacksonville, Florida 32256

Attention: Jeffrey L. Smiley

Telecopy: (904) 281-6061

Telephone: (904) 281-6167




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



Wells Fargo Delaware Trust Company

919 Market Street Suite 700

Wilmington, DE 19801

Attention: Corporate Trust Division

Telecopy: 302-575-2006

Telephone: 302-575-2005




          (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):



Wells Fargo Bank, National Association

919 Market Street Suite 700

Wilmington, DE 19801

Attention: Corporate Trust Division

Telecopy: 302-575-2006

Telephone: 302-575-2005




          (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):








54









 







EverBank Financial Corp

8100 Nations Way

Jacksonville, Florida 32256

Attention: Jeffrey L. Smiley

Telecopy: (904) 281-6061

Telephone: (904) 281-6167




          (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.



          (a) 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 state or federal courts of the State of New York located in the Borough of Manhattan, City and
State of New York, and further agrees to submit to the jurisdiction of Delaware, and to any actions
that are instituted in state or Federal court in Wilmington, Delaware and 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.




          (b) Each of the Sponsor, the Trustees, the Administrators and the Holder of the Common
Securities irrevocably consents to the service of process on it in any such suit, action or
proceeding 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.








55









 








          (c) 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.




     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.



56









 





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




	 	 	 	 	 
	 	WELLS FARGO DELAWARE TRUST COMPANY, as

Delaware Trustee

 	 
	 	By:  	/s/ Tracy M. McLamb
 	 
	 	 	Name:  	Tracy M. McLamb 	 
	 	 	Title:  	Vice President 	 
	 
	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Institutional Trustee

 	 
	 	By:  	/s/ Tracy M. McLamb
 	 
	 	 	Name:  	Tracy M. McLamb 	 
	 	 	Title:  	Vice President 	 
	 
	 	EVERBANK FINANCIAL CORP

as Sponsor

 	 
	 	By:  	/s/ Robert M. Clements
 	 
	 	 	Name:  	Robert M. Clements 	 
	 	 	Title:  	Chairman & CEO 	 
	 
	 	EVERBANK FINANCIAL PREFERRED TRUST VII

 	 
	 	By:  	/s/ Thomas A. Hajda
 	 
	 	 	Name:  	Thomas A. Hajda 	 
	 	 	Administrator 	 
	 	 	 
	 	By:  	                    /s/ W. Blake Wilson
 	 
	 	 	Name:  	W. Blake Wilson 	 
	 	 	Administrator 	 








57









 








ANNEX I




TERMS OF

CAPITAL SECURITIES AND

COMMON SECURITIES




     Pursuant to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of December
14, 2006 (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. 20,000 Capital Securities of EverBank Financial Preferred Trust VII
(the “Trust”), with an aggregate stated liquidation amount with respect to the assets of the Trust
of Twenty Million Dollars ($20,000,000) 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 “Capital Securities” (the “Capital Securities”). The Capital Security
Certificates evidencing the Capital Securities shall be substantially in the form of Exhibit A-1 to
the Declaration, with such changes and additions thereto or deletions therefrom as may be required
by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the
Capital Securities are listed, if any.



     (b) Common Securities. 619 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 Six
Hundred Nineteen Thousand Dollars ($619,000) 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 rate of 6.735% (the
“Fixed Rate”) per annum from December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”)
and thereafter at a variable per annum rate of interest, reset quarterly, equal to LIBOR, as
determined on the LIBOR Determination Date for such Distribution Payment Period, plus 1.74% (the
“Variable Rate”) (“Coupon Rate” is defined to include the Fixed Rate and Variable Rate, as
applicable) of the stated liquidation amount of $1,000 per Security, (provided, however, that the
Coupon Rate for any Distribution Payment Period may not exceed the highest rate permitted by New
York law, as the same may be modified by United States law of general applicability), such Coupon
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 quarterly period will bear interest thereon compounded quarterly at the applicable Coupon Rate
for each such quarterly period (to the extent permitted
by applicable law). The term “Distributions” as used herein includes cash distributions, any
such



A-I-1









 







compounded distributions 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 legally available in the Property Account therefor. During the Fixed Rate Period, the amount
of Distributions payable for any Distribution Payment Period will be computed for any full
quarterly Distribution Payment Period on the basis of a 360-day year of twelve 30-day months and
the amount payable for any partial period shall be computed on the basis of the number of days
elapsed in a 360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period,
distributions will be computed on the basis of a 360-day year and the actual number of days elapsed
in the relevant Distribution period; provided, however, that upon the occurrence of
a Special Event redemption pursuant to paragraph 4(a) below the amounts payable pursuant to this
Declaration shall be calculated as set forth in the definition of Special Redemption Price.



     (b) Upon expiration of the Fixed Rate Period, LIBOR shall be determined by the Calculation
Agent in accordance with the following provisions:




     (1) On the second LIBOR Business Day (provided, that on such day
commercial banks are open for business (including dealings in foreign currency
deposits) in London (a “LIBOR Banking Day”), and otherwise the next preceding LIBOR
Business Day that is also a LIBOR Banking Day) prior to the March 15, June 15,
September 15 and December 15 commencement date of each such Distribution Payment
Period (or, with respect to the first Distribution Payment Period subsequent to the
Fixed Rate Period, on December 15, 2016), (each such day, a “LIBOR Determination
Date”) for such Distribution Payment Period), the Calculation Agent shall obtain the
rate for three-month U.S. Dollar deposits in Europe, which appears on Telerate Page
3750 (as defined in the International Swaps and Derivatives Association, Inc. 2000
Interest Rate and Currency Exchange Definitions) or such other page as may replace
such Telerate Page 3750 on the Moneyline Telerate, Inc. service (or such other
service or services as may be nominated by the British Banker’s Association as the
information vendor for the purpose of displaying London interbank offered rates for
U.S. dollar deposits), as of 11:00 a.m. (London time) on such LIBOR Determination
Date, and the rate so obtained shall be LIBOR for such Distribution Payment Period.
“LIBOR Business Day” means any day that is not a Saturday, Sunday or other day on
which commercial banking institutions in The City of New York or Wilmington,
Delaware are authorized or obligated by law or executive order to be closed. If
such rate is superseded on Telerate Page 3750 by a corrected rate before 12:00 noon
(London time) on the same LIBOR Determination Date, the corrected rate as so
substituted will be the applicable LIBOR for that Distribution Payment Period.




