exv4w5






Exhibit 4.5




 

 


AMENDED AND RESTATED DECLARATION

OF TRUST




by and among



STATE STREET BANK AND TRUST COMPANY

OF CONNECTICUT, NATIONAL ASSOCIATION,

as Institutional Trustee,




ALLIANCE CAPITAL PARTNERS, L.P.,

as Sponsor,



and

ROBERT M. CLEMENTS, GARY A. MEEKS, and

TERENCE G. VANE, JR.

as Administrators,



Dated as of July 31, 2001



 

 


 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	INTERPRETATION AND DEFINITIONS
	 	 	 	 
	 
	 	 	 	 
	Section 1.1 Definitions

	 	 	4	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	ORGANIZATION
	 	 	 	 
	 
	 	 	 	 
	Section 2.1 Name

	 	 	11	 
	Section 2.2 Office

	 	 	11	 
	Section 2.3 Purpose

	 	 	11	 
	Section 2.4 Authority

	 	 	11	 
	Section 2.5 Title to Property of the Trust

	 	 	11	 
	Section 2.6 Powers and Duties of the Institutional Trustee and the Administrators

	 	 	11	 
	Section 2.7 Prohibition of Actions by the Trust and the Institutional Trustee

	 	 	15	 
	Section 2.8 Powers and Duties of the Institutional Trustee

	 	 	16	 
	Section 2.9 Certain Duties and Responsibilities of the Institutional Trustee and Administrators

	 	 	17	 
	Section 2.10 Certain Rights of Institutional Trustee

	 	 	19	 
	Section 2.11 Execution of Documents

	 	 	21	 
	Section 2.12 Not Responsible for Recitals or Issuance of Securities

	 	 	21	 
	Section 2.13 Duration of Trust

	 	 	21	 
	Section 2.14 Mergers

	 	 	21	 
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	SPONSOR
	 	 	 	 
	 
	 	 	 	 
	Section 3.1 Sponsor’s Purchase of Common Securities

	 	 	23	 
	Section 3.2 Responsibilities of the Sponsor

	 	 	23	 
	Section 3.3 Expenses

	 	 	24	 
	Section 3.4 Right to Proceed

	 	 	24	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	INSTITUTIONAL TRUSTEE AND ADMINISTRATORS
	 	 	 	 
	 
	 	 	 	 
	Section 4.1 Institutional Trustee; Eligibility

	 	 	24	 
	Section 4.2 Administrators

	 	 	25	 
	Section 4.3 Appointment, Removal and Resignation of Institutional Trustee and Administrators

	 	 	25	 






 









 






	 	 	 	 	 
	 	 	Page
	Section 4.4 Institutional Trustee Vacancies

	 	 	27	 
	Section 4.5 Effect of Vacancies

	 	 	27	 
	Section 4.6 Meetings of the Institutional Trustee and the Administrators

	 	 	27	 
	Section 4.7 Delegation of Power

	 	 	27	 
	Section 4.8 Conversion, Consolidation or Succession to Business

	 	 	27	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	DISTRIBUTIONS
	 	 	 	 
	 
	 	 	 	 
	Section 5.1 Distributions

	 	 	28	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	ISSUANCE OF SECURITIES
	 	 	 	 
	 
	 	 	 	 
	Section 6.1 General Provisions Regarding Securities

	 	 	28	 
	Section 6.2 Paving Agent, Transfer Agent and Registrar

	 	 	29	 
	Section 6.3 Form and Dating

	 	 	29	 
	Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates

	 	 	30	 
	Section 6.5 Temporary Securities

	 	 	30	 
	Section 6.6 Cancellation

	 	 	30	 
	Section 6.7 Rights of Holders; Waivers of Past Defaults

	 	 	30	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	DISSOLUTION AND TERMINATION OF TRUST
	 	 	 	 
	 
	 	 	 	 
	Section 7.1 Dissolution and Termination of Trust

	 	 	32	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	TRANSFER OF INTERESTS
	 	 	 	 
	 
	 	 	 	 
	Section 8.1 General

	 	 	33	 
	Section 8.2 Transfer Procedures and Restrictions

	 	 	34	 
	Section 8.3 Deemed Security Holders

	 	 	36	 
	 
	 	 	 	 
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	LIMITATION OF LIABILITY OF


HOLDERS OF SECURITIES, INSTITUTIONAL TRUSTEE OR OTHERS
	 	 	 	 
	 
	 	 	 	 
	Section 9.1 Liability

	 	 	36	 
	Section 9.2 Exculpation

	 	 	37	 
	Section 9.3 Fiduciary Duty

	 	 	37	 
	Section 9.4 Indemnification

	 	 	38	 
	Section 9.5 Outside Businesses

	 	 	40	 






ii









 






	 	 	 	 	 
	 	 	Page
	Section 9.6 Compensation; Fee

	 	 	40	 
	 
	 	 	 	 
	ARTICLE X
	 	 	 	 
	 
	 	 	 	 
	ACCOUNTING
	 	 	 	 
	 
	 	 	 	 
	Section 10.1 Fiscal Year

	 	 	41	 
	Section 10.2 Certain Accounting Matters

	 	 	41	 
	Section 10.3 Banking

	 	 	41	 
	Section 10.4 Withholding

	 	 	41	 
	 
	 	 	 	 
	ARTICLE XI
	 	 	 	 
	 
	 	 	 	 
	AMENDMENTS AND MEETINGS
	 	 	 	 
	 
	 	 	 	 
	Section 11.1 Amendments

	 	 	42	 
	Section 11.2 Meetings of the Holders of Securities; Action by Written Consent.

	 	 	43	 
	 
	 	 	 	 
	ARTICLE XII
	 	 	 	 
	 
	 	 	 	 
	REPRESENTATIONS OF INSTITUTIONAL TRUSTEE
	 	 	 	 
	 
	 	 	 	 
	Section 12.1 Representations and Warranties of Institutional Trustee

	 	 	45	 
	 
	 	 	 	 
	ARTICLE XIII
	 	 	 	 
	 
	 	 	 	 
	MISCELLANEOUS
	 	 	 	 
	 
	 	 	 	 
	Section 13.1 Notices

	 	 	45	 
	Section 13.2 Governing Law

	 	 	46	 
	Section 13.3 Intention of the Parties

	 	 	47	 
	Section 13.4 Headings

	 	 	47	 
	Section 13.5 Successors and Assigns

	 	 	47	 
	Section 13.6 Partial Enforceability

	 	 	47	 
	Section 13.7 Counterparts

	 	 	47	 
	 
	 	 	 	 
	Annex I      Terms of Securities
	 	 	 	 
	Exhibit A-I Form of Capital Security Certificate
	 	 	 	 
	Exhibit A-2 Form of Common Security Certificate
	 	 	 	 
	Exhibit B     Specimen of Initial Debenture
	 	 	 	 
	Exhibit C     Placement Agreement
	 	 	 	 










iii









 








AMENDED AND RESTATED




DECLARATION OF TRUST



OF



ALLIANCE CAPITAL PARTNERS STATUTORY TRUST I



July 31, 2001



     AMENDED AND RESTATED DECLARATION OF TRUST (“Declaration”) dated and effective as of
July 31, 2001, by the Institutional Trustee (as defined herein), the Administrators (as defined
herein), the Sponsor (as defined herein) and by the holders, from time to time, of undivided
beneficial interests in the Trust (as defined herein) to be issued pursuant to this Declaration;



     WHEREAS, the Institutional Trustee, the Administrators and the Sponsor established Alliance
Capital Partners Statutory Trust I (the “Trust”), a statutory trust under the Connecticut
Statutory Trust Act pursuant to a Declaration of Trust dated as of July 13, 2001 (the “Original
Declaration”), and a Certificate of Trust filed with the Secretary of State of the State of
Connecticut on July 13, 2001, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain debentures of the Debenture Issuer (as defined herein);



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



     WHEREAS, the Institutional Trustee, 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 (as defined herein) and that this Declaration
constitutes the governing instrument of such statutory trust, the Institutional Trustee declares
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. The parties hereto hereby
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 have the
respective meanings assigned to them in this Section 1.1;



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



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



4









 





     (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; and



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



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



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



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



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



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



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



     (a) a court having jurisdiction in the premises shall enter 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 appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any substantial part of its
property, or ordering 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



     (b) such Person 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 such Person 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.



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



     “Capital Securities” has the meaning set forth in paragraph 1(a) of Annex I.



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



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



     “Certificate” means any certificate evidencing Securities.



5









 





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



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



     “Commission” means the Securities and Exchange Commission.



     “Common Securities” has the meaning set forth in paragraph 1(b) of Annex I.



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



     “Company Indemnified Person” means (a) any 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 at the date of execution of this Declaration is located at 225 Asylum
Street, Goodwin Square, Hartford, Connecticut.



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



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



     “Creditor” has the meaning set forth in Section 3.3.



     “Debenture Issuer” means Alliance Capital Partners, L.P., a Delaware limited
partnership, in its capacity as issuer of the Debentures under the Indenture.



     “Debenture Trustee” means State Street Bank and Trust Company of Connecticut, National
Association, as trustee under the Indenture until a successor is appointed thereunder, and
thereafter means such successor trustee.



     “Debentures” means the Floating Rate Junior Subordinated Deferrable Interest
Debentures due 2031 to be issued by the Debenture Issuer under the Indenture.



     “Defaulted Interest” has the meaning set forth in the Indenture.



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



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



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



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



6









 





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



     “Distribution Rate” means, for the period beginning on (and including) the date of
original issuance and ending on (but excluding) October 31, 2001, 7.29% and for the period
beginning on (and including) October 31, 2001 and thereafter, the Coupon Rate.



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



     (a) the occurrence of an Indenture Event of Default; or



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



     (c) default in the performance, or breach, in any material respect, of any covenant or
warranty of the Institutional Trustee in this Declaration (other than those specified in clause (a)
or (b) above) and continuation of such default or breach for a period of 60 days after there has
been given, by registered or certified mail to the Institutional Trustee and to the Sponsor by the
Holders of at least 25% in aggregate liquidation amount of the outstanding Capital Securities a
written notice specifying such default or breach and requiring it to be remedied and stating that
such notice is a “Notice of Default” hereunder; or



     (d) the occurrence of a Bankruptcy Event with respect to the Institutional Trustee if a
successor Institutional Trustee has not been appointed within 90 days thereof.



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



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



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



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



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



     “Guarantee” means the guarantee agreement to be dated as of the Closing Date, of the
Sponsor in respect of the Capital Securities.



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



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



7









 





     “Indenture” means the Indenture dated as of the Closing Date, between the Debenture
Issuer and the Debenture Trustee, and any indenture supplemental thereto pursuant to which the
Debentures are to be issued, as such Indenture and any supplemental indenture may be amended,
supplemented or otherwise modified from time to time.



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



     “Institutional Trustee” means the Trustee meeting the eligibility requirements set
forth in Section 4.1.



     “Interest” means any interest due on the Debentures including any Additional Interest
and Defaulted Interest.



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



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



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



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



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



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



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



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



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



     (a) a statement that each officer signing the 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 Certificate;



8









 





     (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.



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



     “Ownership Interests” means, so long as the Debenture Issuer is a limited partnership,
the partnership interests of the Debenture Issuer’s general and limited partners or, if the
Debenture Issuer (or its successor) is a corporation, the Debenture Issuer’s capital stock.



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



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



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



     “Placement Agreement” means the Placement Agreement relating to the offering and sale
of Capital Securities in the form of Exhibit C.



     “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.



     “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.



     “Responsible Officer” means, with respect to the Institutional Trustee, any officer
within the Corporate Trust Office of the Institutional Trustee, including any vice-president, any
assistant vice-president, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer or other officer of the Corporate Trust Office of the Institutional Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with the particular
subject.



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



9









 





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



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



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



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



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



     “Special Redemption Date” 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 Alliance Capital Partners, L.P. a Delaware Limited partnership, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as sponsor of the
Trust.



     “Statutory Trust Act” means Chapter 615 of Title 34 of the Connecticut General
Statutes, Sections 500, et seq. as may be amended from time to time.



     “Successor Entity” has the meaning set forth in Section 2.14(b).



     “Successor Institutional Trustee” has the meaning set forth in Section 4.3(a).



     “Successor Securities” has the meaning set forth in Section 2.14(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 Holder(s) of outstanding
Securities voting together as a single class or, as the context may require, Holders of outstanding
Capital Securities or Holders of outstanding Common Securities voting separately as a class, who
are the record owners of 10% or more of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.



     “3-Month LIBOR” has the meaning set forth in paragraph 4(a) of Annex I.



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



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



     “Trust 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



10









 




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 “[TRUST NAME] Statutory Trust [I],” as such name may be modified from time to
time by the Administrators following written notice to the Holders of the Securities. The Trust’s
activities may be conducted under the name of the Trust or any other name deemed advisable by the
Administrators.



     Section 2.2 Office. The address of the principal office of the Trust is c/o State Street Bank and Trust Company of
Connecticut, National Association, 225 Asylum Street, Goodwin Square, Hartford, Connecticut 06103.
On at least 10 Business Days written notice to the Holders of the Securities, the Administrators
may designate another principal office, which shall be in a state of the United States or in 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 necessary or
incidental thereto. The Trust shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, or otherwise undertake (or permit to be undertaken) any
activity that would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.



     Section 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 the
Institutional Trustee in accordance with its powers shall constitute the act of and serve to bind
the Trust. In dealing with the Institutional Trustee acting on behalf of the Trust, no Person shall
be required to inquire into the authority of the Institutional Trustee to bind the Trust. Persons
dealing with the Trust are entitled to rely conclusively on the power and authority of the
Institutional Trustee as set forth in this Declaration. The Administrators shall have only those
ministerial duties set forth herein with respect to accomplishing the purposes of the Trust and are
not intended to be trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated except as provided in
Section 2.6, to perform those duties assigned to the Administrators.



     Section 2.5 Title to Property of the Trust. Except as provided in Section 2.8 with respect to the Debentures and the Property Account or as
otherwise provided in this Declaration, legal title to all assets of the Trust shall be vested in
the Trust. The Holders shall not have legal title to any part of the assets of the Trust, but shall
have an undivided beneficial interest in the assets of the Trust.



     Section 2.6 Powers and Duties of the Institutional Trustee and the Administrators.



11









 





     (a) The Institutional Trustee 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
Institutional Trustee and the Administrators shall have the authority to enter into all
transactions and agreements determined by the Institutional Trustee to be appropriate in exercising
the authority, express or implied, otherwise granted to the Institutional Trustee or the
Administrators, as the case may be, under this Declaration, and to perform all acts in furtherance
thereof, including without limitation, the following:




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




     (A) the issuance and sale of the Securities;




     (B) to cause the Trust to enter into, and to execute and deliver 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;




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




     (D) 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;




     (E) the consent to the appointment of a Paying Agent, Transfer Agent
and Registrar in accordance with this Declaration, which consent shall not
be unreasonably withheld or delayed;




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




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




     (H) 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;




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



12









 






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




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




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




     (A) the establishment of the Property Account;




     (B) the receipt of the Debentures;




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




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




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




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




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




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




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




     (J) to take all action that may be necessary for the preservation and
the continuation of the Trust’s valid existence, rights, franchises and



13









 






privileges as a statutory trust under the laws of the State of Connecticut
and of each other jurisdiction in which such existence is necessary to
protect the limited liability of the Holders of the Capital Securities or to
enable the Trust to effect the purposes for which the Trust was created.




     (iii) The Institutional Trustee shall have the power and authority to act on
behalf of the Trust with respect to any of the duties, liabilities, powers or the
authority of the Administrators set forth in Section 2.6(a)(i)(D), (E) and (F)
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 Institutional Trustee 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
Institutional Trustee 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
reasonably be expected (x) to cause the Trust to fail or cease to qualify as a “grantor trust” for
United States federal income tax purposes or (y) to require the trust to register as an Investment
Company under the Investment Company Act, (iv) incur any indebtedness for borrowed money or issue
any other debt or (v) take or consent to any action that would result in the placement of a lien on
any of the Trust Property. The Institutional Trustee shall, at the sole cost and expense of the
Trust, defend all claims and demands of all Persons at any time claiming any lien on any of the
Trust Property adverse to the interest of the Trust or the Holders in their capacity as Holders.



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




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




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




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



14









 






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



     (d) Notwithstanding anything herein to the contrary, the Administrators 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 the Trust will not (i) be deemed to be an
Investment Company required to be registered under the Investment Company Act, and (ii) fail to be
classified as a “grantor trust” for United States federal income tax purposes. The Administrators
and the Holders of a Majority in liquidation amount of the Common Securities shall not take any
action inconsistent with the treatment of the Debentures as indebtedness of the Debenture Issuer
for United States federal income tax purposes. In this connection, the 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, the Certificate of Trust or this Declaration, as
amended from time to time, that each of the Administrators and the Holders of a Majority in
liquidation amount of the Common Securities determines in their discretion to be necessary or
desirable for such purposes.



     (e) All expenses incurred by the Administrators or the Institutional Trustee pursuant to this
Section 2.6 shall be reimbursed by the Sponsor, and the Institutional Trustee 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.



     Section 2.7 Prohibition of Actions by the Trust and the Institutional Trustee.



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




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




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




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




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




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



15









 






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




     (vii) carry on any “trade or business” as that phrase is used in the Code; or




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



     Section 2.8 Powers and Duties of the Institutional Trustee.



     (a) The legal title to the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Trust and the Holders of the Securities. The
right, title and interest of the Institutional Trustee to the Debentures shall vest automatically
in each Person who may hereafter be appointed as Institutional Trustee in accordance with Section
4.3. 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.



     (c) The Institutional Trustee shall:




     (i) establish and maintain a segregated non-interest bearing trust account (the
“Property Account”) 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, or cause
the Paying Agent to 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



16









 







Holders of Securities upon the occurrence of certain circumstances pursuant to the
terms of the Securities.