     (2) If, on any LIBOR Determination Date, such rate does not appear on Telerate
Page 3750 or such other page as may replace such Telerate Page 3750 on the Moneyline
Telerate, Inc. service (or such other service or services as may be nominated by the
British Banker’s Association as the information vendor for
the purpose of displaying London interbank offered rates for U.S. dollar
deposits),



A-I-2









 







the Calculation Agent shall determine the arithmetic mean of the offered
quotations of the Reference Banks (as defined below) to leading banks in the London
Interbank market for three-month U.S. Dollar deposits in Europe (in an amount
determined by the Calculation Agent) by reference to requests for quotations as of
approximately 11:00 a.m. (London time) on the LIBOR Determination Date made by the
Calculation Agent to the Reference Banks. If, on any LIBOR Determination Date, at
least two of the Reference Banks provide such quotations, LIBOR shall equal the
arithmetic mean of such quotations. If, on any LIBOR Determination Date, only one
or none of the Reference Banks provide such a quotation, LIBOR shall be deemed to be
the arithmetic mean of the offered quotations that at least two leading banks in the
City of New York (as selected by the Calculation Agent) are quoting on the relevant
LIBOR Determination Date for three-month U.S. Dollar deposits in Europe at
approximately 11:00 a.m. (London time) (in an amount determined by the Calculation
Agent). As used herein, “Reference Banks” means four major banks in the London
Interbank market selected by the Calculation Agent.




     (3) If the Calculation Agent is required but is unable to determine a rate in
accordance with at least one of the procedures provided above, LIBOR for the
applicable Distribution Payment Period shall be LIBOR in effect for the immediately
preceding Distribution Payment Period.



     (c) All percentages resulting from any calculations on the Securities will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with five one- millionths
of a percentage point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or
..0987655)), and all dollar amounts used in or resulting from such calculation will be rounded to
the nearest cent (with one-half cent being rounded upward).



     (d) On each LIBOR Determination Date, the Calculation Agent shall notify, in writing, the
Sponsor and the Paying Agent of the applicable Coupon Rate in effect for the related Distribution
Payment Period. The Calculation Agent shall, upon the request of the Holder of any Securities,
provide the Coupon Rate then in effect. All calculations made by the Calculation Agent in the
absence of manifest error shall be conclusive for all purposes and binding on the Sponsor and the
Holders of the Securities. The Paying Agent shall be entitled to rely on information received from
the Calculation Agent or the Sponsor as to the Coupon Rate. The Sponsor shall, from time to time,
provide any necessary information to the Paying Agent relating to any original issue discount and
interest on the Securities that is included in any payment and reportable for taxable income
calculation purposes.



     (e) 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 periods as described
herein, quarterly in arrears on March 15, June 15, September 15 and December 15 of each year,
commencing March 15, 2007 (each, a “Distribution Payment Date”). Subject to prior submission of
Notice (as defined in the Indenture), and so long as no Event of Default pursuant to paragraphs
(a), (d), (e) or (f) of Section 5.01 of the Indenture has occurred and is continuing, the Debenture
Issuer has the right under the Indenture to defer payments of interest on the
Debentures by extending the interest distribution period for up to 20 consecutive quarterly



A-I-3









 







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). During any Extension Period,
interest will 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 the Coupon Rate in effect for each such Extension Period, compounded quarterly
from the date such Deferred Interest would have been payable were it not for the Extension Period,
to the extent permitted by law. 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, Redemption Date (to the extent redeemed) or
Special Redemption Date and provided, further, that, during any such Extension
Period, the Debenture Issuer 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 or premium or interest 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 or (iii) make any payment under any
guarantees of the Debenture Issuer that rank in all respects pari passu with or junior in interest
to the Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of
capital stock of the Debenture Issuer (A) 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, (B) in connection with a dividend reinvestment or stockholder stock purchase plan
or (C) in connection with the issuance of capital stock of the Debenture Issuer (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,
reclassification, combination 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 20 consecutive
quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent redeemed) or
Special Redemption 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 Deferred Interest shall accrue upon each
installment of interest that would otherwise have been due and payable during such Extension Period
until such
installment is paid.



A-I-4









 




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 legally 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.




     (f) Distributions on the Securities will be payable to the Holders thereof as they appear on
the books and records of the Registrar on the relevant record dates. The relevant record dates
shall be selected by the Administrators, which dates shall be 15 days before the relevant
Distribution Payment Date. 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. Notwithstanding anything to the contrary contained herein, if any
Distribution Payment Date, other than on the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption Date, falls on a day that is not a Business Day, then any
Distributions payable will be paid on, and such Distribution Payment Date will be moved to, the
next succeeding Business Day, and additional Distributions will accrue for each day that such
payment is delayed as a result thereof. If the Maturity Date, Redemption Date or Special
Redemption Date falls on a day that is not a Business Day, then the principal, premium, if any,
and/or Distributions payable on such date will be paid on the next succeeding Business Day, and no
additional interest will accrue (except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day).



     (g) 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



A-I-5









 




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
Statutory 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 any regulatory authority having jurisdiction over the Sponsor that is primarily
responsible for regulating the activities of the Sponsor if such approval is then required under
applicable capital guidelines or policies of such regulatory authority, an opinion of nationally
recognized tax counsel that Holders will not recognize any gain or loss for United States federal
income tax purposes as a result of the distribution of Debentures 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) December 15, 2041, 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 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 Institutional Trustee of the
Trust as expeditiously as such Trustee determines to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust as provided by applicable law, to the Holders
of the Securities, the Debentures on a Pro Rata 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 to 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) of the immediately preceding paragraph 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.