     (d) 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
(“Legal Action”) which arises out of or in connection with an Event of Default of which a
Responsible Officer of the Institutional Trustee has actual knowledge or arises out of the
Institutional Trustee’s duties and obligations under this Declaration; provided,
however, that if an Event of Default has
occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal on the Debentures
on the date such interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), then a Holder of the Capital Securities may directly institute a proceeding for
enforcement of payment to such Holder of the principal of or interest on the Debentures having a
principal amount equal to the aggregate liquidation amount of the Capital Securities of such Holder
(a “Direct Action”) on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Holders of the Common Securities will be
subrogated to the rights of such Holder of the Capital Securities to the extent of any payment made
by the Debenture Issuer to such Holder of the Capital Securities in such Direct Action;
provided, however, that no Holder of the Common Securities may exercise such right
of subrogation so long as an Event of Default with respect to the Capital Securities has occurred
and is continuing.



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




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




     (ii) a Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.3.



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



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



     (a) The Institutional Trustee, before the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Declaration and no implied covenants shall
be read into this Declaration against the Institutional Trustee. In case an Event of Default has



17









 







occurred (that has not been cured or waived pursuant to Section 6.7), the Institutional Trustee
shall exercise such of the rights and powers vested in it by this Declaration, and use the same
degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.



     (b) The duties and responsibilities of the Institutional Trustee and the Administrators shall
be as provided by this Declaration. Notwithstanding the foregoing, no provision of this Declaration
shall require the Institutional Trustee or Administrators to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their duties hereunder, or in
the exercise of any of their rights or powers if it shall have reasonable grounds to believe that
repayment of such funds or adequate protection against such risk of 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 Institutional
Trustee or Administrators shall be subject to the provisions of this Article. Nothing in this
Declaration shall be construed to relieve an Administrator or the Institutional Trustee from
liability for its own negligent failure to act, or its own willful misconduct. To the extent that,
at law or in equity, the Institutional Trustee or an Administrator has duties and liabilities
relating to the Trust or to the Holders, the Institutional Trustee or such Administrator shall not
be liable to the Trust or to any Holder for the Institutional Trustee’s or such 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 Institutional
Trustee 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 Institutional Trustee.



     (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 Institutional Trustee 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 Institutional Trustee
expressly set forth elsewhere in this Declaration.



     (d) The Institutional Trustee shall not be liable for its own acts or omissions hereunder
except as a result of its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:




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




     (ii) the Institutional Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a Majority in liquidation amount of the Capital
Securities or the Common Securities, as applicable, relating to the time, method and



18









 







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,
safekeeping 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 fiduciary accounts generally, subject to the
protections and limitations on liability afforded to the Institutional Trustee under
this Declaration;




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




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



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



     (a) the Institutional Trustee may conclusively rely and shall fully be protected in acting or
refraining from acting in good faith upon any resolution, opinion of counsel, certificate, written

representation of a Holder or transferee, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal,
bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed, sent or presented by the proper party or parties;




     (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 written instructions 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 shall be instructed in writing, in which event the
Institutional Trustee shall have no liability except for its own negligence or willful misconduct;



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



19









 





     (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 request and conclusively rely upon an Officers’ Certificate as to factual matters
which, upon receipt of such request, shall be promptly delivered by the Sponsor or the
Administrators;



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



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



     (g) the Institutional Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Declaration at the request or direction of any of the Holders pursuant
to this Declaration, unless such Holders shall have offered to the Institutional Trustee security
or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction; provided, that nothing
contained in this Section 2.10(g) shall be taken to relieve the Institutional Trustee, subject to
Section 2.9(b), upon the occurrence of an Event of Default, to 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;



     (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
Capital Securities which instructions may only be given by the Holders of the same proportion in
liquidation amount of the Capital Securities as would be entitled to direct the Institutional
Trustee under the terms of 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



20









 







instructions
are received, and (iii) shall be fully protected in acting in accordance with such instructions;



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



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



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



     (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 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 on behalf of the Trust any documents
that the Institutional Trustee or the Administrators, as the case may be, have the power and
authority to execute pursuant to Section 2.6.



     Section 2.12 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 Institutional Trustee does not assume any responsibility for their
correctness. The Institutional Trustee makes no representations as to the value or condition of the
property of the Trust or any part thereof. The Institutional Trustee makes no representations as to
the validity or sufficiency of this Declaration, the Debentures or the Securities.



     Section 2.13 Duration of Trust. The Trust, unless earlier dissolved pursuant to the provisions of Article VII hereof, shall be in
existence for 35 years from the Closing Date.



     Section 2.14 Mergers.



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     (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any corporation
or other body, except as described in this Section 2.14(b) and (c).



     (b) The Trust may, with the consent of the Institutional Trustee and without the consent of
the Holders of the Capital Securities, consolidate, amalgamate, merge with or into, or be replaced
by a trust organized as such under the laws of any state; provided that:




     (i) if the Trust is not the surviving entity, 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 a trustee of the Successor Entity that
possesses the same powers and duties as the Institutional Trustee as the Holder of
the Debentures;




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




     (iv) the Institutional Trustee receives written confirmation from Moody’s
Investor Services, Inc. or any other nationally recognized statistical rating
organization that rates securities issued by the initial purchaser of the Capital
Securities that it will not reduce or withdraw the rating of any such securities
because of such merger, conversion, consolidation, amalgamation or replacement;




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




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




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



22









 






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




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




     (vii) the Sponsor guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the Guarantee;




     (viii) the Sponsor owns 100% of the common securities of any Successor Entity;
and




     (ix) prior to such merger, consolidation, amalgamation or replacement, the
institutional Trustee shall have received an Officers’ Certificate of the
Administrators and an opinion of counsel, each to the effect that all conditions
precedent under this Section 2.14(b) to such transaction have been satisfied.



     (c) Notwithstanding Section 2.14(b), the Trust shall not, except with the consent of Holders
of 100% in aggregate liquidation amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by any other entity or permit any other entity to consolidate, amalgamate,
merge with or into, or replace it if such consolidation, amalgamation, merger or replacement would
cause the Trust or Successor Entity to be classified as other than a grantor trust for United
States federal income tax purposes.



ARTICLE III




SPONSOR



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



     Section 3.2 Responsibilities of the Sponsor. In connection with the issue and sale of the Capital Securities, the Sponsor shall have the
exclusive right and responsibility to engage in, or direct the Administrators to engage in, the
following activities:



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



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



23









 





     Section 3.3 Expenses. In connection with the offering, sale and issuance of the Debentures to the Institutional Trustee
and in connection with the sale of the Securities by the Trust, the Sponsor, in its capacity as
Debenture Issuer, shall:



     (a) pay all reasonable costs and expenses relating to the offering, sale and issuance of the
Debentures, including compensation of the Debenture Trustee under the Indenture in accordance with
the provisions of the Indenture;



     (b) be responsible for and shall pay all debts and obligations (other than with respect to the
Securities) and all costs and expenses of the Trust (including, but not limited to, costs and
expenses relating to the organization, maintenance and dissolution of the Trust), the offering,
sale and issuance of the Securities (including fees to the placement agents in connection
therewith), the fees and expenses (including reasonable counsel fees and expenses) of the
Institutional Trustee and the Administrators, the costs and expenses relating to the operation of
the Trust, including, without limitation, costs and expenses of accountants, attorneys, statistical
or bookkeeping
services, expenses for printing and engraving and computing or accounting equipment, Paying
Agents, Registrars, Transfer Agents, duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition, financing, and
disposition of Trust assets and the enforcement by the Institutional Trustee of the rights of the
Holders; and



     (c) to pay any and all taxes (other than United States withholding taxes attributable to the
Trust or its assets) and all liabilities, costs and expenses with respect to such taxes of the
Trust.



     The Sponsor’s obligations under this Section 3.3 shall be for the benefit of, and shall be
enforceable by, any Person to whom such debts, obligations, costs, expenses and taxes are owed (a
“Creditor”) whether or not such Creditor has received notice hereof. Any such Creditor may
enforce the Sponsor’s obligations under this Section 3.3 directly against the Sponsor and the
Sponsor irrevocably waives any right or remedy to require that any such Creditor take any action
against the Trust or any other Person before proceeding against the Sponsor. The Sponsor agrees to
execute such additional agreements as may be necessary or desirable in order to give full effect to
the provisions of this Section 3.3.



     Section 3.4 Right to Proceed. The Sponsor acknowledges the rights of Holders to institute a Direct Action as set forth in
Section 2.8(d) hereto.



ARTICLE IV




INSTITUTIONAL TRUSTEE AND ADMINISTRATORS



     Section 4.1 Institutional Trustee; Eligibility.



     (a) There shall at all times be one 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



24









 






     (iii) be a banking corporation or trust company organized and doing business
under the laws of the United States of America or any state thereof or the District
of Columbia, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least 50 million U.S. dollars ($50,000,000.00),
and subject to supervision or examination by Federal, state, or District of Columbia
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 4.1(a)(iii), the combined
capital and surplus of such corporation shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.



     (b) If at any time the Institutional Trustee shall cease to be eligible to so act under
Section 4.1(a), the Institutional Trustee shall immediately resign in the manner and with the
effect set forth in Section 4.3(a).



     (c) The initial Institutional Trustee shall be State Street Bank and Trust Company of
Connecticut, National Association.



     Section 4.2 Administrators. Each Administrator shall be a U.S. Person, 21 years of age or older and authorized to bind the
Sponsor. The initial Administrators shall be Robert M. Clements, Gary A. Meeks and Terence G. Vane,
Jr. There shall at all times be at least one Administrator. Except where a requirement for action
by a specific number of Administrators is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the Administrators, any
action required or permitted to be taken by the Administrators may be taken by, and any power of
the Administrators may be exercised by, or with the consent of, any one such Administrator.



     Section 4.3 Appointment, Removal and Resignation of Institutional Trustee and
Administrators.



     (a) Notwithstanding anything to the contrary in this Declaration, no resignation or removal of
the Institutional Trustee and no appointment of a Successor Institutional Trustee pursuant to this
Article shall become effective until the acceptance of appointment by the Successor Institutional
Trustee in accordance with the applicable requirements of this Section 4.3.



     Subject to the immediately preceding paragraph, the Institutional Trustee may resign at any
time by giving written notice thereof to the Holders of the Securities and by appointing a
Successor Institutional Trustee. Upon the resignation of the Institutional Trustee, the
Institutional Trustee shall appoint a successor by requesting from at least three Persons meeting
the eligibility requirements, its expenses and charges to serve as the successor Institutional
Trustee on a form provided by the Administrators, and selecting the Person who agrees to the lowest
expense and charges (the “Successor Institutional Trustee”). If the instrument of
acceptance by the Successor Institutional Trustee required by this Section 4.3 shall not have been
delivered to the Institutional Trustee within 60 days after the giving of such notice of
resignation or delivery of the instrument of removal, the Institutional 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 Institutional Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may



25









 







deem proper, appoint a Successor Institutional
Trustee. The Institutional Trustee shall have no liability for the selection of such successor
pursuant to this Section 4.3.



     The Institutional Trustee may be removed by the act of the Holders of a Majority in
liquidation amount of the Capital Securities, delivered to the Institutional Trustee (in its
individual capacity and on behalf of the Trust) if an Event of Default shall have occurred and be
continuing. If the Institutional 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 Institutional Trustee, shall promptly appoint a Successor Institutional Trustee, and such
Successor Institutional Trustee shall comply with the applicable requirements of this Section 4.3.
If no Successor Institutional 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 4.3, within 30 days after delivery of an instrument of removal, any Holder who has
been a Holder of the Securities for at least 6 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 the Successor Institutional Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a Successor Institutional
Trustee.



     The Institutional Trustee shall give notice of its resignation and removal and each
appointment of a Successor Institutional Trustee to all Holders in the manner provided in Section
13.1(d) and shall give notice to the Sponsor. Each notice shall include the name of the Successor
Institutional Trustee and the address of its Corporate Trust Office.



     (b) In case of the appointment hereunder of a Successor Institutional Trustee, the retiring
Institutional Trustee and the Successor Institutional Trustee shall execute and deliver an
amendment hereto wherein the Successor Institutional Trustee shall accept such appointment and
which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, the Successor Institutional Trustee all the rights, powers, trusts and duties
of the retiring Institutional Trustee with respect to the Securities and the Trust and (ii) 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 Institutional Trustee, it being
understood that nothing herein or in such amendment shall constitute such Institutional Trustees
co-trustees and upon the execution and delivery of such amendment the resignation or removal of the
retiring Institutional Trustee shall become effective to the extent provided therein and each
Successor Institutional Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Institutional Trustee; but, on
request of the Trust of any Successor Institutional Trustee such retiring Institutional Trustee
shall duly assign, transfer and deliver to such Successor Institutional Trustee all Trust Property,
all proceeds thereof and money held by such retiring Institutional Trustee hereunder with respect
to the Securities and the Trust.



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



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



26









 





     Section 4.4 Institutional Trustee Vacancies. If the Institutional Trustee ceases to hold office for any reason a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Institutional Trustee shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a trustee
appointed in accordance with Section 4.3.



     Section 4.5 Effect of Vacancies. The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence
or incapacity to perform the duties of the Institutional Trustee shall not operate to dissolve,
terminate or annul the Trust or terminate this Declaration.



     Section 4.6 Meetings of the Institutional Trustee and the Administrators. Meetings of the Administrators shall be held from time to time upon the call of an Administrator.
Regular meetings of the Administrators may be held in person in the United States or by telephone,
at a place (if applicable) and time fixed by resolution of the Administrators. Notice of any
in-person meetings of the Institutional Trustee with the Administrators or meetings of 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 Institutional Trustee with the Administrators or meetings of 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 the Institutional Trustee or an
Administrator, as the case may be, at a meeting shall constitute a waiver of notice of such meeting
except where the Institutional 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 grounds that the
meeting has not been lawfully called or convened. Unless provided otherwise in this Declaration,
any action of the Institutional Trustee or the Administrators, as the case may be, may be taken at
a meeting by vote of the Institutional Trustee or a majority vote of the Administrators present
(whether in person or by telephone) and eligible to vote with respect to such matter,
provided that a Quorum is present, or without a meeting by the unanimous written consent of
the Institutional Trustee or the Administrators. Meetings of the Institutional Trustee and the
Administrators together shall be held from time to time upon the call of the Institutional Trustee
or an Administrator.



     Section 4.7 Delegation of Power.



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



     (b) the Administrators shall have power to delegate from time to time to such of their number
the doing of such things and the execution of such instruments either in the name of the Trust or
the names of the Administrators or otherwise as the Administrators 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 4.8 Conversion, Consolidation or Succession to Business. Any Person into which the Institutional 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 Institutional



27









 




Trustee shall be a party, or any Person succeeding to all or substantially
all the corporate trust business of the Institutional Trustee shall be the successor of the
Institutional Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.




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



ARTICLE VI




ISSUANCE OF SECURITIES 



     Section 6.1 General Provisions Regarding Securities.



     (a) The Administrators shall, on behalf of the Trust, issue one series of capital securities
substantially in the form of Exhibit A-1 representing undivided beneficial interests in the assets
of the Trust having such terms as are set forth in Annex I and one series of common securities
representing undivided beneficial interests in the assets of the Trust having such terms as are set
forth in Annex I. The Trust shall issue no securities or other interests in the assets of the Trust
other than the Capital Securities and the Common Securities. The Capital Securities rank pari passu
to, 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 as set forth in
Annex I.



     (b) The Certificates shall be signed on behalf of the Trust by one or more Administrators.
Such signature shall be the facsimile or manual signature of any Administrator. In case any
Administrator of the Trust who shall have signed any of the Securities shall cease to be such
Administrator before the Certificates so signed shall be delivered by the Trust, such Certificates
nevertheless may be delivered as though the person who signed such Certificates had not ceased to
be such Administrator, and any Certificate may be signed on behalf of the Trust by such persons
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
facsimile or 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



28









 







shall authenticate the Capital Securities for original issue. The Institutional Trustee may appoint
an authenticating agent that is a U.S. Person acceptable to the Trust to authenticate the Capital
Securities. A Common Security need not be so authenticated.



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



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



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



     Section 6.2 Paving Agent, Transfer Agent and Registrar. The Trust shall maintain in Hartford, Connecticut, an office or agency where the Capital
Securities may be presented for payment (“Paying Agent”), and an office or agency where
Securities may be presented for registration of transfer (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, transfers and exchanges of Securities, such register to be held by a registrar (the
“Registrar”). The Administrators may appoint the Paying Agent, the Registrar, the Transfer
Agent and may appoint one or more additional Paying Agents or one or more co-Registrars, or one or
more co-Transfer Agents in such other locations as it shall determine. The term “Paying
Agent” includes any additional paying agent, the term “Registrar” includes any
additional registrar or co-Registrar and the term “Transfer Agent” includes any additional
transfer agent. The Administrators may change any Paying Agent 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
appoint the Institutional Trustee to act as Paying Agent, Transfer Agent and Registrar for the
Capital Securities and the Common Securities. The Institutional Trustee or any of its Affiliates in
the United States may act as Paying Agent, Transfer Agent or Registrar.



     Section 6.3 Form and Dating. The Capital Securities and the Institutional Trustee’s certificate of authentication thereon
shall be substantially in the form of Exhibit A-1, and the Common Securities shall be substantially
in the form of Exhibit A-2, each of which is hereby incorporated in and expressly made a part of
this Declaration. Certificates may be typed, printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrators, as conclusively evidenced by
their execution thereof. The Securities may have letters, numbers, notations or other marks of
identification or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject if any, or usage (provided that any such
notation, legend or endorsement is in a form acceptable to the Sponsor). The Trust at the direction
of the
Sponsor shall furnish any such legend not contained in Exhibit A-1 to the Institutional Trustee in
writing. Each Capital Security shall be dated on or before 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 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
$500,000.00 and any multiple of $1,000.00 in excess thereof.



29









 





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



     Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.


If:




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



     (b) there shall be delivered to the Registrar, the Administrators and the Institutional
Trustee such security or indemnity as may be required by them to keep each of them harmless;


then, in the absence of notice that such Certificate shall have been acquired by a protected
purchaser, an Administrator on behalf of the Trust shall execute (and in the case of a Capital
Security Certificate, the Institutional Trustee shall authenticate) and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this Section 6.4, the
Registrar or the Administrators may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in
the relevant Securities, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.




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



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



     Section 6.7 Rights of Holders; Waivers of Past Defaults.



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



30









 





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



     At any time after a declaration of acceleration with respect to the Debentures has been made
and before a judgment or decree for payment of the money due has been obtained by the Debenture
Trustee as provided in the Indenture, if the Institutional Trustee fails to annul any such
declaration and waive such default, the Holders of 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 Debenture Issuer 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 Additional Interest on all of the Debentures,




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




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




     (ii) all Events of Default with respect to the Debentures, other than the
non-payment of the principal of the Debentures that has become due solely by such
acceleration, have been cured or waived as provided in Section 5.7 of the Indenture.



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



     Upon receipt by the Institutional Trustee of written notice declaring such an acceleration, or
rescission and annulment thereof, by Holders of any part of the Capital Securities, a record date
shall be established for determining Holders of outstanding Capital Securities entitled to join in
such notice, which record date shall be at the close of business on the day the Institutional
Trustee



31









 




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




     (c) Except as otherwise provided in paragraphs (a) and (b) of this Section 6.7, the Holders of
at least a majority in liquidation amount of the Capital Securities may, on behalf of the Holders
of all the Capital Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and any default or
Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
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 July 31, 2036, the expiration of the term of
the Trust;




     (ii) upon 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) upon the filing of a certificate of dissolution or its equivalent
with respect to the Sponsor, upon the consent of Holders of a Majority in
liquidation amount of the Securities voting together as a single class to file a
certificate of cancellation with respect to the Trust 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) upon the distribution of the Debentures to the Holders of the Securities;




     (v) upon exercise of the right of the Holder of all of the outstanding Common
Securities to dissolve the Trust as provided in Annex I hereto;



32









 






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




     (vii) 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




     (viii) before the issuance of any Securities, with the consent of the
Institutional Trustee 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 of the Statutory Trust Act, and subject to the terms set forth in Annex I, the
Institutional Trustee shall terminate the Trust by filing a certificate of cancellation with the
Secretary of State of the State of Connecticut.



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



     (b) Upon issuance of the Common Securities, the Sponsor shall acquire and retain beneficial
and record ownership of the Common Securities and for so long as the Securities remain outstanding,
the Sponsor shall maintain 100% ownership of the Common Securities; provided,
however, that any permitted successor of the Sponsor, in its capacity as Debenture Issuer,
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 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.



33









 





     (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 of the same tenor to be issued in the name of the designated
transferee or transferees. 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 6.6. 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) The Trust shall not 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, which shall not be
removed unless there is delivered to the Trust such satisfactory evidence, which may include an
opinion of counsel licensed to practice law in the State of Connecticut, 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.
Upon provision of such satisfactory evidence, the Institutional Trustee, at the written direction
of the Trust, shall authenticate and deliver Capital Securities that do not bear the legend.



     (b) Except as permitted by Section 8.2(a), each Capital Security shall bear a legend (the
“Restricted Securities Legend”) in substantially the following form and a Capital Security
shall not be transferred except in compliance with such legend, unless otherwise determined by the
Sponsor, upon the advice of counsel expert in securities law, in accordance with applicable law:




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. 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
THIS SECURITY ONLY (A) TO THE SPONSOR OR THE TRUST, (B) PURSUANT TO A REGISTRATION



34









 







STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A
NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904
(AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE
SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL 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 (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE SPONSOR’S
AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF
WHICH MAY BE OBTAINED FROM THE SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING
THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.




     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 THE SECURITIES OR
ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR 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 THE SECURITIES 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



35









 







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.




     THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $500,000.00 (500 SECURITIES) AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING
A LIQUIDATION AMOUNT OF LESS THAN $500,000.00 SHALL BE DEEMED TO BE VOID AND OF NO
LEGAL EFFECT WHATSOEVER.



     THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.



     (c) To permit registrations of transfers and exchanges, the Trust shall execute and the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s request.



     (d) Registrations of transfers or exchanges will be effected without charge, but only upon
payment (with such indemnity as the Registrar or the Sponsor may require) in respect of any tax or
other governmental charge that may be imposed in relation to it.



     (e) All Capital Securities 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 Capital Securities surrendered upon such registration of
transfer or exchange.



     Section 8.3 Deemed Security Holders. The Trust, the Administrators, the Institutional Trustee, the Paying Agent, the Transfer Agent or
the Registrar may treat the Person in whose name any Certificate shall be registered on the books
and records of the Trust as the sole holder of such Certificate and of the Securities represented
by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever
and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in
such Certificate or in the Securities represented by such Certificate on the part of any Person,
whether or not the Trust, the Administrators, the Institutional Trustee, 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, INSTITUTIONAL TRUSTEE OR OTHERS



     Section 9.1 Liability.



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     (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; or




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



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



     (c) Pursuant to the Statutory Trust Act, the Holders of the Capital Securities shall be
entitled to the same limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State of Connecticut.



     Section 9.2 Exculpation.



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



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



     Section 9.3 Fiduciary Duty.



     (a) To the extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Declaration shall not be liable to the Trust or to any other
Covered Person for its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity, 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:



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



     (b) The Sponsor shall indemnify, to the full extent permitted by law, any Indemnified Person
who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Trust to procure a judgment in its favor arising out of or
in connection with the acceptance or administration of this Declaration by reason of the fact that
he is or was an Indemnified Person against expenses (including reasonable attorneys’ fees and
expenses) actually and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust; provided, however, 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 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 shall deem proper.



     (c) 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 (a)
and (b) of this Section 9.4, or in defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by him in connection therewith.



38









 





     (d) Any indemnification of an Administrator under paragraphs (a) and (b) of this Section 9.4
(unless ordered by a court) shall be made by the Sponsor only as authorized in the specific case
upon a determination that indemnification of the Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set forth in paragraphs (a) and (b). Such
determination shall be made (i) by the Administrators by a majority vote of a Quorum consisting of
such Administrators who were not parties to such action, suit or proceeding, (ii) 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 (iii) by the Common Security Holder of the
Trust.



     (e) To the fullest extent permitted by law, expenses (including reasonable 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 (a) and (b) of this Section 9.4
shall be paid by the Sponsor in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by the Sponsor as
authorized in this Section 9.4. Notwithstanding the foregoing, no advance shall be made by the
Sponsor if a determination is reasonably and promptly made (i) by the Administrators by a majority
vote of a Quorum of disinterested Administrators, (ii) 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 (iii) 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
Indemnified Person 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
his conduct was unlawful. In no event shall any advance be made in instances where the
Administrators, independent legal counsel or the Common Security Holder reasonably determine that
such Indemnified Person deliberately breached his duty to the Trust or its Common or Capital
Security Holders.



     (f) The Institutional Trustee, at the sole cost and expense of the Sponsor, retains the right
to representation by counsel of its own choosing in any action, suit or any other proceeding for
which it is indemnified under paragraphs (a) and (b) of this Section 9.4, without affecting its
right to indemnification hereunder or waiving any rights afforded to it under this Declaration or
applicable law.



     (g) 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 his official capacity and as to action in another capacity while
holding such office. All rights to indemnification under this Section 9.4 shall be deemed to be
provided by a contract between the Sponsor and each Indemnified Person who serves in such capacity
at any time while this Section 9.4 is in effect. Any repeal or modification of this Section 9.4
shall not affect any rights or obligations then existing.



     (h) The Sponsor or the Trust may purchase and maintain insurance on behalf of any Person who
is or was an Indemnified Person against any liability asserted against him and incurred



39









 




by him in any such capacity, or arising out of his status as such, whether or not the Sponsor
would have the power to indemnify him against such liability under the provisions of this Section
9.4.




     (i) For purposes of this Section 9.4, references to “the Trust” shall include, in addition to
the resulting or surviving entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any Person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving at the request of
such constituent entity as a director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 9.4 with respect to the resulting
or surviving entity as he would have with respect to such constituent entity if its separate
existence had continued.



     (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 9.4 shall, unless otherwise provided when authorized or ratified, (i) 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; and (ii) survive the termination or expiration of
this Declaration or the earlier removal or resignation of an Indemnified Person.



     Section 9.5 Outside Businesses. Any Covered Person, the Sponsor and the Institutional Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the Holders of Securities
shall have no rights by virtue of this Declaration in and to such independent ventures or the
income or profits derived therefrom, and the pursuit of any such venture, even if competitive with
the business of the Trust, shall not be deemed wrongful or improper. None of any Covered Person,
the Sponsor 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 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 and the Institutional Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other obligations of the
Sponsor or its Affiliates.



     Section 9.6 Compensation; Fee. The Sponsor agrees:



     (a) to pay to the Institutional Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree 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 Institutional Trustee upon
request for all reasonable expenses, disbursements and advances incurred or made by the
Institutional Trustee in accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of their respective agents and counsel),
except any such expense, disbursement or advance as may be attributable to its negligence, bad
faith or willful misconduct.



40









 





     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 the Institutional Trustee.



     No Trustee may claim any lien or charge on any property of the Trust as a result of any amount
due pursuant to this Section 9.6.



ARTICLE X




ACCOUNTING



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



     Section 10.2 Certain Accounting Matters.



     (a) At all times during the existence of the Trust, the Administrators shall keep, or cause to
be kept at the principal office of the Trust in the United States, as defined for purposes of
Treasury regulations section 301.7701-7, full books of account, records and supporting documents,
which shall reflect in reasonable detail each transaction of the Trust. The books of account shall
be maintained, at the Sponsor’s expense, in accordance with generally accepted accounting
principles, consistently applied. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrators.



     (b) The Administrators shall cause to be duly prepared and delivered to each of the Holders of
Securities Form 1099 or such other annual United States federal income tax information statement
required by the Code, containing such information with regard to the Securities held by each Holder
as is required by the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrators shall endeavor to deliver all
such statements within 30 days after the end of each Fiscal Year of the Trust.



     (c) The Administrators, at the Sponsor’s expense, shall cause to be duly prepared at the
principal office of the Trust in the United States, as defined for purposes of Treasury regulations
section 301.7701-7, and filed an annual United States federal income tax return on a Form 1041 or
such other form required by United States federal income tax law, and any other annual income tax
returns required to be filed by the Administrators on behalf of the Trust with any state or local
taxing authority.



     Section 10.3 Banking. The Trust shall maintain in the United States, as defined for purposes of Treasury regulations
section 301.7701-7, one or more bank accounts in the name and for the sole benefit of the Trust;
provided, however, that all payments of funds in respect of the Debentures held by
the Institutional Trustee shall be made directly to the 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



41









 







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 in the amount of the withholding to the Holder. In the event of any claimed
overwithholding, Holders shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made, the Institutional
Trustee or any Paying Agent may reduce subsequent Distributions by the amount of such withholding.



ARTICLE XI




AMENDMENTS AND MEETINGS



     Section 11.1 Amendments.



     (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
the Institutional Trustee.



     (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




     (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; or




     (B) cause the Trust to be deemed to be an Investment Company required
to be registered under the Investment Company Act.



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



42









 





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



     (e) Section 8.1 (b) and 8.1(c) and this Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.



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



     (g) The rights of the Holders of the Capital Securities under Article IV to appoint and remove
the Institutional Trustee shall not be amended without the consent of the Holders of a Majority in
liquidation amount of the Capital Securities.



     (h) This Declaration may be amended by the Institutional Trustee and the Holders 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 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 rights, preferences or privileges of the Holders of Securities;



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



     Section 11.2 Meetings of the Holders of Securities; Action by Written Consent.



     (a) Meetings of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms of this Declaration
or the terms of the Securities. The Administrators shall call a meeting of the Holders of such
class if directed to do so by the Holders of at least 10% in liquidation amount of such class of
Securities.



43









 




Such direction shall be given by delivering to the Administrators one or more calls in a
writing stating that the signing Holders of the Securities wish to call a meeting and indicating
the general or specific purpose for which the meeting is to be called. Any Holders of the
Securities calling a meeting shall specify in writing the Certificates held by the Holders of the
Securities exercising the right to call a meeting and only those Securities represented by such
Certificates shall be counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.




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




     (i) notice of any such meeting shall be given to all the Holders of the
Securities having a right to vote thereat at least 7 days and not more than 60 days
before the date of such meeting. Whenever a vote, consent or approval of the Holders
of the Securities is permitted or required under this Declaration, 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 in liquidation amount 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 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 Connecticut relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Connecticut corporation
and the Holders of the Securities were stockholders of a Connecticut 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, or the terms of the
Securities 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



44









 







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 section 301.7701-7).



ARTICLE XII




REPRESENTATIONS OF INSTITUTIONAL TRUSTEE



     Section 12.1 Representations and Warranties of Institutional Trustee. The 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 national banking association with trust powers, duly
organized and validly existing under the laws of the United States of America 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 execution, delivery and performance by the Institutional Trustee of this Declaration
has been duly authorized by all necessary corporate action on the part of the Institutional
Trustee. This Declaration has been duly executed and delivered by the Institutional Trustee, and it
constitutes a legal, valid and binding obligation of the Institutional Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors’ rights generally and to general principles
of equity (regardless of whether considered in a proceeding in equity or at law);



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



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



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):



45









 




Alliance Capital Partners Statutory Trust I

8100 Nations Way

Jacksonville, Florida 32256

Attention: Terence G. Vane, Jr.

Telecopy: (904) 281-6443




     (b) 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):


State Street Bank and Trust Company of Connecticut, National Association 225 Asylum Street, Goodwin Square

Hartford, Connecticut 06103

Attention: Vice President, Corporate Trust Department

Telecopy: 860-244-1889



With a copy to:



State Street Bank and Trust Company

P.O. Box 778

Boston, Massachusetts 02102-0778

Attention: Paul D. Allen, Corporate Trust Department

Telecopy: (617) 662-1462




     (c) 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):


Alliance Capital Partners, L.P.

8100 Nations Way

Jacksonville, Florida 32256

Attention: Terence G. Vane, Jr.

Telecopy: (904) 281-6443




     (d) 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 of the parties hereunder shall be governed by and interpreted in
accordance with the law of the State of Connecticut and all rights and remedies shall be governed
by such laws without regard to the principles of conflict of laws of the State of Connecticut or
any other jurisdiction that would call for the application of the law of any jurisdiction other
than the State of Connecticut; provided, however, that there shall not be
applicable to the Trust, the Institutional Trustee or this Declaration any provision of the laws



46









 




(statutory or common) of the State of Connecticut pertaining to trusts that relate to or regulate,
in a manner inconsistent with the terms hereof (a) the filing with any court or governmental body
or agency of trustee accounts or schedules of trustee fees and charges, (b) affirmative
requirements to post bonds for trustees, officers, agents or employees of a trust, (c) the
necessity for obtaining court or other governmental approval concerning the acquisition, holding or
disposition of real or personal property, (d) fees or other sums payable to trustees, officers,
agents or employees of a trust, (e) the allocation of receipts and expenditures to income or
principal, or (f) restrictions or limitations on the permissible nature, amount or concentration of
trust investments or requirements relating to the titling, storage or other manner of holding or
investing trust assets.




     Section 13.3 Intention of the Parties. It is the intention of the parties hereto that the Trust be classified for United States federal
income tax purposes as a grantor trust. The provisions of this Declaration shall be interpreted to
further this intention of the parties.



     Section 13.4 Headings. Headings contained in this Declaration are inserted for convenience of reference only and do not
affect the interpretation of this Declaration or any provision hereof.



     Section 13.5 Successors and Assigns. Whenever in this Declaration any of the parties hereto is named or referred to, the successors
and assigns of such party shall be deemed to be included, and all covenants and agreements in this
Declaration by the Sponsor and the Institutional Trustee shall bind and inure to the benefit of
their respective successors and assigns, whether or not so expressed.



     Section 13.6 Partial Enforceability. If any provision of this Declaration, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Declaration, or the application of such
provision to persons or circumstances other than those to which it is held invalid, shall not be
affected thereby.



     Section 13.7 Counterparts. This Declaration may contain more than one counterpart of the signature page and this Declaration
may be executed by the affixing of the signature of each of the Institutional Trustee 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.



Signatures appear on the following page




47









 





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



	 	 	 	 	 

	 	 	STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,

NATIONAL ASSOCIATION,

as Institutional Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name: Paul D. Allen
	 

	 	 	 	Title: Vice President
	 
	 	 	 	 
	 	 	ALLIANCE CAPITAL PARTNERS, L.P., as Sponsor
	 

	 	By:
	 	Alliance Capital Partners, Inc., as general partner
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	ALLIANCE CAPITAL PARTNERS STATUTORY TRUST I
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Robert M. Clements, Administrator
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Gary A. Meeks, Administrator
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Terence G. Vane, Jr., Administrator











 









 








ANNEX I




TERMS OF SECURITIES



          Pursuant to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of July 31,
2001 (as amended from time to time, the “Declaration”), the designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital Securities and the Common
Securities are set out below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration):



     1. Designation and Number.



          (a) 15,000 Floating Rate Capital Securities of Alliance Capital Partners Statutory Trust I
(the “Trust”), with an aggregate stated liquidation amount with respect to the assets of the Trust
of Fifteen Million Dollars ($15,000,000) and a stated liquidation amount with respect to the assets
of the Trust of $1,000.00 per Capital Security, are hereby designated for the purposes of
identification only as 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.



          (b) 464 Floating Rate 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.