A-I-6









 








     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 December 15, 2036. The Debentures may be redeemed by the
Debenture Issuer, in whole or in part, on any March 15, June 15, September 15 or December 15 on or
after December 15, 2016 at the Redemption Price, upon not less than 30 nor more than 60 days’
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 or 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 Issuer having received prior
approval from any regulatory authority having jurisdiction over the Debenture Issuer, if such
approval is then required under applicable capital guidelines or policies of such regulatory
authority.



     “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



A-I-7









 




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: (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 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
(including withholding taxes), duties, assessments 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 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, 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 any amendment to,
or change in, the laws, rules or regulations of the United States or any political subdivision
thereof or therein, or as the result of any official or administrative pronouncement or action or
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 Capital Securities, there is more than an insubstantial risk that within 90 days of
the receipt of such opinion, the aggregate Liquidation Amount of the Capital Securities will not be
eligible to be treated by the Debenture Issuer as “Tier 1 Capital” (or the then equivalent thereof)
for purposes of the capital adequacy guidelines of the Federal Reserve (or any successor regulatory
authority with jurisdiction over bank holding companies), as then in effect and applicable to the
Debenture Issuer; provided, however, that the inability of the Debenture Issuer to
treat all or any portion of the Liquidation Amount of the Capital Securities as Tier 1 Capital
shall not constitute the basis for a Capital Treatment Event, if such inability results from the
Debenture Issuer having cumulative preferred stock, minority interests in consolidated
subsidiaries, or any other class of security or interest which the Federal Reserve, may now or
hereafter accord Tier 1 Capital treatment in excess of the amount which may now or hereafter
qualify for treatment as Tier 1 Capital under applicable capital adequacy guidelines;
provided further, however, that the distribution of the Debt Securities 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.



A-I-8









 





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



     “Redemption Price” means 100% of the principal amount of the Debentures being redeemed 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 if such Special
Redemption Date is on or after December 15, 2016.



     “Special Redemption Price” means (1) if the Special Redemption Date is before December 15,
2016, One Hundred Five Percent (105%) of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption and (2) if the Special Redemption Date is on
or after December 15, 2016, the Redemption Price for such Special Redemption Date.



     “Redemption Date” means the date fixed for the redemption of Capital Securities, which shall
be any March 15, June 15, September 15 or December 15 on or after December 15, 2016.



     (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 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 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 quarterly
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 Registrar. No defect in the



A-I-9









 







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, with respect to Book-Entry Capital Securities, on the
Redemption Date or Special Redemption Date, as applicable, irrevocably deposit with
the Depositary for such Book-Entry Capital Securities, to the extent available
therefor, funds sufficient to pay the relevant Redemption Price or Special
Redemption Price, as applicable, and will give such Depositary irrevocable
instructions and authority to pay the Redemption Price or Special Redemption Price,
as applicable, to the Owners of the Capital Securities. With respect to Capital
Securities that are not Book-Entry Capital Securities, the Institutional Trustee
will pay, to the extent available therefore, the relevant Redemption Price or
Special Redemption Price, as applicable, 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 or Special Redemption Price, as
applicable, specified in Section 4(a). If any date fixed for redemption of
Securities is not a Business Day, then payment of any such Redemption Price or
Special Redemption Price, as applicable, payable on such date will be made on the
next succeeding day that is a Business Day 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 or Special Redemption
Price, as applicable, 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 or Special Redemption Price, as
applicable. 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



A-I-10









 







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 not less than 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, (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 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 not less than 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 or Super Majority, as the case may be, 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



A-I-11









 




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 premium, if any, on or principal of the Debentures on the
date such interest, premium, if any, on 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 premium, if any, 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 not less than 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.



     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



A-I-12









 




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 6.8 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) waiving any past default and its
consequences that are waivable under the Indenture, or (iii) exercising any right to rescind or
annul a declaration that the principal of all the Debentures shall be due and payable,
provided, 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 written direction of the Holders of not less than 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



A-I-13









 




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, (i) any
action that would adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the 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 not less than 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 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 not
less than the proportion in liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.



A-I-14









 





     (c) Notwithstanding the foregoing, no amendment or modification may be made to the 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. The 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 or Special 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 or Special Redemption Price the full amount of such Redemption Price or the
Special Redemption Price on all outstanding Capital Securities then called for redemption, shall
have been made or provided for, and all funds immediately available to the Institutional Trustee
shall first be applied to the payment in full in cash of all Distributions on, or the Redemption
Price or the Special 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.



A-I-15









 





     11. No Preemptive Rights. The Holders of the Securities shall have no, and the
issuance of the Securities is not subject to, 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.








A-I-16









 








EXHIBIT A-1




FORM OF CAPITAL SECURITY CERTIFICATE



[FORM OF FACE OF SECURITY]



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



     UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO EVERBANK
FINANCIAL PREFERRED TRUST VII OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CAPITAL SECURITY ISSUED IS REGISTERED AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.



     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 THE HOLDER 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 A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT 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



A-1-1









 




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 (E) 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 (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE
AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE DEBENTURE
ISSUER OR THE TRUST. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL
COMPLY WITH THE FOREGOING RESTRICTIONS.




     THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.



     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.



A-1-2









 





     IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND RESTATED 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.



A-1-3









 





			
	 	 	 
	Certificate Number [P-001]
	 	Number of Capital Securities 20,000






CUSIP NO:                     




Certificate Evidencing Capital Securities



of



EverBank Financial Preferred Trust VII



Capital Securities



(liquidation amount $1,000 per Capital Security)



     EverBank Financial Preferred Trust VII, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that Cede & Co., as nominee on behalf of The Depository
Trust Company (the “Holder”), is the registered owner of 20,000 capital securities of the Trust
representing undivided beneficial interests in the assets of the Trust, designated the Capital
Securities (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 Capital Securities represented
hereby are issued pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated as of December 14,
2006, among Thomas A. Hajda and W. Blake Wilson, as Administrators, Wells Fargo Delaware Trust
Company, as Delaware Trustee, Wells Fargo Bank, National Association, as Institutional Trustee,
EverBank Financial Corp, 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 Sponsor at its principal place
of business.