     2. Distributions.



          (a) Distributions will be payable on each Security for the period beginning on (and including)
the date of original issuance and ending on (but excluding) October 31, 2001 at a rate per annum of
7.29% and shall bear interest for each successive period beginning on (and including) October 31,
2001, and each succeeding Distribution Payment Date, and ending on (but excluding) the next
succeeding Distribution Payment Date (each, a “Distribution Period”) at a rate per annum
equal to the 3-Month LIBOR, determined as described below, plus 3.58%; provided,
however, that prior to July 31, 2011, such annual rate shall not exceed 12.50% (the
“Coupon Rate”) applied to the stated liquidation amount thereof, such 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
applicable Distribution Rate (to the extent permitted by law). A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the Institutional Trustee
and to the extent the Institutional Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full quarterly period on the basis of
the actual number of days in the Distribution Period concerned divided by 360. In the event that
any date on which a Distribution is payable on the Securities is not a Business Day, then payment
of interest payable on such date shall be made on the next succeeding day which is a Business Day
(and without any interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made on the date such




I-1 









 




payment was originally payable. The amount of interest payable for the Distribution Period commencing
on October 31, 2001 and each succeeding Distribution Period will be calculated by applying the
Coupon Rate to the principal amount outstanding at the commencement of the Distribution Period and
multiplying each such amount by the actual number of days in the Distribution Period concerned
divided by 360. All percentages resulting from any calculations on the Capital 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).




          (b) Distributions on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of distribution payment periods as described
herein, quarterly in arrears on October 31, January 31, April 30 and July 31 of each year,
commencing on October 31, 2001 (each a “Distribution Payment Date”) when, as and if
available for payment. The Debenture Issuer has the right under the Indenture to defer payments of
interest on the Debentures, so long as no Indenture Event of Default has occurred and is
continuing, by deferring the payment of interest on the Debentures for up to 20 consecutive
quarterly periods (each an “Extension Period”) at any time and from time to time, subject
to the conditions described below, although such interest would continue to accrue on the
Debentures at the Distribution Rate compounded quarterly (to the extent permitted by law) during
any Extension Period. No Extension Period may end on a date other than a Distribution Payment Date.
At the end of any such Extension Period the Debenture Issuer shall pay all interest then accrued
and unpaid on the Debentures (together with Additional Interest thereon); provided,
however, that no Extension Period may extend beyond the Maturity Date and provided
further, however, during any such Extension Period, the Debenture Issuer and its
Affiliates shall 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 Ownership
Interests or such Affiliate’s capital stock (other than payments of dividends or distributions to
the Debenture Issuer) or make any guarantee payments with respect to the foregoing or (ii) make any
payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Debenture Issuer or any Affiliate that rank pan passu in all respects with or
junior in interest to the Debentures (other than, with respect to clauses (i) or (ii) above, (a)
repurchases, redemptions or other acquisitions of shares of Ownership Interests of the Debenture
Issuer in connection with any employment contract, benefit plan or other similar arrangement with
or for the benefit of one or more employees, officers, directors or consultants, in connection with
a dividend or distribution reinvestment or Ownership Interest purchase plan or in connection with
the issuance of Ownership Interests of the Debenture Issuer (or securities convertible into or
exercisable for such Ownership Interests) as consideration in an acquisition transaction entered
into prior to the applicable Extension Period, (b) as a result of any exchange or conversion of any
class or series of the Debenture Issuer’s Ownership Interests (or any capital stock of a subsidiary
of the Debenture Issuer) for any class or series of the Debenture Issuer’s Ownership Interests or
of any class or series of the Debenture Issuer’s indebtedness for any class or series of the
Debenture Issuer’s Ownership Interests, (c) the purchase of fractional interests in shares or units
of the Debenture Issuer’s Ownership Interests pursuant to the conversion or exchange provisions of
such Ownership Interest or the security being converted or exchanged, (d) any declaration of a
dividend or distribution in connection with any Ownership Interest holder’s rights plan, or the
issuance of rights, Ownership Interests or other property under any Ownership Interest holder’s
rights plan, or the redemption or repurchase of rights pursuant thereto, (e) any



I-2 









 




dividend or distribution in the form of Ownership Interests, warrants, options or other rights
where the dividend Ownership Interest or the Ownership Interests issuable upon exercise of such
warrants, options or other rights is the same Ownership Interest as that on which the dividend or
distribution is being paid or ranks pari passu with or junior to such Ownership Interest and any
cash payments in lieu of fractional shares or units issued in connection therewith, or (f) payments
under the Capital Securities Guarantee). 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. Upon the termination of any Extension Period
and upon the payment of all accrued and unpaid interest and Additional Interest, the Debenture
Issuer may commence a new Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except at the end thereof,
but each installment of interest that would otherwise have been due and payable during such
Extension Period shall bear Additional Interest. 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 available for the
payment of such distributions in the Property Account of the Trust. The Trust’s funds available for
Distribution to the Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.




          (c) Distributions on the Securities will be payable to the Holders thereof as they appear on
the books and records of the Trust on the relevant record dates. The relevant record dates shall be
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. If any date on which Distributions are
payable on the Securities is not a Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such payment date.



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



     3. Liquidation Distribution Upon Dissolution. In the event of the voluntary or
involuntary liquidation, dissolution, winding-up or termination of the Trust (each a
“Liquidation”) other than in connection with a redemption of the Debentures, the Holders of
the Securities will be entitled to receive out of the assets of the Trust available for
distribution to Holders of the Securities, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the



I-3 









 




Debenture Issuer), distributions equal to the lesser of (i) the aggregate of the stated
liquidation amount of $1,000.00 per Security plus accrued and unpaid Distributions thereon to
the date of payment, to the extent the Trust shall have funds available therefor, and (ii) the
amount of assets of the Trust remaining available for distribution to Holders in liquidation of the
Trust (such amount being, in either case, the “Liquidation Distribution”), unless in
connection with such Liquidation, the Debentures in aggregate stated principal amount equal to the
aggregate stated liquidation amount of such Securities, with an interest rate equal to the
Distribution Rate of, and bearing accrued and unpaid interest in an amount equal to the accrued and
unpaid Distributions on, and having the same record date as, such Securities, after paying or
making reasonable provision to pay all claims and obligations of the Trust in accordance with 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 Special Event), subject
to the receipt by the Debenture Issuer of prior approval from the Board of Governors of the Federal
Reserve System and any successor federal agency that is primarily responsible for regulating the
activities of Company (the “Federal Reserve”), if the Company is a bank holding company, or
from the Office of Thrift Supervision and any successor federal agency that is primarily
responsible for regulating the activities of Company, (the “OTS”) if the company is a savings and
loan holding company, in either case if then required under applicable capital guidelines or
policies of the Federal Reserve or OTS, as applicable, 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.



     If a Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v) in Section
7.1(a) of the Declaration, the Trust shall be liquidated by the Institutional Trustee as
expeditiously as it determines to be possible by distributing, after satisfaction of liabilities to
creditors of the Trust, to the Holders of the Securities, the Debentures on a Pro Rata basis to the
extent not satisfied by the Debenture Issuer, unless such distribution is determined by the
Institutional Trustee not to be practical, in which event such Holders will be entitled to receive
out of the assets of the Trust available for distribution to the Holders, after satisfaction of
liabilities of creditors of the Trust to the extent not satisfied by the Debenture Issuer, an
amount equal to the Liquidation Distribution. An early Liquidation of the Trust pursuant to clause
(iv) of Section 7.1(a) of the Declaration shall occur if the Institutional Trustee determines that
such Liquidation is possible by distributing, after satisfaction of liabilities to creditors of
Trust, to the Holders of the Securities on a Pro Rata basis, the Debentures, and such distribution
occurs.



     If, upon any such Liquidation the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution,
then the amounts payable directly by the Trust on such Capital Securities shall be paid to the
Holders of the Trust 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.



     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) the Holders of the Capital
Securities will receive certificates representing the Debentures to be delivered upon such
distribution, and (iii) any certificates representing the Capital Securities still outstanding will
be



I-4 









 




deemed to represent undivided beneficial interests in such of the Debentures as have an
aggregate principal amount equal to the aggregate stated liquidation amount 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.




     4. Redemption and Distribution.



          (a) The Debentures will mature on July 31, 2031. The Debentures may be redeemed by the
Debenture Issuer, in whole or in part at any time and from time to time on or after July 31, 2006,
at the Redemption Price. In addition, the Debentures may be redeemed by the Debenture Issuer at the
Special Redemption Price, in whole but not in part, at any Distribution Payment Date, upon the
occurrence and continuation of a Special Event within 120 days following the occurrence of such
Special Event at the Special Redemption Price, upon not less than 30 nor more than 60 days’ notice
to holders of such Debentures so long as such Special Event 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 the Federal Reserve (if the Debenture Issuer is a bank holding company) or
prior approval from the OTS (if the Debenture Issuer is a savings and loan holding company), in
each case if then required under applicable capital guidelines or policies of the applicable
federal agency.



     “Tax Event” means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any amendment to or change
(including any announced prospective change) in the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or therein, or as a result
of any official administrative pronouncement (including any private letter ruling, technical advice
memorandum, field service advice, regulatory procedure, notice or announcement including any notice
or announcement of intent to adopt such procedures or regulations (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 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, duties or other governmental charges.



     “Investment Company Event” means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel experienced in such matters to the effect that, as a result of the occurrence
of a change in law or regulation or written change (including any announced prospective 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 will
be considered an Investment Company that is required to be registered under the Investment



I-5 









 




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 issuance of the Debentures.




     “Capital Treatment Event” means the receipt by the Debenture Issuer and the Trust of
an opinion of counsel that, as a result of the occurrence of any amendment to, or change (including
any announced prospective change) in, the laws 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 issuance
of the Debentures, there is more than an insubstantial risk that the Sponsor will not be entitled
to treat an amount equal to the aggregate liquidation amount of the Debentures as “Tier 1 Capital”
(or its then equivalent) for purposes of the capital adequacy guidelines of the Federal Reserve, as
then in effect and applicable to the Sponsor (or if the Sponsor is not a bank holding company, such
guidelines applied to the Company as if the Company were subject to such guidelines);
provided, however, that the inability of the Sponsor to treat all or any portion of
the liquidation amount of the Debentures as Tier 1 Capital shall not constitute the basis for a
Capital Treatment Event, if such inability results from the Sponsor 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 qualify for treatment as Tier I Capital under
applicable capital adequacy guidelines; provided further, however, that the
distribution of Debentures in connection with the Liquidation of the Trust shall not in and of
itself constitute a Capital Treatment Event unless such Liquidation shall have occurred in
connection with a Tax Event or an Investment Company Event.



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



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



	 	 	 	 	 
	Year Beginning on	 	Percentage
	July 31, 2006
	 	 	107.5	%
	July 31, 2007
	 	 	106.0	%
	July 31, 2008
	 	 	104.5	%
	July 31, 2009
	 	 	103.0	%
	July 31, 2010
	 	 	101.5	%
	July 31, 2011 and after
	 	 	100	%





plus accrued and unpaid interest on such Debentures to the Redemption Date.




     “Special Redemption Date” means a Redemption Date on which a Special Event redemption
Occurs.



     “Special Redemption Price” means (i) if the Special Redemption Date is before July 31,
2006, an amount in cash equal to 107.5% of the principal amount of the Debentures to be prepaid,
plus accrued and unpaid interest on such Debentures to such Special Redemption Date, or (ii) if the
Special Redemption Date is on or after July 31, 2006, the price for the Debentures set forth in



I-6 









 




the above Redemption Price table for such Special Redemption Date, plus accrued and unpaid
interest on such Debentures to such Special Redemption Date.




     “Redemption Date” shall mean the date fixed for the redemption of Capital Securities,
which shall be October 31, January 31, April 30 or July 31 commencing October 31, 2006.



     “3-Month LIBOR” means the London interbank offered rate for three-month, Eurodollar
deposits determined by the Debenture Trustee in the following order of priority:




     (1) the rate (expressed as a percentage per annum) for Eurodollar deposits having a
three-month maturity that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on
the particular Determination Date (as defined below). “Telerate Page 3750” means the display
designated as “Page 3750” on the Dow Jones Telerate Service or such other page as may
replace Page 3750 on that service or such other service or services as may be nominated by
the British Bankers’ Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollars deposits;




     (2) if such rate does not appear on Telerate Page 3750 as of 11:00 a.m. (London time)
on the Determination Date, 3-Month LIBOR will be the arithmetic mean of the rates (expressed
as percentages per annum) for Eurodollar deposits having a three-month maturity that appear
on Reuters Monitor Money Rates Page LIBO (“Reuters Page LIBO”) as of 11:00 a.m. (London
time) on such Determination Date;




     (3) if such rate does not appear on Reuters Page LIBO as of 11:00 a.m. (London time) on
the related Determination Date, the Debenture Trustee will request the principal London
offices of four leading banks in the London interbank market to provide such banks’ offered
quotations (expressed as percentages per annum) to prime banks in the London interbank
market for Eurodollar deposits having a three-month maturity as of 11:00 a.m. (London time)
on such Determination Date. If at least two quotations are provided, 3-Month LIBOR will be
the arithmetic mean of such quotations;




     (4) if fewer than two such quotations are provided as requested in clause (3) above,
the Debenture Trustee will request four major New York City banks to provide such banks’
offered quotations (expressed as percentages per annum) to leading European banks for loans
in Eurodollars as of 11:00 a.m. (London time) on such Determination Date. If at least two
such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and




     (5) if fewer than two such quotations are provided as requested in clause (4) above,
3-Month LIBOR will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period. If the rate for Eurodollar deposits
having a three-month maturity that initially appears on Telerate Page 3750 or Reuters Page
LIBO, as the case may be, as of 11:00 a.m. (London time) on the related Determination Date
is superseded on the Telerate page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate by 12:00 noon (London time) on such Determination Date, then the corrected
rate as so substituted on the applicable page will be the applicable 3-Month LIBOR for such
Determination Date.



I-7 









 






     (6) The Coupon Rate for any Distribution Period will at no time be higher than the
maximum rate then permitted by New York law as the same may be modified by United States
law.



     “Determination Date” means the date that is two London Banking Days (i.e., a day in
which dealings in deposits in U.S. dollars are transacted in the London interbank market) preceding
the particular Distribution Period for which a Coupon Rate is being determined.



     “Maturity Date” means July 31, 2031.



          (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 or Special Redemption Price, as applicable, 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 redeemed Pro Rata from each Holder of Capital Securities.



          (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 paragraph 4(e)(i), a Redemption/Distribution Notice shall be deemed to be
given on the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of such Securities at the address of each such Holder appearing on the books and
records of the Trust. No defect in the Redemption/Distribution Notice or in the mailing
thereof with respect to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.




          (ii) 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 paragraph 4 (which notice will be irrevocable), then, provided that the
Institutional Trustee has a sufficient amount of cash in connection with the related
redemption or maturity of the Debentures, the Institutional Trustee will pay the relevant



I-8 









 







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




          (iii) Redemption/Distribution Notices shall be sent by the Administrators on behalf of
the Trust to (A) in respect of the Capital Securities, the Holders thereof and (B) in
respect of the Common Securities, the Holder thereof.



     5. Voting Rights — Capital Securities.



          (a) Except as provided under paragraphs 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting rights. The Administrators
are required to call a meeting of the Holders of the Capital Securities if directed to do so by
Holders of at least 10% in liquidation amount of the Capital Securities.



          (b) Subject to the requirements of obtaining a tax opinion by the Institutional Trustee in
certain circumstances set forth in the last sentence of this paragraph, the Holders of a Majority
in liquidation amount of the Capital Securities, voting separately as a class, have the right to
direct the time, method, and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the Institutional Trustee
under the Declaration, including the right to direct the Institutional Trustee, as holder of the
Debentures, to (i) exercise the remedies available under the Indenture as the holder of the



I-9 









 




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 aggregate
principal amount of Debentures (a “Super Majority”) affected thereby, the
Institutional Trustee may only give such consent or take such action at the written direction of
the Holders of at least the proportion in liquidation amount of the Capital Securities outstanding
which the relevant Super Majority represents of the aggregate principal amount of the Debentures
outstanding. If the Institutional Trustee fails to enforce its rights under the Debentures after
the Holders of a Majority in liquidation amount of such Capital Securities have so directed the
Institutional Trustee, to the fullest extent permitted by law, a Holder of the Capital Securities
may institute a legal proceeding directly against the Debenture Issuer to enforce the Institutional
Trustee’s rights under the Debentures without first instituting any legal proceeding against the
Institutional Trustee or any other person or entity. Notwithstanding the foregoing, if an Event of
Default has occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date the interest or
principal is payable (or in the case of redemption, the redemption date), then a Holder of record
of the Capital Securities may directly institute a proceeding for enforcement of payment on or
after the respective due dates specified in the Debentures, to such Holder directly of the
principal of or interest on the Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Securities of such Holder. The Institutional Trustee
shall notify all Holders of the Capital Securities of any default actually known to the
Institutional Trustee with respect to the Debentures unless (x) such default has been cured prior
to the giving of such notice or (y) the Institutional Trustee determines in good faith that the
withholding of such notice is in the interest of the Holders of such Capital Securities, except
where the default relates to the payment of principal of or interest on any of the Debentures. Such
notice shall state that such Indenture Event of Default also constitutes an Event of Default
hereunder. Except with respect to directing the time, method and place of conducting a proceeding
for a remedy, the Institutional Trustee shall not take any of the actions described in clauses (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 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 direction of the Holders of at least the proportion in
liquidation amount of the 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 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.



I-10 









 





     A waiver of an Indenture Event of Default will constitute a waiver of the corresponding Event
of Default hereunder. Any required approval or direction of Holders of the Capital Securities may
be given at a separate meeting of Holders of the Capital Securities convened for such purpose, at a
meeting of all of the Holders of the Securities in the Trust or pursuant to written consent. The
Institutional Trustee will cause a notice of any meeting at which Holders of the Capital Securities
are entitled to vote, or of any matter upon which action by written consent of such Holders is to
be taken, to be mailed to each Holder of record of the Capital Securities. Each such notice will
include a statement setting forth the following information (i) the date of such meeting or the
date by which such action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or consents. No vote
or consent of the Holders of the Capital Securities will be required for the Trust to redeem and
cancel Capital Securities or to distribute the Debentures in accordance with the Declaration and
the terms of the Securities.



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



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



     6. Voting Rights — Common Securities.



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



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



          (c) Subject to Section 6.7 of the Declaration and only after each Event of Default (if any)
with respect to the Capital Securities has been cured, waived, or otherwise eliminated and subject
to the requirements of the second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may direct the time,
method, and place of conducting any proceeding for any remedy available to the Institutional
Trustee, or exercising any trust or power conferred upon the Institutional Trustee under the
Declaration, including (i) directing the time, method, place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive any past default and its consequences
that is waivable under the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided,
however, that, where a consent or action under the Indenture would require a Super
Majority, the Institutional Trustee may only give such consent or take such action at the written
direction of the



I-11 









 




Holders of at least the proportion in liquidation amount of the Common Securities which the
relevant Super Majority represents of the aggregate principal amount of the Debentures outstanding.
Notwithstanding this paragraph 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 (i), (ii) or (iii) above, unless the
Institutional Trustee has obtained an opinion of tax counsel to the effect that for the purposes of
United States federal income tax the Trust will not be classified as other than a grantor trust on
account of such action. If the Institutional Trustee fails to enforce its rights under the
Declaration to the fullest extent permitted by law, any Holder of the Common Securities may
institute a legal proceeding directly against any Person to enforce the Institutional Trustee’s
rights under the Declaration, without first instituting a legal proceeding against the
Institutional Trustee or any other Person.




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



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



     7. Amendments to Declaration and Indenture.



          (a) In addition to any requirements under Section 11.1 of the Declaration, if any proposed
amendment to the Declaration provides for, or the Institutional Trustee, Sponsor or Administrators
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 at least a Majority in liquidation amount of the Securities, affected
thereby; provided, however, if any amendment or proposal referred to in clause (i)
above would adversely affect only the Capital Securities or only the Common Securities, then only
the affected class will be entitled to vote on such amendment or proposal and such amendment or
proposal shall not be effective except with the approval of a Majority in liquidation amount of
such class of Securities.



          (b) In the event the consent of the Institutional Trustee as the holder of the Debentures is
required under the Indenture with respect to any amendment, modification or



I-12 









 




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 direction of the Holders of
at least the proportion in liquidation amount of the Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.




          (c) Notwithstanding the foregoing, no amendment or modification may be made to 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 then 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 of, any Common Security, and no other payment on account of redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full in cash of all accumulated
and unpaid Distributions on all outstanding Capital Securities for all distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all outstanding Capital Securities then called for redemption, shall
have been made or provided for, and all funds immediately



I-13 









 




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




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



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



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








I-14 









 








EXHIBIT A-1




FORM OF CAPITAL SECURITY CERTIFICATE



[FORM OF FACE OF SECURITY]



     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. 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
AND ANY APPLICABLE STATE SECURITIES LAW. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE SPONSOR OR THE TRUST, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A) OF RULE 501 UNDER
THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL 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 (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE SPONSOR’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE DECLARATION OF TRUST, A COPY OF WHICH MAY BE OBTAINED FROM THE
SPONSOR OR THE TRUST. HEDGING TRANSACTIONS INVOLVING THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN
COMPLIANCE WITH THE SECURITIES ACT.



     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 THE SECURITIES OR ANY INTEREST
THEREIN,



A-1-1 









 




UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR 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 THE SECURITIES 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.




     THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $500,000.00 (500 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $500,000.00
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.



     THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.



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



P-1          15,000




July 31, 2001



Certificate Evidencing Floating Rate Capital Securities



of



Alliance Capital Partners Statutory Trust I



(liquidation amount $1,000.00 per Capital Security)



     Alliance Capital Partners Statutory Trust I, a statutory trust created under the laws of the
State of Connecticut (the “Trust”), hereby certifies that The Chase Manhattan Bank, as indenture
trustee under the Indenture dated as of July 31, 2001 among Preferred Term Securities III, Ltd.,
Preferred Term Securities III, Inc. and The Chase Manhattan Bank (the “Holder”) is the registered
owner of securities of the Trust representing undivided beneficial interests in the assets of the
Trust, (liquidation amount $1,000.00 per capital security) (the “Capital Securities”). Subject to
the



A-1-2 









 




Declaration (as defined below), the Capital Securities are transferable on the books and
records of the Trust in person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Capital Securities represented hereby are issued
pursuant to, and shall in all respects be subject to, the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of July 31, 2001, among Robert M. Clements, Gary A.
Meeks and Terence G. Vane, Jr. as Administrators, State Street Bank and Trust Company of
Connecticut, National Association, as Institutional Trustee, Alliance Capital Partners, L.P., 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
such amended and restated declaration as the same may be amended from time to time (the
“Declaration”). Capitalized terms used herein but not defined shall have the meaning given them in
the Declaration. The Holder is entitled to the benefits of the Guarantee to the extent provided
therein. The Sponsor will provide a copy of the Declaration, the Guarantee, and the Indenture to
the Holder without charge upon written request to the Trust at its principal place of business.




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



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



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



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



	 	 	 	 	 
	 	ALLIANCE CAPITAL PARTNERS STATUTORY TRUST I

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Administrator 	 
	 



CERTIFICATE OF AUTHENTICATION





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




	 	 	 	 	 
	 	STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,


as the Institutional Trustee	 
	 	 	 
	 	By:  	
 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




A-1-3 









 





[FORM OF REVERSE OF SECURITY]




     Distributions payable on each Capital Security will be payable at an annual rate equal to
7.29% beginning on (and including) the date of original issuance and ending on (but excluding)
October 31, 2001 and at an annual rate for each successive period beginning on (and including)
October 31, 2001, and each succeeding Distribution Payment Date, and ending on (but excluding) the
next succeeding Distribution Payment Date (each a “Distribution Period”), equal to 3-Month LIBOR,
determined as described below, plus 3.58%; provided, however, that prior to July
31, 2011, such annual rate shall not exceed 12.50% (the “Coupon Rate”) applied to the stated
liquidation amount of $1,000.00 per Capital Security, such rate being the rate of interest payable
on the Debentures to be held by the Institutional Trustee. Distributions in arrears for more than a
quarterly period will bear interest thereon compounded quarterly at the Distribution Rate (to the
extent permitted by applicable law). The term “Distributions” as used herein includes interest
payments (including Additional Interest and principal on the Debentures held by the Institutional
Trustee) and any such compounded interest payable on the Debentures unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of the Debentures held
by the Institutional Trustee and to the extent the Institutional Trustee has funds available
therefor. As used herein, “Determination Date” means the date that is two London Banking Days
(i.e., a day in which dealings in deposits in U.S. dollars are transacted in the London interbank
market) preceding the commencement of the relevant Distribution Period. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution period on the basis of
the actual number of days in the Distribution Period concerned divided by 360. In the event that
any date on which a distribution is payable on this Capital Security is not a Business Day, then a
payment of the distribution payable on such date will be made on the next succeeding day which is a
Business Day (and without any distribution or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment shall be made on
the immediately preceding Business Day, in each case with the same force and effect as if made on
the date the payment was originally payable. The amount of interest payable for the Distribution
Period commencing October 31, 2001 and each succeeding Distribution Period will be calculated by
applying the Coupon Rate to the principal amount outstanding at the commencement of the
Distribution Period and multiplying each such amount by the actual number of days in the
Distribution Period concerned divided by 360.



     “3-Month LIBOR” as used herein, means the London interbank offered rate for three-month
Eurodollar deposits determined by the Debenture Trustee in the following order of priority: (i) the
rate (expressed as a percentage per annum) for Eurodollar deposits having a three-month maturity
that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the particular Determination
Date (“Telerate Page 3750” means the display designated as “Page 3750” on the Dow Jones Telerate
Service or such other page as may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollars deposits); (ii) if such rate
does not appear on Telerate Page 3750 as of 11:00 a.m. (London time) on the Determination Date,
3-Month LIBOR will be the arithmetic mean of the rates (expressed as percentages per annum) for
Eurodollar deposits having a three-month maturity that appear on Reuters Monitor Money Rates Page
LIBO (“Reuters Page LIBO”) as of 11:00 a.m. (London time) on such Determination Date; (iii) if such
rate does not appear on Reuters Page LIBO as of 11:00 a.m. (London time) on the related
Determination Date, the Debenture Trustee will request the principal London offices of four leading
banks in the London interbank market to provide such banks’ offered quotations (expressed as
percentages per annum) to prime banks in the London



A-1-4 









 




interbank market for Eurodollar deposits having a three-month maturity as of 11:00 a.m.
(London time) on such Determination Date. If at least two quotations are provided, 3-Month LIBOR
will be the arithmetic mean of such quotations; (iv) if fewer than two such quotations are provided
as requested in clause (iii) above, the Debenture Trustee will request four major New York City
banks to provide such banks’ offered quotations (expressed as percentages per annum) to leading
European banks for loans in Eurodollars as of 11:00 a.m. (London time) on such Determination Date.
If at least two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of such
quotations; and (v) if fewer than two such quotations are provided as requested in clause (iv)
above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to the Distribution Period
immediately preceding such current Distribution Period. If the rate for Eurodollar deposits having
a three-month maturity that initially appears on Telerate Page 3750 or Reuters Page LIBO, as the
case may be, as of 11:00 a.m. (London time) on the related Determination Date is superseded on the
Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a corrected rate by 12:00 noon
(London time) on such Determination Date, then the corrected rate as so substituted on the
applicable page will be the applicable 3-Month LIBOR for such Determination Date.




     The Coupon Rate for any Distribution Period will at no time be higher than the maximum rate
then permitted by New York law as the same may be modified by United States law.



     All percentages resulting from any calculations on the Capital 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).



     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 October 31, January 31, April 30, and July 31 of each year, commencing on October 31, 2001. The
Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures
by extending the interest payment period for up to 20 consecutive quarterly periods (each an
“Extension Period”) on the Debentures, subject to the conditions described below, although such
interest would continue to accrue on the Debentures at an annual rate equal to the Distribution
Rate compounded quarterly to the extent permitted by law during any Extension Period. No Extension
Period may end on a date other than an interest Payment Date. At the end of any such Extension
Period the Sponsor shall pay all interest then accrued and unpaid on the Debentures (together with
Additional Interest thereon); provided, however, that no Extension Period may
extend beyond the Maturity Date. Prior to the termination of any Extension Period, the Sponsor 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. Upon the termination of any Extension Period and upon the payment of all
accrued and unpaid interest and Additional Interest, the Sponsor may commence a new Extension
Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end thereof, but each installment of interest
that would otherwise have been due and payable during such Extension Period shall bear Additional
Interest. 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



A-1-5 









 




Extension Period) to the extent that the Trust has funds available for the payment of such
distributions in the Property Account of the Trust. The Trust’s funds available for Distribution to
the Holders of the Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the Guarantor pursuant to
the Guarantee.




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



A-1-6 









 





ASSIGNMENT




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


 




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


 




 




     (Insert address and zip code of assignee) and irrevocably appoints



 





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



     Date:                                         



     Signature:                                         



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


Signature Guarantee:1






 




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




A-1-7 









 










EXHIBIT A-2




FORM OF COMMON SECURITY CERTIFICATE



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



     THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH SECTION 8.1 OF THE DECLARATION.



C-1          464




July 31, 2001



Certificate Evidencing Floating Rate Common Securities



of



Alliance Capital Partners Statutory Trust I



     Alliance Capital Partners Statutory Trust I, a statutory trust created under the laws of the
State of Connecticut (the “Trust”), hereby certifies that Alliance Capital Partners, L.P. (the
“Holder”) is the registered owner of common securities of the Trust representing undivided
beneficial interests in the assets of the Trust (the “Common Securities”). The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the Common Securities
represented hereby are issued pursuant to, and shall in all respects be subject to, the provisions
of the Amended and Restated Declaration of Trust of the Trust dated as of July 31, 2001, among
Robert M. Clements, Gary A. Meeks and Terence G. Vane, Jr., as Administrators, State Street Bank
and Trust Company of Connecticut, National Association, as Institutional Trustee, Alliance Capital
Partners, L.P. as Sponsor, and the holders from time to time of undivided beneficial interest in
the assets of the Trust including the designation of the terms of the Common Securities as set
forth in Annex I to such amended and restated declaration, as the same may be amended from time to
time (the “Declaration”). Capitalized terms used herein but not defined shall have the meaning
given them in the Declaration. The Holder is entitled to the benefits of the Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the Guarantee and the
Indenture to the Holder without charge upon written request to the Sponsor at its principal place
of business.



     As set forth in the Declaration, where an Event of Default has occurred and 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.



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



A-2-1 









 





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



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



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



	 	 	 	 	 
	 	ALLIANCE CAPITAL PARTNERS STATUTORY TRUST I

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	Administrator 	 
	 




A-2-2 









 





[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 an annual rate equal to 7.29% beginning on (and
including) the date of original issuance and ending on (but excluding) October 31, 2001 and at an
annual rate for each successive period beginning on (and including) October 31, 2001, and each
succeeding Distribution Payment Date, and ending on (but excluding) the next succeeding
Distribution Payment Date (each a “Distribution Period”), equal to 3-Month LIBOR, determined as
described below, plus 3.58%; provided, however, that prior to July 31, 2011, such
annual rate shall not exceed 12.50% (the “Coupon Rate”) applied to the stated liquidation amount of
$1,000.00 per Common Security, such rate being the rate of interest payable on the Debentures to be
held by the Institutional Trustee. Distributions in arrears for more than one period will bear
interest thereon compounded at the Distribution Rate (to the extent permitted by applicable law).
The term “Distributions” as used herein includes interest payments (including Additional Interest
and principal on the Debentures held by the Institutional Trustee) and any such compounded interest
payable on the Debentures unless otherwise stated. A Distribution is payable only to the extent
that payments are made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds available therefor. As used herein, “Determination Date”
means the date that is two London Banking Days (i.e., a day in which dealings in deposits in U.S.
dollars are transacted in the London interbank market) preceding the commencement of the relevant
Distribution Period. The amount of Distributions payable for any period will be computed for any
full quarterly Distribution period on the basis of the actual number of days in the Distribution
Period concerned divided by 360. In the event that any date on which a distribution is payable on
this Common Security is not a Business Day, then a payment of the distribution payable on such date
will be made on the next succeeding day which is a Business Day (and without any distribution or
other payment in respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date the payment was originally payable.
The amount of interest payable for the Distribution Period commencing October 31, 2001 and each
succeeding Distribution Period will be calculated by applying the Coupon Rate to the principal
amount outstanding at the commencement of the Distribution Period and multiplying each such amount
by the actual number of days in the Distribution Period concerned divided by 360.



     “3-Month LIBOR” as used herein, means the London interbank offered rate for three-month
Eurodollar deposits determined by the Debenture Trustee in the following order of priority: (i) the
rate (expressed as a percentage per annum) for Eurodollar deposits having a three-month maturity
that appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the particular Determination
Date (“Telerate Page 3750” means the display designated as “Page 3750” on the Dow Jones Telerate
Service or such other page as may replace Page 3750 on that service or such other service or
services as may be nominated by the British Bankers’ Association as the information vendor for the
purpose of displaying London interbank offered rates for U.S. dollars deposits); (ii) if such rate
does not appear on Telerate Page 3750 as of 11:00 a.m. (London time) on the Determination Date,
3-Month LIBOR will be the arithmetic mean of the rates (expressed as percentages per annum) for
Eurodollar deposits having a three-month maturity that appear on Reuters Monitor Money Rates Page
LIBO (“Reuters Page LIBO”) as of 11:00 a.m. (London time) on such Determination Date; (iii) if such
rate does not appear on



A-2-3 









 




Reuters Page LIBO as of 11:00 a.m. (London time) on the related Determination Date, the
Debenture Trustee will request the principal London offices of four leading banks in the London
interbank market to provide such banks’ offered quotations (expressed as percentages per annum) to
prime banks in the London interbank market for Eurodollar deposits having a three-month maturity as
of 11:00 a.m. (London time) on such Determination Date. If at least two quotations are provided,
3-Month LIBOR will be the arithmetic mean of such quotations; (iv) if fewer than two such
quotations are provided as requested in clause (iii) above, the Debenture Trustee will request four
major New York City banks to provide such banks’ offered quotations (expressed as percentages per
annum) to leading European banks for loans in Eurodollars as of 11:00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and (v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current Distribution Period. If the rate for
Eurodollar deposits having a three-month maturity that initially appears on Telerate Page 3750 or
Reuters Page LIBO, as the case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superseded on the Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate by 12:00 noon (London time) on such Determination Date, then the corrected rate as
so substituted on the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.




     The Coupon Rate for any Distribution Period will at no time be higher than the maximum rate
then permitted by New York law as the same may be modified by United States law.



     All percentages resulting from any calculations on the Common 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).



     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 October 31, January 31, April 30, and July 31 of each year, commencing on October 31, 2001. The
Debenture Issuer has the right under the Indenture to defer payments of interest on the Debentures
by extending the interest payment period for up to 20 consecutive quarterly periods (each an
“Extension Period”) on the Debentures, subject to the conditions described below, although such
interest would continue to accrue on the Debentures at an annual rate equal to the Distribution
Rate compounded quarterly to the extent permitted by law during any Extension Period. No Extension
Period may end on a date other than an Interest Payment Date. At the end of any such Extension
Period the Sponsor shall pay all interest then accrued and unpaid on the Debentures (together with
Additional Interest thereon); provided, however, that no Extension Period may
extend beyond the Maturity Date. Prior to the termination of any Extension Period, the Sponsor 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. Upon the termination of any Extension Period and upon the payment of all
accrued and unpaid interest and Additional Interest, the Sponsor may commence a new Extension
Period, subject to the foregoing requirements. No interest or Additional Interest shall be due and
payable during an Extension Period, except at the end



A-2-4 









 




thereof, but each installment of interest that would otherwise have been due and payable
during such Extension Period shall bear Additional Interest. 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 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 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



 




 





                                                                                                                                                                                         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:                                         




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



     Signature Guarantee2





 




			
	2	 	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 











 




EXHIBIT
B

FLOATING
RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE




     THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. 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
AND ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH
(A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL 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 (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAYBE OBTAINED FROM THE COMPANY.