     By acceptance 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 shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



A-1-4









 





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



	 	 	 	 	 	 	 	 	 

	 	 	EverBank Financial Preferred Trust VII	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	Administrator	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Dated:	 	 	 	 	 	 
	 	 	 	 	 	 	 





CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 

	 	 	WELLS FARGO BANK, NATIONAL

    ASSOCIATION,

not in its individual capacity but solely as

the Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	Authorized Officer	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated	 	 	 	 
	 

	 	 	 	 	 	 







A-1-5









 








[FORM OF REVERSE OF SECURITY]




     Distributions payable on each Capital Security will be payable at a fixed rate of 6.735% (the
“Fixed Rate”) per annum from December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”)
and thereafter at a variable per annum rate of interest, reset quarterly, equal to LIBOR (as
defined in the Declaration) plus 1.74% (the “Variable Rate”) (“Coupon Rate” is defined to include
the Fixed Rate and Variable Rate, as applicable) of the stated liquidation amount of $1,000 per
Capital Security (provided, however, that the Coupon Rate for any Distribution Payment Period may
not exceed the highest rate permitted by New York law, as the same may be modified by United States
law of general applicability), such Coupon Rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one
quarterly period will bear interest thereon compounded quarterly at the then applicable Coupon Rate
for each such quarterly period (to the extent permitted by applicable law). The term
“Distributions” as used herein includes cash distributions, any such compounded distributions 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 legally available in
the Property Account therefor. During the Fixed Rate Period, the amount of Distributions payable
for any period will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months and the amount payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve 30-day months.
Upon expiration of the Fixed Rate Period, distributions will be computed on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution Payment Period.



     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 quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year, commencing on March 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture),
and so long as no Event of Default pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of
the Indenture has occurred and is continuing, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest distribution
period for up to 20 consecutive quarterly 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). During any Extension Period, interest will 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 the Coupon Rate in effect for
each such Extension Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by law. 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, Redemption Date (to the extent redeemed) or Special Redemption 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 20 consecutive



A-1-6









 




quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption 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 (except any Additional Interest
that may be due and payable) shall be due and payable during an Extension Period, except at the end
thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise
have been due and payable during such Extension Period until such installment is paid. If
Distributions are deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates 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 legally 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.




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



A-1-7









 





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 it, 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.




A-1-8









 










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.








A-2-1









 








			
	 	 	 
	Certificate Number [C-001]
	 	Number of Common Securities: 619






Certificate Evidencing Common Securities




of



EverBank Financial Preferred Trust VII



     EverBank Financial Preferred Trust VII, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that EverBank Financial Corp (the “Holder”) is the
registered owner of 619 common securities of the Trust representing undivided beneficial interests
in the assets of the Trust (liquidation amount $1,000 per Common Security) (the “Common
Securities”). The Common Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms and provisions of the
Common Securities shall in all respects be subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of December 14, 2006, among Thomas A. Hajda and W.
Blake Wilson, as Administrators, Wells Fargo Delaware Trust Company, as Delaware Trustee, Wells
Fargo Bank, National Association, as Institutional Trustee, the Holder, 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 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 Sponsor will provide a copy of
the Declaration 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, when an Event of Default has occurred and is 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.



     By acceptance 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 shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



A-2-2









 





     IN WITNESS WHEREOF, the Trust has executed this certificate as of this ______ day of,
_____________, 2006.



	 	 	 	 	 	 	 	 	 

	 	 	EverBank Financial Preferred Trust VII	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	Administrator	 	 











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 rate of 6.735% (the “Fixed Rate”) per annum
from December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”) and thereafter at a
variable per annum rate of interest, reset quarterly, equal to LIBOR (as defined in the
Declaration) plus 1.74% (the “Variable Rate”) (“Coupon Rate” is defined to include the Fixed Rate
and Variable Rate, as applicable) of the stated liquidation amount of $1,000 per Capital Security
(provided, however, that the Coupon Rate for any Distribution Payment Period may not exceed the
highest rate permitted by New York law, as the same may be modified by United States law of general
applicability), such Coupon Rate being the rate of interest payable on the Debentures to be held by
the Institutional Trustee. Distributions in arrears for more than one quarterly period will bear
interest thereon compounded quarterly at the then applicable Coupon Rate for each such quarterly
period (to the extent permitted by applicable law). The term “Distributions” as used herein
includes cash distributions, any such compounded distributions 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 legally available in the Property Account therefor. During the
Fixed Rate Period, the amount of Distributions payable for any period will be computed for any
quarterly Distribution period on the basis of a 360-day year of twelve 30-day months and the amount
payable for any partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period, the amount of
distributions payable for any full quarterly Distribution period will be computed on the basis of a
360-day year and the actual number of days elapsed in the relevant Distribution Payment Period.



     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 quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year, commencing on March 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture),
and so long as no Event of Default pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of
the Indenture has occurred and is continuing, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest distribution
period for up to 20 consecutive quarterly 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). During any Extension Period, interest will 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 the Coupon Rate in effect for
each such Extension Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by law. 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,
Redemption Date (to the extent redeemed) or Special Redemption Date. Prior to the termination of
any Extension Period, the Debenture Issuer may further extend such period, provided, that such
period together with all



A-2-4









 




such previous and further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent redeemed) or
Special Redemption 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 (except any Additional Interest that may
be due and payable) shall be due and payable during an Extension Period, except at the end thereof,
but Deferred Interest shall accrue upon each installment of interest that would otherwise have been
due and payable during such Extension Period until such installment is paid. If Distributions are
deferred, the Distributions due shall be paid on the date that the related Extension Period
terminates 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 legally available for the payment of such
distributions in the Property Account of the Trust. The Trust’s funds legally 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.








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.




A-2-6









 










GUARANTEE AGREEMENT




EVERBANK FINANCIAL CORP



Dated as of December 14, 2006








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I

	DEFINITIONS AND INTERPRETATION

	 
	 	 	 	 
	SECTION 1.1. Definitions and Interpretation
	 	 	1	 
	 
	 	 	 	 
	ARTICLE II

	POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE

	 
	 	 	 	 
	SECTION 2.1. Powers and Duties of the Guarantee Trustee
	 	 	4	 
	SECTION 2.2. Certain Rights of the 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
	 	 	8	 
	 
	 	 	 	 
	ARTICLE III

	THE GUARANTEE TRUSTEE

	 
	 	 	 	 
	SECTION 3.1. The Guarantee Trustee; Eligibility
	 	 	8	 
	SECTION 3.2. Appointment, Removal and Resignation of the Guarantee Trustee
	 	 	9	 
	 
	 	 	 	 
	ARTICLE IV

	GUARANTEE

	 
	 	 	 	 
	SECTION 4.1. Guarantee
	 	 	9	 
	SECTION 4.2. Waiver of Notice and Demand
	 	 	10	 
	SECTION 4.3. Obligations Not Affected
	 	 	10	 
	SECTION 4.4. Rights of Holders
	 	 	11	 
	SECTION 4.5. Guarantee of Payment
	 	 	11	 
	SECTION 4.6. Subrogation
	 	 	11	 
	SECTION 4.7. Independent Obligations
	 	 	12	 
	SECTION 4.8. Enforcement
	 	 	12	 
	 
	 	 	 	 
	ARTICLE V

	LIMITATION OF TRANSACTIONS; SUBORDINATION

	 
	 	 	 	 
	SECTION 5.1. Limitation of Transactions
	 	 	12	 
	SECTION 5.2. Ranking
	 	 	13	 






i









 






	 	 	 	 	 
	 	 	Page
	ARTICLE VI

	TERMINATION

	 
	 	 	 	 
	SECTION 6.1. Termination
	 	 	13	 
	 
	 	 	 	 
	ARTICLE VII

	INDEMNIFICATION

	 
	 	 	 	 
	SECTION 7.1. Exculpation
	 	 	13	 
	SECTION 7.2. Indemnification
	 	 	14	 
	SECTION 7.3. Compensation; Reimbursement of Expenses
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VIII

	MISCELLANEOUS

	 
	 	 	 	 
	SECTION 8.1. Successors and Assigns
	 	 	15	 
	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	 











ii









 








GUARANTEE AGREEMENT




          This GUARANTEE AGREEMENT (the “Guarantee”), dated as of December 14, 2006, is executed and
delivered by EverBank Financial Corp, incorporated in Florida (the “Guarantor”), and Wells Fargo
Bank, National Association, a national banking association with its principal place of business in
the State of Delaware, 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 EverBank
Financial Preferred Trust VII, a Delaware statutory trust (the “Issuer”).




          WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the “Declaration”), dated
as of December 14, 2006, among the administrators and trustees named therein of the Issuer,
EverBank Financial Corp, 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 $20,000,000, designated the Capital Securities (the
“Capital Securities”); and




          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.




          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 of 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 is located at 919 Market Street, Suite 700,
Wilmington, DE 19801.




          “Covered Person” means any Holder of Capital Securities.




          “Debentures” means the junior subordinated debentures of EverBank Financial Corp, designated
the Junior Subordinated Debt Securities due 2036, 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 has 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 has 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 Wells Fargo Bank, National Association, 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 (including in its individual capacity), any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,






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members, partners, employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.




          “Indenture” means the Indenture, dated as of December 14, 2006, between the Guarantor and
Wells Fargo Bank, National Association, 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 with direct responsibility for the administration
of any matters relating to this Guarantee, including any vice president, any






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assistant vice president, any secretary, any assistant secretary, the treasurer, any assistant
treasurer, any trust officer or other officer of the Corporate Trust Office of the Guarantee
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.




          “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 THE 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 the
curing or waiving of 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(b)) 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 Events of Default that may have occurred:



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     (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
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 on their face 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 the 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.



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     (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 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 other writing (or any rerecording, refiling or
reregistration 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



6









 







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 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 the 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.



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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 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 charged with knowledge of any Event of Default
unless the Guarantee Trustee shall have received written notice thereof from the Guarantor
or a Holder of the Capital Securities, or a Responsible Officer of the Guarantee Trustee
charged with the administration of this Guarantee shall have actual knowledge thereof.



ARTICLE III

THE GUARANTEE TRUSTEE



SECTION 3.1. The 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 or national association 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 Fifty
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
or national association 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 or national association 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 forth 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.



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SECTION 3.2. Appointment, Removal and Resignation of the 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.




     (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.



9









 






     (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
Guarantee 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.



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 the payment of the Distributions,
Redemption Price, Special Redemption Price, Liquidation Distribution or other sums 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;



10









 






     (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, 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 legal
counsel determines that the action or proceeding so directed may not lawfully be taken or if
the Guarantee Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or Responsible Officers shall
determine that the action or proceeding 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 due and unpaid under this Guarantee. If any amount shall be paid to the Guarantor





11









 







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.




          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 the Guarantor 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 (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 shares of capital stock of the Guarantor (A) 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, (B) in connection with a
dividend reinvestment or stockholder stock purchase plan or (C) 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 the occurrence of the
Event of Default or the applicable Extension Period, (iii) as a result of any exchange,
reclassification, combination or conversion of any class or series of the Guarantor’s capital stock
(or any capital stock of a




12









 







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 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.




13









 








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 of 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 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



14









 







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 Indemnified
Person in any 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 (and local 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 Persons 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 not less than 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):


Wells Fargo Bank, National Association

919 Market Street

Suite 700

Wilmington, DE 19801

Attention: Corporate Trust Division

Telecopy: 302-575-2006

Telephone: 302-575-2005





     (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):



16









 




EverBank Financial Corp

8100 Nations Way

Jacksonville, Florida 32256

Attention: Jeffrey L. Smiley

Telecopy: (904) 281-6061

Telephone: (904) 281-6167





     (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.