     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 THE SECURITIES OR ANY INTEREST
THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR 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 THE SECURITIES 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.



     THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A LIQUIDATION AMOUNT
OF NOT LESS THAN $500,000.00 (500 SECURITIES) AND MULTIPLES OF $1,000.00 IN EXCESS THEREOF. ANY
ATTEMPTED TRANSFER OF SECURITIES IN A BLOCK HAVING A LIQUIDATION AMOUNT OF LESS THAN $500,000.00
SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.



     THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING RESTRICTIONS.



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



July 31, 2001




Floating Rate Junior Subordinated Deferrable Interest Debenture



of



Alliance Capital Partners, L.P.



     Alliance Capital Partners, L.P., a Delaware limited partnership (the “Company” which term
includes any successor Person under the Indenture hereinafter referred to), for value received
promises to pay to State Street Bank and Trust Company of Connecticut, National Association, not in
its individual capacity but solely as Institutional Trustee for Alliance Capital Partners Statutory
Trust I (the “Holder”) or registered assigns, the principal sum of Fifteen Million Four Hundred
Sixty Four Thousand Dollars ($15,464,000) on July 31, 2031, and to pay interest on said principal
sum from July 31, 2001, or from the most recent interest payment date (each such date, an “Interest
Payment Date”) to which interest has been paid or duly provided for, quarterly (subject to deferral
as set forth herein) in arrears on October 31, January 31, April 30, and July 31 of each year
commencing October 31, 2001, at an annual rate equal to 7.29% beginning on (and including) the date
of original issuance and ending on (but excluding) October 31,2001 and at an annual rate for each
successive period beginning on (and including) October 31, 2001, and each succeeding Interest
Payment Date, and ending on (but excluding) the next succeeding Interest Payment Date (each a
“Distribution Period”), equal to 3-Month LlBOR, determined as described below, plus 3.58%;
provided, however, that prior to July 31, 2011, such annual rate shall not exceed 12.50% (the
“Coupon Rate”) applied to the principal amount hereof, until the principal hereof is paid or duly
provided for or made available for payment, and on any overdue principal and (without duplication)
on any overdue installment of interest at the same rate per annum, compounded quarterly, from the
dates such amounts are due until they are paid or made available for payment. As used herein,
“Determination Date” means the date that is-two London Banking Days (i.e., a day in which dealings
in deposits in U.S. dollars are transacted in the London interbank market) preceding the
commencement of the relevant Distribution Period. The amount of interest payable for any period
will be computed on the basis of the actual number of days in the Distribution Period concerned
divided by 360. In the event that any date on which interest is payable on this Debenture is not a
Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with











2









 







the same force and effect as if made on the date the payment was originally payable. 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 Debenture (or one
or more Predecessor Securities) is registered at the close of business on the regular record date
for such interest installment, which shall be fifteen days prior to the day on which the relevant
Interest Payment Date occurs. Any such interest installment not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such regular record date and may be paid
to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a special record date.




     “3-Month LIBOR” as used herein, means the London interbank offered rate for three-month
Eurodollar deposits determined by the Trustee in the following order of priority: (i) the rate
(expressed as a percentage per annum) for Eurodollar deposits having a three-month maturity that
appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the particular Determination Date
(“Telerate Page 3750” means the display designated as “Page 3750” on the Dow Jones Telerate Service
or such other page as may replace Page 3750 on that service or such other service or services as
may be nominated by the British Bankers’ Association as the information vendor for the purpose of
displaying London interbank offered rates for U.S. dollars deposits); (ii) if such rate does not
appear on Telerate Page 3750 as of 11 :00 a.m. (London time) on the Determination Date, 3-Month LIB
OR will be the arithmetic mean of the rates (expressed as percentages per annum) for Eurodollar
deposits having a three-month maturity that appear on Reuters Monitor Money Rates Page LIBO
(“Reuters Page LIBO”) as of 11 :00 a.m. (London time) on such Determination Date; (iii) if such
rate does not appear on Reuters Page LIBO as of 11 :00 a.m. (London time) on the related
Determination Date, the Trustee will request the principal London offices of four leading banks in
the London interbank market to provide such banks’ offered quotations (expressed as percentages per
annum) to prime banks in the London interbank market for Eurodollar deposits having a three-month
maturity as of 11 :00 a.m. (London time) on such Determination Date. If at least two quotations are
provided, 3-Month LIBOR will be the arithmetic mean of such quotations; (iv) if fewer than two such
quotations are provided as requested in clause (iii) above, the Trustee will request four major New
York City banks to provide such banks’ offered quotations (expressed as percentages per annum) to
leading European banks for loans in Eurodollars as of 11 :00 a.m. (London time) on such
Determination Date. If at least two such quotations are provided, 3-Month LIBOR will be the
arithmetic mean of such quotations; and (v) if fewer than two such quotations are provided as
requested in clause (iv) above, 3-Month LIBOR will be a 3-Month LIBOR determined with respect to
the Distribution Period immediately preceding such current Distribution Period. If the rate for
Eurodollar deposits having a three-month maturity that initially appears on Telerate Page 3750 or
Reuters Page LIBO, as the case may be, as of 11:00 a.m. (London time) on the related Determination
Date is superseded on the Telerate Page 3750 or Reuters Page LIBO, as the case may be, by a
corrected rate by 12:00 noon (London time) on such Determination Date, then the corrected rate as
so substituted on the applicable page will be the applicable 3-Month LIBOR for such Determination
Date.



     The Coupon Rate for any Distribution Period will at no time be higher than the maximum rate
then permitted by New York law as the same may be modified by United States law.



     All percentages resulting from any calculations on the Debentures 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).



     The principal of and interest on this Debenture 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










3









 







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 by
check mailed to the registered holder at such address as shall appear in the Debenture Register if
a request for a wire transfer by such holder has not been received by the Company or by wire
transfer to an account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debenture is the Institutional Trustee, the payment of the
principal of and interest on this Debenture will be made in immediately available funds at such
place and to such account as may be designated by the Trustee.




     So long as no Event of Default has occurred and is continuing, the Company shall have the
right, from time to time, and without causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the Debentures at any time and from time
to time during the term of the Debentures, for up to 20 consecutive quarterly periods (each such
extended interest payment period, an “Extension Period”), during which Extension Period no interest
shall be due and payable. 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 interest then accrued and
unpaid on the Debentures (together with Additional Interest thereon); provided, however, that no
Extension Period may extend beyond the Maturity Date; provided further, however, that during any
such Extension Period, the Company shall not and shall not permit any Affiliate to (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 or such Affiliate’s capital stock (other than payments of
dividends or distributions to the Company) or make any guarantee payments with respect to the
foregoing or (ii) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company or any Affiliate that rank pari passu in
all respects with or junior in interest to the Debentures (other than, with respect to clauses (i)
and (ii) above, (a) repurchases, redemptions or other acquisitions of shares of capital stock of
the Company in connection with any employment contract, benefit plan or other similar arrangement
with or for the benefit of one or more employees, officers, directors or consultants, in connection
with a dividend reinvestment or stockholder stock purchase plan or in connection with the issuance
of capital stock of the Company (or securities convertible into or exercisable for such capital
stock) as consideration in an acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of any exchange or conversion of any class or series of the
Company’s capital stock (or any capital stock of a subsidiary of the Company) for any class or
series of the Company’s capital stock or of any class or series of the Company’s 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,
(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 and any
cash payments in lieu of fractional shares issued in connection therewith, or (f) payments under
the Capital Securities Guarantee). 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. Upon the termination of any Extension Period and upon the
payment of all accrued and unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest or Additional Interest shall
be due and payable during an Extension Period, except at the end thereof, but each installment of
interest that would otherwise have been due and payable during such Extension Period shall bear
Additional Interest. The Company must give the Trustee notice of its election to begin such
Extension Period at least 5 Business Days prior to the earlier of (i) the date interest on the
Debentures would have been payable except for the election to begin such Extension










4









 







Period or (ii) the date such interest is payable, but in any event not less than 5 Business
Days prior to such record date.




     The indebtedness evidenced by this Debenture 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 Debenture is issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take such action as may
be necessary or appropriate to acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions.



     This Debenture shall not be entitled to any benefit under the Indenture hereinafter referred
to, be valid or become obligatory for any purpose until the certificate of authentication hereon
shall have been signed by or on behalf of the Trustee.



     Capitalized terms used and not defined in this Debenture shall have the meanings assigned in
the Indenture dated as of the date of this Debenture between the Trustee and the Company.



Signatures appear on the following pages











5









 







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




	 	 	 	 	 
	 	ALLIANCE CAPITAL PARTNERS, L.P.

 	 
	 	By:  	 	 
	 	Name:  		 
	 	Title:  	

	 
	 	Title:  	
Alliance Capital Partners,
Inc., 


sole general partner 	 
	 







6









 





CERTIFICATE OF AUTHENTICATION



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




	 	 	 	 	 
	 	State Street Bank and Trust Company of Connecticut,

National Association, as the Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 







 













 




EXHIBIT C




ALLIANCE CAPITAL PARTNERS, L.P.




15,000 Capital Securities



Floating Rate Capital Securities

(Liquidation Amount $1,000.00 per Capital Security)



PLACEMENT AGREEMENT




 



July 20, 2001




First Tennessee Capital Markets

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117




Keefe, Bruyette & Woods, Inc.

Two World Trade Center

New York, New York 10048





	Ladies and Gentlemen:





     Alliance Capital Partners, L.P., a Delaware limited partnership (the “Company”), and its
financing subsidiary, Alliance Capital Partners Statutory Trust I, a Connecticut statutory trust
(the “Trust,” and hereinafter together with the Company, the “Offerors”), hereby confirm their
agreement with you as placement agents (the “Placement Agents”), as follows:



Section 1. Issuance and Sale of Securities.




     1.1. Introduction. The Offerors propose to issue and sell at the Closing (as defined
in Section 2.3.1 hereof) 15,000 of the Trust’s Floating Rate Capital Securities, with a liquidation
amount of $1,000.00 per capital security (the “Capital Securities”), to Preferred Term Securities
ill, Ltd., a company with limited liability established under the laws of the Cayman Islands (the
“Purchaser”) pursuant to the terms of a Subscription Agreement entered into, or to be entered into
on or prior to the Closing Date, between the Offerors and the Purchaser (the “Subscription
Agreement”), the form of which is attached hereto as Exhibit A and incorporated herein by this
reference.



     1.2. Operative Agreements. The Capital Securities shall be fully and unconditionally
guaranteed on a subordinated basis by the Company with respect to distributions and amounts payable
upon liquidation, redemption or repayment (the “Guarantee”) pursuant and subject to the Guarantee
Agreement (the “Guarantee Agreement”), to be dated as of the Closing Date and executed and
delivered by the Company and State Street Bank and Trust Company of Connecticut, National
Association (“State Street”), as trustee (the “Guarantee Trustee”), for the benefit from time to
time of the holders of the Capital Securities. The entire proceeds from the sale by the Trust to
the holders of the Capital Securities shall be combined with the entire proceeds from the sale by
the Trust to the Company of its common securities (the “Common Securities”), and shall be used by
the Trust to purchase $15,464,000 in principal



 









 





amount of the Floating Rate Junior Subordinated Deferrable Interest Debentures (the “Debentures”)
of the Company. The Capital Securities and the Common Securities for the Trust shall be issued
pursuant to an Amended and Restated Declaration of Trust among State Street, as institutional
trustee (the “Institutional Trustee”), the Administrators named therein, and the Company, to be
dated as of the Closing Date and in substantially the form heretofore delivered to the Placement
Agents (the “Trust Agreement”). The Debentures shall be issued pursuant to an Indenture (the
“Indenture”), to be dated as of the Closing Date, between the Company and State Street, as
indenture trustee (the “Indenture Trustee”). The documents identified in this Section 1.2 and in
Section 1.1 are referred to herein as the “Operative Documents.”




     1.3. Rights of Purchaser. The Capital Securities shall be offered and sold by the
Trust directly to the Purchaser without registration of any of the Capital Securities, the
Debentures or the Guarantee under the Securities Act of 1933, as amended (the “Securities Act”), or
any other applicable securities laws in reliance upon exemptions from the registration requirements
of the Securities Act and other applicable securities laws. The Offerors agree that this Agreement
shall be incorporated by reference into the Subscription Agreement
and the Purchaser shall be
entitled to each of the benefits of the Placement Agents and the Purchaser under this Agreement and
shall be entitled to enforce obligations of the Offerors under this Agreement as fully as if the
Purchaser were a party to this Agreement. The Offerors and the Placement Agents have entered into
this Agreement to set forth their understanding as to their relationship and their respective
rights, duties and obligations.



     1.4. Legends. Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the Capital Securities and
Debentures certificates shall each contain a legend as required pursuant to any of the Operative
Documents.



Section 2. Purchase of Capital Securities.




     2.1. Exclusive Rights; Purchase Price. From the date hereof until the Closing Date
(which date may be extended by mutual agreement of the Offerors and the Placement Agents), the
Offerors hereby grant to the Placement Agents the exclusive right to arrange for the sale of the
Capital Securities to the Purchaser at a purchase price of$1,000.00 per Capital Security.



     2.2. Subscription Agreement. The Offerors hereby agree to evidence their acceptance of
the subscription by countersigning a copy of the Subscription Agreement and returning the same to
the Placement Agents.



     2.3. Closing and Delivery of Payment.



          2.3.1. Closing; Closing Date. The sale and purchase of the Capital Securities by the
Offerors to the Purchaser shall take place at a closing (the “Closing”) at the offices of Lewis,
Rice & Fingersh, L.C., at 10:00 a.m. (St. Louis time) on July 31, 2001, or such other business day
as may be agreed upon by the Offerors and the Placement Agents (the “Closing Date”);
provided, however, that in no event shall the Closing Date occur later than August
7, 2001 unless consented to by the Purchaser. Payment by the Purchaser shall be payable in the
manner set forth in the Subscription Agreement and shall be made prior to or on the Closing Date.




          2.3.2. Delivery. The certificate for the Capital Securities shall be in definitive
form, registered in the name of the Purchaser and in the aggregate amount of the Capital Securities
purchased by the Purchaser.




          2.3.3. Transfer Agent. The Offerors shall deposit the certificate representing the
Capital Securities with the Institutional Trustee or other appropriate party prior to the Closing
Date.






2









 








     2.4. Placement Agents’ Fees and Expenses.



          2.4.1. Placement Agents’ Compensation. Because the proceeds from the sale of the
Capital Securities shall be used to purchase the Debentures from the Company, the Company shall pay
an aggregate of $30.00 for each $1,000.00 of principal amount of Debentures sold to the Trust
(excluding the Debentures related to the Common Securities purchased by the Company). Of this
amount, $15.00 for each $1,000.00 of principal amount of Debentures shall be payable to First
Tennessee Capital Markets and $15.00 for each $1,000.00 of principal amount of Debentures shall be
payable to Keefe, Bruyette & Woods, Inc. Such amount shall be delivered to the Trustee or such
other person designated by the Placement Agents on the Closing Date and shall be allocated between
and paid to the respective Placement Agents as directed by the Placement Agents.




          2.4.2.
Costs and Expenses. Whether or not this Agreement is terminated or the sale of
the Capital Securities is consummated, the Company hereby covenants and agrees that it shall payor
cause to be paid (directly or by reimbursement) all reasonable costs and expenses incident to the
performance of the obligations of the Offerors under this Agreement, including all fees, expenses
and disbursements of counsel and accountants for the Offerors; the reasonable costs and charges of
any trustee, transfer agent or registrar and the fees and disbursements of counsel to any trustee,
transfer agent or registrar attributable to the Debentures and the Capital Securities; all
reasonable expenses incurred by the Offerors incident to the preparation, execution and delivery of
the Trust Agreement, the Indenture, and the Guarantee; and all other reasonable costs and expenses
incident to the performance of the obligations of the Company hereunder and under the Trust
Agreement.




     2.5. Failure to Close. If any of the conditions to the Closing specified in this
Agreement shall not have been fulfilled to the satisfaction of the Placement Agents or if the
Closing shall not have occurred on or before 10:00 a.m. (St. Louis time) on August 7, 2001, then
each party hereto, notwithstanding anything to the contrary in this Agreement, shall be relieved of
all further obligations under this Agreement without thereby waiving any rights it may have by
reason of such nonfulfillment or failure; provided,
however, that the obligations of the parties
under Sections 2.4.2 and 9 shall not be so relieved and shall continue in full force and effect.



Section 3. Closing Conditions. The obligations of the Purchaser and the Placement
Agents on the Closing Date shall be subject to the accuracy, at and as of the Closing Date, of the
representations and warranties of the Offerors contained in this Agreement, to the accuracy, at and
as of the Closing Date, of the statements of the Offerors made in any certificates pursuant to this
Agreement, to the performance by the Offerors of their respective obligations under this Agreement,
to compliance, at and as of the Closing Date, by the Offerors with their respective agreements
herein contained, and to the following further conditions:



     3.1. Opinions of Counsel. On the Closing Date, the Placement Agents shall have
received the following favorable opinions, each dated as of the Closing Date: (a) from Terence G.
Vane, Jr., counsel for the Offerors and addressed to the Purchaser and the Placement Agents in
substantially the form set forth on Exhibit B-1 attached hereto and incorporated herein by
this reference, (b) from Bingham Dana LLP, special Connecticut counsel to the Offerors and
addressed to the Purchaser, the Placement Agents and the Offerors, in substantially the form set
forth on Exhibit B-2 attached hereto and incorporated herein by this reference and (c) from
Lewis, Rice & Fingersh, L.e., special tax counsel to the Offerors, and addressed to the Placement
Agents and the Offerors, in substantially the form set forth on Exhibit B-3 attached hereto
and incorporated herein by this reference, subject to the receipt by Lewis, Rice & Fingersh, L.C.
of a representation letter from the Company in the form set forth in Exhibit B-3 completed
in a manner reasonably satisfactory to Lewis, Rice & Fingersh, L.C. (collectively, the “Offerors’
Counsel Opinions”). In rendering the Offerors’ Counsel Opinions, counsel to the Offerors



3









 





may rely as to factual matters upon certificates or other documents furnished by officers,
directors and trustees of the Offerors (copies of which shall be delivered to the Placement Agents
and the Purchaser) and by government officials, and upon such other documents as counsel to the
Offerors may, in their reasonable opinion, deem appropriate as a basis for the Offerors’ Counsel
Opinions. Counsel to the Offerors may specify the jurisdictions in which they are admitted to
practice and that they are not admitted to practice..in any other jurisdiction and are not experts
in the law of any other jurisdiction. If the Offerors’ counsel is not admitted to practice in the
State of New York, the opinion of Offerors’ counsel may assume, for purposes of the opinion, that
the laws of the State of New York are identical, in all respects material to the opinion, to the
internal laws of the state in which such counsel is admitted to practice.




     3.2. Officer’s Certificate. At the Closing Date, the Purchaser and the Placement
Agents shall have received certificates from the Chief Executive Officer of the Company, dated as
of the Closing Date, stating that (i) the representations and warranties of the Offerors set forth
in Section 5 hereof are true and correct as of the <:;losing Date and that the Offerors have
complied with all agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date, (ii) since the date of this Agreement the Offerors have
not incurred any liability or obligation, direct or contingent, or entered into any material
transactions, other than in the ordinary course of business, which is material to the Offerors, and
(iii) covering such other matters as the Placement Agents may reasonably request.



     3.3. Administrator’s Certificate. At the Closing Date, the Purchaser and the Placement
Agents shall have received a certificate of one or more Administrators of the Trust, dated as of
the’ Closing Date, stating that the representations and warranties of the Trust set forth in
Section 5 are true and correct as of the Closing Date and that the Trust has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the
Closing Date.



     3.4.
Purchase Permitted by Applicable Laws; Legal Investment. The purchase of and
payment for the Capital Securities shall (a) not be prohibited by any applicable law or
governmental regulation, (b) not subject the Purchaser or the Placement Agents to any penalty or,
in the reasonable judgment of the Purchaser and the Placement Agents, other onerous condition under
or pursuant to any applicable law or governmental regulation, and (c) be permitted by the laws and
regulations of the jurisdictions to which the Purchaser and the Placement Agents are subject.



     3.5. Consents and Permits. The Company and the Trust shall have received all consents,
permits and other authorizations, and made all such filings and declarations, as may be required
from any person or entity pursuant to any law, statute, regulation or rule (federal, state, local
and foreign), or pursuant to any agreement, order or decree to which the Company or the Trust is a
party or to which it is subject, in connection with the transactions contemplated by this
Agreement.



     3.6.
Sale of Purchaser Securities. The Purchaser shall have sold securities issued by
the Purchaser in an amount such that the net proceeds of such sale shall be (i) available on the
Closing Date and (ii) in an amount sufficient to purchase the Capital Securities and all other
capital securities contemplated in agreements similar to this Agreement and the Subscription
Agreement.



     3.7. Information. Prior to or on the Closing Date, the Offerors shall have furnished
to the Placement Agents such further information, certificates, opinions and documents addressed to
the Purchaser and the Placement Agents, which the Placement Agents may reasonably request,
including, without limitation, a complete set of the Operative Documents or any other documents or
certificates required by this Section 3; and all proceedings taken by the Offerors in connection
with the issuance, offer and sale of the Capital Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Placement Agents.



4









 





     If any condition specified in this Section 3 shall not have been fulfilled when and as required in
this Agreement, or if any of the opinions or certificates mentioned above or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the Placement Agents, this
Agreement may be terminated by the Placement Agents by notice to the Offerors at any time at or
prior to the Closing Date. Notice of such termination shall be given to the Offerors in writing or
by telephone or facsimile confirmed in writing.


Section 4. Conditions to the Offerors’ Obligations. The obligations of the Offerors to sell
the Capital Securities to the Purchaser and consummate the transactions contemplated by this
Agreement shall be subject to the accuracy, at and as of the Closing Date, of the representations
and warranties of the Placement Agents contained in this Agreement and to the following further
conditions:




     4.1. Executed Agreement. The Offerors shall have received from the Placement Agents an
executed copy of this Agreement.



     4.2. Fulfillment of Other Obligations. The Placement Agents shall have fulfilled all
of their other obligations and duties required to be fulfilled under this Agreement prior to or at
the Closing.



Section 5. Representations and Warranties of the Offerors. The Offerors jointly and
severally represent and warrant to the Placement Agents and the Purchaser as follows:



     5.1. Securities Law Matters.



          (a) Neither the Company nor the Trust, nor any of their “Affiliates” (as defined in Rule
501(b) of Regulation D under the Securities Act
(“Regulation D”)), nor any person acting on its or
their behalf has, directly or indirectly, made offers or sales of any security, or solicited offers
to buy any security, under circumstances that would require the registration of any of the Capital
Securities, the Guarantee and the Debentures or any other securities to be issued or which may be
issued by the Purchaser (collectively, the “Securities”) under the Securities Act.




          (b) Neither the Company nor the Trust, nor any of their Affiliates, nor any person acting on
its or their behalf has (i) other than the Placement Agents, offered for sale or solicited offers
to purchase the Securities, (ii) engaged or will engage, in any “directed selling efforts” within
the meaning of Regulation S under the Securities Act (“Regulation S”) with respect to the
Securities, or (iii) engaged in any form of offering, general solicitation or general advertising
(within the meaning of Regulation D) in connection with any offer or sale of any of the Securities.




          (c) The Securities satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act.




          (d) Neither the Company nor the Trust is an “investment company” or an entity “controlled” by
an “investment company,” in each case within the meaning of Section 3(a) of the Investment Company
Act of 1940, as amended (the “Investment Company Act”) without regard to Section 3(c) of the
Investment Company Act.




          (e) Neither the Company nor the Trust has paid or agreed to pay to any person or entity (other
than the Placement Agents) any compensation for soliciting another to purchase any of the
Securities.




     5.2. Organization, Standing and Qualification of the Trust. The Trust has been duly
created and is validly existing in good standing as a statutory trust under the Connecticut
Statutory Trust Act (the “Statutory Trust Act”) with the power and authority to own property and to
conduct the business



5









 




it transacts and proposes to transact and to enter into and perform its obligations under the
Operative Documents. The Trust is duly qualified to transact business as a foreign entity and is in
good standing in each jurisdiction in which such qualification is necessary, except where the
failure to so qualify or be in good standing would not have a material adverse effect on the Trust.
The Trust is not a party to or otherwise bound by any agreement other than the Operative Documents.
The Trust is and will, under current law, be classified for federal income tax purposes as a
grantor trust and not as an association taxable as a corporation.




     5.3. Trust Agreement. The Trust Agreement has been duly authorized by the Company and,
on the Closing Date, will have been duly executed and delivered by the Company and the
Administrators of the Trust, and, assuming due authorization, execution and delivery by the
Institutional Trustee, will be a valid and binding obligation of the Company and such
Administrators, enforceable against them in accordance with its terms, subject to (a) applicable
bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other laws
relating to or affecting creditors’ rights generally, and (b) general principles of equity
(regardless of whether considered and applied in a proceeding in equity or at law) (“Bankruptcy and
Equity”). Each of the Administrators of the Trust is an employee of the Company or a financial
institution subsidiary of the Company and has been duly authorized by the Company to execute and
deliver the Trust Agreement.



     5.4. Guarantee Agreement and the Indenture. Each of the Guarantee and the Indenture
has been duly authorized by the Company and, on the Closing Date will have been duly executed and
delivered by the Company, and, assuming due authorization, execution and delivery by the Guarantee’
Trustee, in the case of the Guarantee, and by the Indenture Trustee, in the case of the Indenture,
will be a valid and binding obligation of the Company enforceable against it in accordance with its
terms, subject to Bankruptcy and Equity.



     5.5. Capital Securities and Common Securities. The Capital Securities and the Common
Securities have been duly authorized by the Trust Agreement and, when issued and delivered against
payment therefor on the Closing Date to the Purchaser, in the case of the Capital Securities, and
to the Company, in the case of the Common Securities, will be validly issued and represent
undivided beneficial interests in the assets of the Trust. None of the Capital Securities or the
Common Securities is subject to preemptive or other similar rights. On the Closing Date, all of the
issued and outstanding Common Securities will be directly owned by the Company free and clear of
any pledge, security interest, claim, lien or other encumbrance.



     5.6. Debentures. The Debentures have been duly authorized by the Company and, at the
Closing Date, will have been duly executed and delivered to the Indenture Trustee for
authentication in accordance with the Indenture, and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor by the Trust, will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture enforceable against
the Company in accordance with their terms, subject to Bankruptcy and Equity.



     5.7. Power and Authority. This Agreement has been duly authorized, executed and
delivered by the Company and the Trust and constitutes the valid and binding obligation of the
Company and the Trust, enforceable against the Company and the Trust in accordance with its terms,
subject to Bankruptcy and Equity.



     5.8. No Defaults. The Trust is not in violation of the Trust Agreement or, to the
knowledge of the Administrators, any provision of the Statutory Trust Act. The execution, delivery
and performance by the Company or the Trust of the Operative Documents to which it is a party, and
the consummation of the transactions contemplated herein or therein, will not conflict with or
constitute a breach of, or a default under, or result in the creation or imposition of any lien,
charge or other encumbrance upon any



6









 




property or assets of the Trust, the Company or any of the Company’s subsidiaries pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Trust,
the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of any of them is subject, except for a conflict, breach,
default, lien, charge or encumbrance which could not reasonably be expected to have an adverse
effect on the consummation of the transactions contemplated herein or therein or an adverse effect
on the condition (financial or otherwise), earnings, affairs, business, prospects or results of
operations of the Company and its subsidiaries taken as whole, whether or not occurring in the
ordinary course of business (a “Material Adverse Effect”), nor will such action result in any
violation of the Trust Agreement or the Statutory Trust Act or require the consent, approval,
authorization or order of any court or governmental agency or body.




     5.9. Organization, Standing and Qualification of the Company and the General Partner.
The Company and Alliance Capital Partners, Inc. (the “General Partner”) have been duly organized
and incorporated, respectively, and are validly existing as a limited partnership and a
corporation, respectively, in good standing under the laws of the State of Delaware and the State
of          , respectively, with all requisite power and authority to own their respective properties
and conduct the business they transact and propose to transact, and are duly qualified to transact
business and are in good standing as a foreign entity and corporation, respectively, in each
jurisdiction where the nature of their respective activities require such qualification, except
where the failure of the Company or the General Partner to be so qualified would not, singly or in
the aggregate, have a Material Adverse Effect.



     5.10. Subsidiaries of the Company. Each of the Company’s significant subsidiaries (as
defined in Section 1-02 of Regulation S-X to the Securities Act (the “Significant Subsidiaries”))
is listed in Exhibit C attached hereto and incorporated herein by this reference. Each
Significant Subsidiary has been duly organized and is validly existing and in good standing under
the laws of the jurisdiction in which it is chartered or organized, with all requisite power and
authority to own its properties and conduct the business it transacts and proposes to transact, and
is duly qualified to transact business and is in good standing as a foreign entity in each
jurisdiction where the nature of its activities requires such qualification, except where the
failure of any such Significant Subsidiaries to be so qualified would not, singly or in the
aggregate, have a Material Adverse Effect.



     5.11. Permits. The Company and each of its Significant Subsidiaries have all requisite
power and authority, and all necessary material authorizations, approvals, orders, licenses,
certificates and permits of and from regulatory or governmental officials, bodies and tribunals, to
own or lease their respective properties and to conduct their respective businesses as now being
conducted, except such authorizations, approvals, orders, licenses, certificates and permits which,
if not obtained and maintained, would not have a Material Adverse Effect, and neither the Company
nor any of the Significant Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such authorizations, approvals, orders, licenses, certificates or
permits which, singly or in the aggregate, if the failure to be so licensed or approved is the
subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; and
the Company and its Significant Subsidiaries are in compliance with all applicable laws, rules,
regulations and orders and consents, the violation of which would have a Material Adverse Effect.



     5.12. Conflicts, Authorizations and Approvals. Except as previously disclosed to the
Placement Agents in writing, neither the Company nor any of the Significant Subsidiaries is in
violation of its respective charter or by-laws or similar organizational documents or in default in
the performance or observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument to
which either the Company or any of the Significant Subsidiaries is a party, or by which it or any
of them may be bound or to which any



7









 




of the property or assets of the Company or any of the Significant Subsidiaries is subject, the
effect of which violation or default in performance or observance would have a Material Adverse
Effect.




     5.13. Holding Company Registration and Deposit Insurance. The Company is duly
registered (i) as a bank holding company or financial holding company under the Bank Holding
Company Act of 1956, as amended, and the regulations of the Board of Governors of the Federal
Reserve System or (ii) as a savings and loan holding company under the Home Owners’ Loan Act of
1933, as amended, and the regulations of the Office of Thrift Supervision, and the deposit accounts
of the Company’s subsidiary depository institutions are insured by the Federal Deposit Insurance
Corporation (“FDIC”) to the fullest extent permitted by law and the rules and regulations of the
FDIC, and no proceedings for the termination of such insurance are pending or threatened.



     5.14. Financial Statements.



          (a) The consolidated balance sheets of the Company and all of its subsidiaries as of December
31, 2000 and December 31, 1999 and related consolidated income statements and statements of changes
in shareholders’ equity for the 3 years ended December 31, 2000 together with the notes thereto,
and the consolidated balance sheets of the Company and all of its subsidiaries as of March 31, 2001
and the related consolidated income statements and statements of changes in shareholders’ equity
for the 3 months then ended, copies of each of which have been provided to the Placement Agents
(together, the “Financial Statements”), have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be disclosed therein) and fairly
present in all material respects the financial position and the results of operations and changes
in shareholders’ equity of the Company and all of its subsidiaries as of the dates and for the
periods indicated (subject, in the case of interim financial statements, to normal recurring
year-end adjustments, none of which shall be material). The books and records of the Company and
all of its subsidiaries have been, and are being, maintained in all material respect in accordance
with generally accepted accounting principles and any other applicable legal and accounting
requirements and reflect only actual transactions.




          (b)
The Company’s report on H-(b)11 dated March 31, 2001,
(the “H-(b)11”) previously provided
to the Placement Agents is the most recent available such report and the information therein fairly
presents in all material respects the financial position of the Company and all of its
subsidiaries.




          (c) Since the respective dates of the Financial Statements and the H-(b) 11, there has been no
material adverse change or development with respect to the financial condition or earnings of the
Company and all of its subsidiaries, taken as a whole.




          (d) The accountants of the Company who certified the Financial Statements are independent
public accountants of the Company and its subsidiaries within the meaning of the Securities Act and
the rules and regulations thereunder.




     5.15. Regulatory Enforcement Matters. Except as previously disclosed to the Placement
Agents in writing, neither the Company, the General Partner nor any of the Company’s subsidiaries
is subject or is party to, or has received any notice or advice that any of them may become subject
or party to, any investigation with respect to, any cease-and-desist order, agreement, consent
agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order
with or by, or is a party to any commitment letter or similar undertaking to, or is subject to any
directive by, or has been since January 1, 1999, a recipient of any supervisory letter from, or
since January 1, 1999, has adopted any board resolutions at the request of, any Regulatory Agency
(as defined below) that currently restricts in any material respect the conduct of their business
or that in any material manner relates to their capital adequacy, their credit policies, their
management or their business (each, a “Regulatory Agreement”), nor



8









 




has the Company or any of its subsidiaries been advised since January I, 1999, by any Regulatory
Agency that it is considering issuing or requesting any such Regulatory Agreement. There is no
material unresolved violation, criticism or exception by any Regulatory Agency with respect to any
report or statement relating to any examinations of the Company or any of its subsidiaries. As used
herein, the term “Regulatory Agency” means any federal or state agency charged with the supervision
or regulation of depository institutions, bank, financial or savings and loan holding companies, or
engaged in the insurance of depository institution deposits, or any court, administrative agency or
commission or other governmental agency, authority or instrumentality having supervisory or
regulatory authority with respect to the Company or any of its Significant Subsidiaries.




     5.16. No Material Change. Except as previously disclosed to the Placement Agents in
writing, since December 31, 2000, there has been no material adverse change or development with
respect to the condition (financial or otherwise), earnings, affairs, business, prospects or
results of operations of the Offerors on a consolidated basis.



     5.17. No Undisclosed Liabilities. Neither the Company nor any of its subsidiaries has
any material liability, whether known or unknown, whether asserted or unasserted, whether absolute
or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or
to become due, including any liability for taxes (and there is no past or present fact, situation,
circumstance, condition or other basis for any present or future action, suit, proceeding, hearing,
charge, complaint, claim or demand against the Company or its subsidiaries giving rise to any such
liability), except (i) for liabilities set forth in the Financial Statements, (ii) normal
fluctuation in the amount of the liabilities · referred to in clause (i) above occurring in the
ordinary course of business of the Company and all of its subsidiaries since the date of the most
recent balance sheet included in the Financial Statements, and (iii) as may be specifically
disclosed in writing to the Placement Agents.