	 	 	 	 	 	 	 

	 	 	EVERBANK FINANCIAL CORP,

as Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ W. Bill Wilson	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	W. Bill Wilson	 	 
	 

	 	Title:
	 	President and CEO	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Guarantee Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tracy M. McLamb	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Tracy M. McLamb	 	 
	 

	 	Title:
	 	Vice President	 	 









18









 








EVERBANK FINANCIAL CORP




JUNIOR SUBORDINATED DEBT SECURITY DUE 2036



     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 THE HOLDER 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 A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENT OF
THE SECURITIES ACT 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 SUCH 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
(E) 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
(D) OR (E) 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 BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.



     THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.



     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 OF THIS SECURITY WILL DELIVER TO THE COMPANY AND
THE TRUSTEE SUCH CERTIFICATES 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 PRINCIPAL 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 PRINCIPAL 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 OR ANY OF ITS
SUBSIDIARIES AND IS NOT SECURED.



2









 





Junior Subordinated Debt Security due 2036




of



EverBank Financial Corp



     EverBank Financial Corp, a bank holding company incorporated in Florida (the “Company”), for
value received promises to pay to Wells Fargo Bank, National Association, not in its individual
capacity but solely as Institutional Trustee for EverBank Financial Preferred Trust VII, a Delaware
statutory trust (the “Securityholder”), or registered assigns, the principal sum of Twenty Million
Six Hundred Nineteen Thousand Dollars on December 15, 2036 and to pay interest on said principal
sum from December 14, 2006, 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, quarterly (subject
to deferral as set forth herein) in arrears on March 15, June 15, September 15 and December 15 of
each year commencing March 15, 2007, at the rate of 6.735% (the “Fixed Rate”) per annum until
December 15, 2016 (the “Fixed Rate Period”) and thereafter at a variable per annum rate equal to
LIBOR (as defined in the Indenture) plus 1.74% (the “Variable Rate”) (“Interest Rate” is defined to
include the Fixed Rate and the Variable Rate, as applicable) (provided, however, that the Interest
Rate for any Interest Payment Period may not exceed the highest rate permitted by New York law, as
the same may be modified by United States law of general applicability) 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 the Interest Rate in effect for each such
Extension Period compounded quarterly. The amount of interest payable on any Interest Payment Date
shall be computed during the Fixed Rate Period on the basis of a 360-day year of twelve 30-day
months, and thereafter on the basis of a 360-day year and the actual number of days elapsed in the
relevant interest period. Notwithstanding anything to the contrary contained herein, if any
Interest Payment Date, other than on the Maturity Date, any Redemption Date (to the extent
redeemed) or the Special Redemption Date, falls on a day that is not a Business Day, then any
interest payable will be paid on, and such Interest Payment Date will be moved to, the next
succeeding Business Day, and additional interest will accrue for each day that such payment is
delayed as a result thereof. If the Maturity Date, any Redemption Date or the Special Redemption
Date falls on a day that is not a Business Day, then the principal, premium, if any, and/or
interest payable on such date will be paid on the next succeeding Business Day, and no additional
interest will accrue (except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day). 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
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. Any such
interest installment not punctually paid or duly provided for shall forthwith cease to be payable
to the registered Securityholders on such regular 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 Securityholders not less than
10 days prior to such special record date, all



3









 




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 Securityholder at such address as shall appear in the Debt Security Register or
by wire transfer of immediately available funds 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 premium, if any, and interest on this
Debt Security shall be made in immediately available funds when due at such place and to such
account as may be designated by the Institutional Trustee. All payments in respect of this Debt
Security shall be payable 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.




     Upon submission of Notice (as defined in the Indenture) and so long as no Event of Default
pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of the Indenture has occurred and is
continuing, the Company shall have the right under the Indenture, from time to time and without
causing an Event of Default, to defer payments of interest on the Debt Securities by extending the
interest distribution period on the Debt Securities at any time and from time to time during the
term of the Debt Securities, for up to 20 consecutive quarterly periods (each such extended
interest distribution 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 an annual rate equal to the Interest Rate applicable during such
Extension Period, compounded quarterly from the date such Deferred Interest would have been payable
were it not for the Extension Period, 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, Redemption Date (to the extent
redeemed) or Special Redemption Date; and provided, further, however, during any
such Extension Period, the Company 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 premium, if any, or interest 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 or (iii) make any payment under any guarantees of the
Company that rank in all respects pari passu with or junior in respect to the Capital Securities
Guarantee (other than (a) repurchases, redemptions or other acquisitions of shares of capital stock
of the Company (A) 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,
(B) in connection with a dividend reinvestment or stockholder stock purchase plan or (C) 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, reclassification,
combination 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



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 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 20 consecutive quarterly periods, or
extend beyond the Maturity Date, Redemption Date (to the extent redeemed) or Special Redemption
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 Deferred Interest shall accrue upon each installment of interest that would
otherwise have been due and payable during such Extension Period until such installment is paid.
The Company must give the Trustee notice of its election to begin or extend an Extension Period
(“Notice”) not later than the related regular record date for the relevant Interest Payment Date.
The Notice shall describe, in reasonable detail, why the Company has elected to begin an Extension
Period. The Notice shall acknowledge and affirm the Company’s understanding that, as specified in
the Indenture, it is prohibited from issuing dividends and other distributions during the Extension
Period. The Trustee shall give notice of the Company’s election to begin an Extension Period to
the Initial Purchaser and the Securityholders.




     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 such Securityholder’s behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the subordination so
provided and (c) appoints the Trustee such Securityholder’s attorney-in-fact for any and all such
purposes. Each holder hereof, by such holder’s 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 Securityholder upon said provisions.



     The Company waives diligence, presentment, demand for payment, notice of nonpayment, notice of
protest, and all other demands and notices.



     This Debt Security shall not be entitled to any benefit under the Indenture hereinafter
referred to and shall not 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.



5









 





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



	 	 	 	 	 	 	 

	 	 	EverBank Financial Corp	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert M. Clements	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Robert M. Clements	 	 
	 

	 	Title:
	 	Chairman and CEO	 	 






Dated: December 14, 2006




CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 

	 	 	Wells Fargo Bank, National Association, not in

its individual capacity but solely the Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tracy M. McLamb	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






Dated: December 14, 2006








6









 








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 December 14, 2006,
duly executed and delivered between the Company and Wells Fargo Bank, National Association, 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 (each a “Special Event”), this Debt Security may become due and payable, in whole
or 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. In the event that the Special Redemption Date falls on a day after
the Fixed Rate Period but prior to the LIBOR Determination Date for any Interest Payment Period,
then the Company shall be required to pay to Securityholders, on the Business Day following such
LIBOR Determination Date, any additional amount of interest that would have been payable on the
Special Redemption Date had the amount of interest determined on such LIBOR Determination Date been
known on the first day of such Interest Payment Period. 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 March 15, June
15, September 15 or December 15 on or after December 15, 2016 (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 any regulatory authority with jurisdiction over the Company if such
approval is then required under applicable capital guidelines or policies of such regulatory
authority, 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 100% of the principal amount of the Debt Securities being redeemed
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 if such
Special Redemption Date is on or after December 15, 2016.




          “Special Redemption Price” means (1) if the Special Redemption Date is before December 15,
2016, One Hundred Five Percent (105%) of the principal amount to be redeemed plus any accrued and
unpaid interest thereon to the date of such redemption and (2) if the Special Redemption Date is on
or after December 15, 2016, the Redemption Price for such 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 Securityholder
hereof upon the cancellation hereof.








7









 








          Upon the occurrence of an Event of Default pursuant to paragraphs (a), (d), (e) or (f), of
Section 5.01 of the Indenture, the principal of all of the Debt Securities may be declared, and in
certain cases shall ipso facto become, due and payable, and upon such 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 Securityholders; 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) change the Maturity Date of any Debt Security, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or manner of calculation of the
rate or extend the time of payment of interest thereon, or reduce (other than as a result of the
maturity or earlier redemption of any such Debt Security in accordance with the terms of the
Indenture and such Debt Security) or increase the aggregate principal amount of Debt Securities
then outstanding, or change any of the redemption provisions, or make the principal thereof or any
interest or premium thereon payable in any coin or currency other than that of the United States
that at the time of payment is legal tender for payment of public and private debts, or impair or
affect the right of any Securityholder 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, on behalf of
all of the Securityholders, 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) a default in payments due in respect of any of the Debt Securities; (b) in respect of covenants
or provisions of the Indenture which cannot be modified or amended without the consent of the
holder of each Debt Security affected, or (c) in respect of the covenants of the Company relating
to its ownership of Common Securities of the Trust. 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 Securityholder 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 all payments due 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 Wilmington, Delaware accompanied by a written instrument or






8









 







instruments of transfer in form satisfactory to the Company or the Trustee duly executed by
the registered holder hereof or such Securityholder’s 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 the principal of and premium, if any, and interest
on this 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.




          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 corporation, 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 Securityholder 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 (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW).









9









 








CAPITAL SECURITY CERTIFICATE




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




          UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO EVERBANK
FINANCIAL PREFERRED TRUST VII OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CAPITAL SECURITY ISSUED IS REGISTERED AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.




          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 THE HOLDER 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 A “NON U.S. PERSON” IN AN “OFFSHORE TRANSACTION” PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT 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 (E) 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 (D) OR (E) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY OF WHICH MAY BE
OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.




          THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS THAT IT
WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS SUCH TRANSACTIONS ARE IN
COMPLIANCE WITH THE SECURITIES ACT OR AN APPLICABLE EXEMPTION THEREFROM.




          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 CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE AMENDED AND RESTATED DECLARATION
OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.








2









 








          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.








3









 








			
	 	 	 
	Certificate Number [P-001]
	 	Number of Capital Securities 20,000






CUSIP NO: 299768 AA 9




Certificate Evidencing Capital Securities



of



EverBank Financial Preferred Trust VII



Capital Securities



(liquidation amount $1,000 per Capital Security)



     EverBank Financial Preferred Trust VII, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that Cede & Co., as nominee on behalf of The Depository
Trust Company (the “Holder”), is the registered owner of 20,000 capital securities of the Trust
representing undivided beneficial interests in the assets of the Trust, designated the Capital
Securities (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 Capital Securities represented
hereby are issued pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated as of December 14,
2006, among Thomas A. Hajda and W. Blake Wilson, as Administrators, Wells Fargo Delaware Trust
Company, as Delaware Trustee, Wells Fargo Bank, National Association, as Institutional Trustee,
EverBank Financial Corp, 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 Sponsor at its principal place
of business.



     By acceptance 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 shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



4









 





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



	 	 	 	 	 	 	 	 	 

	 	 	EverBank Financial Preferred Trust VII	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Thomas A. Hajda	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Thomas A. Hajda	 	 
	 

	 	 	 	Title:
	 	Administrator	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	Dated: December 14, 2006	 	 






CERTIFICATE OF AUTHENTICATION




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



	 	 	 	 	 	 	 

	 	 	WELLS FARGO BANK, NATIONAL ASSOCIATION, not in
its individual capacity but solely as the
Institutional Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Tracy M. McLamb	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Dated: December 14, 2006	 	 









5









 








REVERSE OF SECURITY




     Distributions payable on each Capital Security will be payable at a fixed rate of 6.735% (the
“Fixed Rate”) per annum from December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”)
and thereafter at a variable per annum rate of interest, reset quarterly, equal to LIBOR (as
defined in the Declaration) plus 1.74% (the “Variable Rate”) (“Coupon Rate” is defined to include
the Fixed Rate and Variable Rate, as applicable) of the stated liquidation amount of $1,000 per
Capital Security (provided, however, that the Coupon Rate for any Distribution Payment Period may
not exceed the highest rate permitted by New York law, as the same may be modified by United States
law of general applicability), such Coupon Rate being the rate of interest payable on the
Debentures to be held by the Institutional Trustee. Distributions in arrears for more than one
quarterly period will bear interest thereon compounded quarterly at the then applicable Coupon Rate
for each such quarterly period (to the extent permitted by applicable law). The term
“Distributions” as used herein includes cash distributions, any such compounded distributions 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 legally available in
the Property Account therefor. During the Fixed Rate Period, the amount of Distributions payable
for any period will be computed for any full quarterly Distribution period on the basis of a
360-day year of twelve 30-day months and the amount payable for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve 30-day months.
Upon expiration of the Fixed Rate Period, distributions will be computed on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution Payment Period.



     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 quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year, commencing on March 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture),
and so long as no Event of Default pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of
the Indenture has occurred and is continuing, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest distribution
period for up to 20 consecutive quarterly 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). During any Extension Period, interest will 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 the Coupon Rate in effect for
each such Extension Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by law. 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, Redemption Date (to the extent redeemed) or Special Redemption 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 20 consecutive



6









 




quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption 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 (except any Additional Interest
that may be due and payable) shall be due and payable during an Extension Period, except at the end
thereof, but Deferred Interest shall accrue upon each installment of interest that would otherwise
have been due and payable during such Extension Period until such installment is paid. If
Distributions are deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates 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 legally 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.




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



7









 





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 it, 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.




8









 










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.



 









 





			
	 	 	 
	Certificate Number [C-001]
	 	Number of Common Securities: 619






Certificate Evidencing Common Securities




of



EverBank Financial Preferred Trust VII



     EverBank Financial Preferred Trust VII, a statutory trust created under the laws of the State
of Delaware (the “Trust”), hereby certifies that EverBank Financial Corp (the “Holder”) is the
registered owner of 619 common securities of the Trust representing undivided beneficial interests
in the assets of the Trust (liquidation amount $1,000 per Common Security)(the “Common
Securities”). The Common Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms and provisions of the
Common Securities shall in all respects be subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust, dated as of December 14, 2006, among Thomas A. Hajda and W.
Blake Wilson, as Administrators, Wells Fargo Delaware Trust Company, as Delaware Trustee, Wells
Fargo Bank, National Association, as Institutional Trustee, the Holder, 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 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 Sponsor will provide a copy of
the Declaration 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, when an Event of Default has occurred and is 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.



     By acceptance 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 shall be construed in accordance with, the laws of
the State of Delaware, without regard to principles of conflict of laws.



2









 





     IN WITNESS WHEREOF, the Trust has executed this certificate as of this 14th day of December,
2006.



	 	 	 	 	 
	 	EverBank Financial Preferred Trust VII

 	 
	 	By:  	/s/ Thomas A. Hajda
 	 
	 	 	Name:  	Thomas A. Hajda 	 
	 	 	Title:  	Administrator 	 
	 








3









 








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 rate of 6.735% (the “Fixed Rate”) per annum
from December 14, 2006 until December 15, 2016 (the “Fixed Rate Period”) and thereafter at a
variable per annum rate of interest, reset quarterly, equal to LIBOR (as defined in the
Declaration) plus 1.74% (the “Variable Rate”) (“Coupon Rate” is defined to include the Fixed Rate
and Variable Rate, as applicable) of the stated liquidation amount of $1,000 per Capital Security
(provided, however, that the Coupon Rate for any Distribution Payment Period may not exceed the
highest rate permitted by New York law, as the same may be modified by United States law of general
applicability), such Coupon Rate being the rate of interest payable on the Debentures to be held by
the Institutional Trustee. Distributions in arrears for more than one quarterly period will bear
interest thereon compounded quarterly at the then applicable Coupon Rate for each such quarterly
period (to the extent permitted by applicable law). The term “Distributions” as used herein
includes cash distributions, any such compounded distributions 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 legally available in the Property Account therefor. During the
Fixed Rate Period, the amount of Distributions payable for any period will be computed for any
quarterly Distribution period on the basis of a 360-day year of twelve 30-day months and the amount
payable for any partial period shall be computed on the basis of the number of days elapsed in a
360-day year of twelve 30-day months. Upon expiration of the Fixed Rate Period, the amount of
distributions payable for any full quarterly Distribution period will be computed on the basis of a
360-day year and the actual number of days elapsed in the relevant Distribution Payment Period.



     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 quarterly in arrears
on March 15, June 15, September 15 and December 15 of each year, commencing on March 15, 2007
(each, a “Distribution Payment Date”). Upon submission of Notice (as defined in the Indenture),
and so long as no Event of Default pursuant to paragraphs (a), (d), (e) or (f) of Section 5.01 of
the Indenture has occurred and is continuing, the Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the interest distribution
period for up to 20 consecutive quarterly 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). During any Extension Period, interest will 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 the Coupon Rate in effect for
each such Extension Period, compounded quarterly from the date such Deferred Interest would have
been payable were it not for the Extension Period, to the extent permitted by law. 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,
Redemption Date (to the extent redeemed) or Special Redemption Date. Prior to the termination of
any Extension Period, the Debenture Issuer may further extend such period, provided, that such
period together with all



4









 




such previous and further consecutive extensions thereof shall not exceed 20 consecutive
quarterly periods, or extend beyond the Maturity Date, Redemption Date (to the extent redeemed) or
Special Redemption 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 (except any Additional Interest that may
be due and payable) shall be due and payable during an Extension Period, except at the end thereof,
but Deferred Interest shall accrue upon each installment of interest that would otherwise have been
due and payable during such Extension Period until such installment is paid. If Distributions are
deferred, the Distributions due shall be paid on the date that the related Extension Period
terminates 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 legally available for the payment of such
distributions in the Property Account of the Trust. The Trust’s funds legally 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.



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ASSIGNMENT




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



                                        



                                        



                                        



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



                                        



                                        



                                        



(Insert address and zip code of assignee),



and irrevocably appoints ________ 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.






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