     5.18. Litigation. Except as previously disclosed to the Placement Agents in writing,
no charge, investigation, action, suit or proceeding is pending or, to the knowledge of the
Offerors or the General Partner, threatened, against or affecting the Offerors, the General Partner
or any of their respective properties before or by any courts or any regulatory, administrative or
governmental official, commission, board, agency or other authority or body, or any arbitrator,
wherein an unfavorable decision, ruling or finding could have a Material Adverse Effect or an
adverse effect on the consummation of this Agreement or the transactions contemplated herein.



     5.19. Deferral of Interest Payments on Debentures. The Company has no present
intention to exercise its option to defer payments of interest on the Debentures as provided in the
Indenture. The Company believes that the likelihood that it would exercise its right to defer
payments of interest on the Debentures as provided in the Indenture at any time during which the
Debentures 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, acquire
or make a liquidation payment with respect to, any of the Company’s partnership units and on the
Company’s ability to make any payments of principal, interest or premium on, or repay, repurchase
or redeem, any of its debt securities that rank pari passu in all respects with, or junior in
interest to, the Debentures.


Section 6. Representations and Warranties of the Placement Agents. Each Placement
Agent represents and warrants to the Offerors as to itself (but not as to the other Placement
Agent) as follows:




     6.1. Organization, Standing and Qualification.



          (a) First Tennessee Capital Markets is a division of First Tennessee Bank, N.A., a national
banking association duly organized, validly existing and in good standing under the laws of the
United States, with full power and authority to own, lease and operate its properties and conduct
its






9









 







business as currently being conducted. First Tennessee Capital Markets is duly qualified to
transact business as a foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property or conducts its business so as to require such qualification and
in which the failure to so qualify would, individually or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business, prospects or results of
operations of First Tennessee Capital Markets.




          (b) Keefe, Bruyette & Woods, Inc. is a corporation, validly existing and in good standing
under the laws of the State of New York, with full power and authority to own, lease and operate
its properties and conduct its business as currently being conducted. Keefe, Bruyette & Woods, Inc.
is duly qualified to transact business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property or conducts its business so as to require
such qualification and in which the failure to so qualify would, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise), earnings, business,
prospects or results of operations of Keefe, Bruyette & Woods, Inc.




     6.2. Power and Authority. The Placement Agent has all requisite power and authority to
enter into this Agreement, and this Agreement has been duly and validly authorized, executed and
delivered by the Placement Agent and constitutes the legal, valid and binding agreement of the
Placement Agent, enforceable against the Placement Agent in accordance with its terms, except as
the enforcement thereof may be limited by general principles of equity and by bankruptcy or other
laws relating to or affecting creditors’ rights generally and except as any indemnification or
contribution provisions thereof may be limited under applicable securities laws.



     6.3. General Solicitation. In the case of the offer and sale of the Capital
Securities, no form of general solicitation or general advertising was used by the Placement Agent
or its representatives including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine or similar medium or broadcast over television
or radio or any seminar or meeting whose attendees have been invited by any general solicitation or
general advertising. Neither the Placement Agent nor its representatives have engaged or will
engage in any “directed selling efforts” within the meaning of Regulation S with respect to the
Capital Securities.



     6.4. Purchaser. The Placement Agent has made such reasonable inquiry as is necessary
to determine that the Purchaser is acquiring the Capital Securities for its own account, that the
Purchaser does not intend to distribute the Capital Securities in contravention of the Securities
Act or any other applicable securities laws, and that the Purchaser is not a “U.S. person” as that
term is defined under Rule 902 of the Securities Act.



     6.5. Qualified Purchasers. The Placement Agent has not offered or sold and will not
arrange for the offer or sale of the Capital Securities except (i) in an offshore transaction
complying with Rule 903 of Regulation S, or (ii) to those the Placement Agent reasonably believes
are “accredited investors” (as defined in Rule 501 of Regulation D), or (iii) in any other manner
that does not require registration of the Capital Securities under the Securities Act. In
connection with each such sale, the Placement Agent has taken or will take reasonable steps to
ensure that the Purchaser is aware that such sale is being made in reliance on an exemption under
the Securities Act.



     6.6. Offering Circulars. Neither the Placement Agent nor its representatives will
include any non-public information about the Company, the Trust or any of their affiliates in any
registration statement, prospectus, offering circular or private placement memorandum used in
connection with any purchase of Capital Securities without the prior written consent of the Trust
and the Company.


Section 7. Covenants of the Offerors. The Offerors covenant and agree with the Placement
Agents and the Purchaser as follows:






10









 








     7.1. Compliance with Representations and Warranties. During the period from the date
of this Agreement to the Closing Date, the Offerors shall use their best efforts and take all
action necessary or appropriate to cause their representations and warranties contained in Section
5 hereof to be true as of the Closing Date, after giving effect to the transactions contemplated by
this Agreement, as if made on and as of the Closing Date.



     7.2. Sale and Registration of Securities. The Offerors and their Affiliates shall not
nor shall any of them permit any person acting on their behalf (other than the Placement Agents),
to directly or indirectly (i) sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect of any security (as defined in the Securities Act) that would or could be integrated
with the sale of the Capital Securities in a manner that would require the registration under the
Securities Act of the Capital Securities, the Debentures or the Guarantee or (ii) make offers or
sales of any such security, or solicit offers to buy any such security, under circumstances that
would require the registration of any of such securities under the Securities Act.



     7.3. Use of Proceeds. The Trust shall use the proceeds from the sale of the Capital
Securities to purchase the Debentures from the Company.



     7.4. Investment Company. The Offerors shall not engage, or permit any subsidiary to
engage, in any activity which would cause it or any subsidiary to be an “investment company” under
the provisions of the Investment Company Act.



     7.5. Reimbursement of Expenses. If the sale of the Capital Securities provided for
herein is not consummated because any condition set forth in Section 3 hereof is not satisfied, or
because of any refusal, inability or failure on the part of the Company or the Trust to perform any
agreement herein or comply with any provision hereof other than by reason of a breach by the
Placement Agents, the Company shall reimburse the Placement Agents upon demand for all of their pro
rata share of out-of-pocket expenses (including reasonable fees and disbursements of counsel) in an
amount not to exceed $50,000.00 that shall have been incurred by them in connection with the
proposed purchase and sale of the Capital Securities. Notwithstanding the foregoing, the Company
shall have no obligation to reimburse the Placement Agents for their out-of-pocket expenses if the
sale of the Capital Securities fails to occur because the condition set forth in Section 3.6 is not
satisfied or because either of the Placement Agents fails to fulfill a condition set forth in
Section 4.



     7.6. Directed Selling Efforts, Solicitation and Advertising. In connection with any
offer or sale of any of the Securities, the Offerors shall not, nor shall either of them permit any
of their Affiliates or any person acting on their behalf to, (other than the Placement Agents) (i)
engage in any “directed selling efforts” within the meaning of Regulation S, or (ii) engage in any
form of general solicitation or general advertising (as defined in Regulation D).



     7.7.
Compliance with Rule 144A(d)(4) under the Securities Act. So long as any of the
Securities are outstanding and are “restricted securities” within the meaning of Rule l44(a)(3)
under the Securities Act, the Offerors will, during any period in which they are not subject to and
in compliance · with Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or the Offerors are not exempt from such reporting requirements pursuant to and in
compliance with Rule 12g3-2(b) under the Exchange Act, provide to each holder of such restricted
securities and to each prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser, any information required to
be provided by Rule 144A(d)(4) under the Securities Act. This covenant is intended to be for the
benefit of the holders, and the prospective purchasers designated by such holders, from time to
time of such restricted securities. The information provided by the Offerors pursuant to this
Section 7.7 will not, at the date thereof, contain any untrue



11









 




statement of a material fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading.




     7.8. Quarterly Reports. Within 50 days of the end of each calendar year quarter and
within 100 days of the end of each calendar year during which the Debentures are issued and
outstanding, the Offerors shall submit to The Chase Manhattan Bank a completed quarterly report in
the form attached hereto as Exhibit D. The Offerors acknowledge and agree that The Chase Manhattan
Bank and its successors and assigns is a third party beneficiary of this Section 7.8


Section 8. Covenants of the Placement Agents. The Placement Agents covenant and agree
with the Offerors that, during the period from the date of this Agreement to the Closing Date, the
Placement Agents shall use their best efforts and take all action necessary or appropriate to cause
their representations and warranties contained in Section 6 to be true as of Closing Date, after
giving effect to the transactions contemplated by this Agreement, as if made on and as of the
Closing Date. The Placement Agents further covenant and agree not to engage in hedging transactions
with respect to the Capital Securities unless such transactions are conducted in compliance with
the Securities Act.



Section 9. Indemnification.




     9.1. Indemnification Obligation. The Offerors shall jointly and severally indemnify
and hold harmless the Placement Agents and the Purchaser and each of their respective agents,
employees, officers and directors and each person that controls either of the Placement Agents or
the Purchaser within’ the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and agents, employees, officers and directors or any such controlling person of either of the
Placement Agents or the Purchaser (each such person or entity, an “Indemnified Party”) from and
against any and all losses, claims, damages, judgments, liabilities or expenses, joint or several,
to which such Indemnified Party may become subject under the Securities Act, the Exchange Act or
other federal or state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written consent of the
Offerors), insofar as such losses, claims, damages, judgments, liabilities or expenses (or actions
in respect thereof) arise out of, or are based upon, or relate to, in whole or in part, (a) any
untrue statement or alleged untrue statement of a material fact contained in any information
(whether written or oral) or documents executed in favor of, furnished or made available to the
Placement Agents or the Purchaser by the Offerors, or (b) any omission or alleged omission to state
in any information (whether written or oral) or documents executed in favor of, furnished or made
available to the Placement Agents or the Purchaser by the Offerors a material fact required to be
stated therein or necessary to make the statements therein not misleading, and shall reimburse each
Indemnified Party for any legal and other expenses as such expenses are reasonably incurred by such
Indemnified Party in connection with investigating, defending, settling, compromising or paying any
such loss, claim, damage, judgments, liability, expense or action described in this Section 9.1. In
addition to their other obligations under this Section 9, the Offerors hereby agree that, as an
interim measure during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of, or based upon, or related to the matters described above in this Section
9.1, they shall reimburse each Indemnified Party on a quarterly basis for all reasonable legal or
other expenses incurred in connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the possibility that such payments might later be held to
have been improper by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, each Indemnified Party shall promptly
return such amounts to the Offerors together with interest, determined on the basis of the prime
rate (or other commercial lending rate for borrowers of the highest credit standing) announced from
time to time by First Tennessee Bank, N.A. (the “Prime Rate”). Any such interim reimbursement
payments which are not



12









 




made to an Indemnified Party within 30 days of a request for reimbursement, shall bear interest at
the Prime Rate from the date of such request.




     9.2. Conduct of Indemnification Proceedings. Promptly after receipt by an Indemnified
Party under this Section 9 of notice of the commencement of any action, such Indemnified Party
shall, if a claim in respect thereof is to be made against the Offerors under this Section 9,
notify the Offerors in writing of the commencement thereof; but the omission to so notify the
Offerors shall not relieve them from any liability which the Offerors may have to any Indemnified
Party. In case any such action is brought against any Indemnified Party and such Indemnified Party
seeks or intends to seek indemnity from the Offerors, the Offerors shall be entitled to participate
in, and, to the extent that they may wish, to assume the defense thereof with counsel reasonably
satisfactory to such Indemnified Party; provided, however, if the defendants in any
such action include both the Indemnified Party and the Offerors and the Indemnified Party shall
have reasonably concluded that there may be a conflict between the positions of the Offerors and
the Indemnified Party in conducting the defense of any such action or that there may be legal
defenses available to it and/or other Indemnified Parties which are different from or additional to
those available to the Offerors, the Indemnified Party shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party. Upon receipt of notice from the Offerors to such Indemnified
Party of their election to so assume the defense of such action and approval by the Indemnified
Party of counsel, the Offerors shall not be liable to such Indemnified Party under this Section 9
for any legal or other expenses subsequently incurred by such Indemnified Party in connection with
the defense thereof unless (i) the Indemnified Party shall have employed such counsel in connection
with the assumption of legal defenses in · accordance with the proviso in the preceding sentence (it
being understood, however, that the Offerors shall not be liable for the expenses of more than one
separate counsel representing the Indemnified Parties who are parties to such action), or (ii) the
Offerors shall not have employed counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party within a reasonable time after notice of commencement of the
action, in each of which cases the fees and expenses of counsel of such Indemnified Party shall be
at the expense of the Offerors.



     9.3. Contribution. If the indemnification provided for in this Section 9 is required
by its terms, but is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an Indemnified Party under Section 9.1 in respect of any losses, claims, damages,
liabilities or expenses referred to herein or therein, then the Offerors shall contribute to the
amount paid or payable by such Indemnified Party as a result of any losses, claims, damages,
judgments, liabilities or expenses referred to herein (i) in such proportion as is appropriate to
reflect the relative benefits received by the Offerors, on the one hand, and the Indemnified Party,
on the other hand, from the offering of such Capital Securities, or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Offerors and the Placement Agents in connection with the statements or omissions or
inaccuracies in the representations and warranties herein or other breaches which resulted in such
losses, claims, damages, judgments, liabilities or expenses, as well as any other relevant
equitable considerations. The respective relative benefits received by the Offerors, on the one
hand, and the Placement Agents, on the other hand, shall be deemed to be in the same proportion, in
the case of the Offerors, as the total price paid to the Offerors for the Capital Securities sold
by the Offerors to the Purchaser (net of the compensation paid to the Placement Agents hereunder,
but before deducting expenses), and in the case of the Placement Agents, as the compensation
received by them, bears to the total of such amounts paid to the Offerors and received by the
Placement Agents as compensation. The relative fault of the Offerors and the Placement Agents shall
be determined by reference to, among other things, whether the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission of a material fact or the
inaccurate or the alleged inaccurate representation and/or warranty relates to information supplied
by the Offerors or the Placement Agents and the parties’ relative intent, knowledge, access to



13









 




information and opportunity to correct or prevent such statement or omission. The provisions set
forth in Section 9.2 with respect to notice of commencement of any action shall apply if a claim
for contribution is made under this Section 9.3; provided, however, that no
additional notice shall be required with respect to any action for which notice has been given
under Section 9.2 for purposes of indemnification. The Offerors and the Placement Agents agree that
it would not be just and equitable if contribution pursuant to this Section 9.3 were determined by
pro rata allocation or by any other method of allocation that does not take account of the
equitable considerations referred to in this Section 9.3. The amount paid or payable by an
Indemnified Party, as a result of the losses, claims, damages, judgments, liabilities or expenses
referred to in this Section 9.3 shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party, in connection
with investigating or defending any such action or claim. In no event shall the liability of the
Placement Agents hereunder be greater in amount than the dollar amount of the compensation (net of
payment of all expenses) received by the Placement Agents upon the sale of the Capital Securities
giving rise to such obligation. No person found guilty of fraudulent misrepresentation (within the
meaning of Section ll(f) of the Securities Act) shall be entitled to contribution from any person
who was not found guilty of such fraudulent misrepresentation.




     9.4. Additional Remedies. The indemnity and contribution agreements contained in this
Section 9 are in addition to any liability that the Offerors may otherwise have to any Indemnified
Party.



     9.5. Additional Indemnification. The Company shall indemnify and hold harmless the
Trust against all loss, liability, claim, damage and expense whatsoever, as due from the Trust
under Sections 9.1 through 9.4 hereof.



Section 10. Rights and Responsibilities of Placement Agents.



     10.1. Reliance. In performing their duties under this Agreement, the Placement Agents
shall be entitled to rely upon any notice, signature or writing which they shall in good faith
believe to be genuine and to be signed or presented by a proper party or parties. The Placement
Agents may rely upon any opinions or certificates or other documents delivered by the Offerors or
their counselor designees to either the Placement Agents or the Purchaser.



     10.2. Rights of Placement Agents. In connection with the performance of their duties
under this Agreement, the Placement Agents shall not be liable for any error of judgment or any
action taken or omitted to be taken unless the Placement Agents were grossly negligent or engaged
in willful misconduct in connection with such performance or non-performance. No provision of this
Agreement shall require the Placement Agents to expend or risk their own funds or otherwise incur
any financial liability on behalf of the Purchaser in connection with the performance of any of
their duties hereunder. The Placement Agents shall be under no obligation to exercise any of the
rights or powers vested in them by this Agreement.


Section 11. Miscellaneous.




     11.1. Notices. Prior to the Closing, and thereafter with respect to matters pertaining
to this Agreement only, all notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier or overnight air
courier guaranteeing next day delivery:



14









 





     if to the Placement Agents, to:


First Tennessee Capital Markets

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117

Telecopier: (901) 435-4706

Telephone: (800) 456-5460

Attention: James D. Wingett



and



Keefe, Bruyette & Woods, Inc.

Two World Trade Center

New York, New York 10048

Telecopier: (212) 323-8404

Telephone: (800) 966-1559

Attention: Mitch Kleinman, Esq.




     with a copy to:


Lewis, Rice & Fingersh, L.C.

500 North Broadway, Suite 2000

St. Louis, Missouri 63102

Telecopier: (314) 241-6056

Telephone: (314) 444-7600

Attention: Thomas C. Erb, Esq.



and



Sidley Austin Brown & Wood LLP

One World Trade Center

New York, New York 10048

Telecopier: (212) 839-5599

Telephone: (212) 839-5300

Attention: Renwick Martin, Esq.




     if to the Offerors, to:


Alliance Capital Partners, Inc.

8\00 Nations Way

Jacksonville, Florida 32256

Telecopier: (904) 281-6443

Telephone: (904) 332-6204

Attn: Robert M. Clements, President and CEO






15









 








     with a copy to:


Alliance Capital Partners, Inc.

8100 Nations Way

Jacksonville, Florida 32256

Telecopier: (904) 281-6443

Telephone: (904) 332-7604

Attn: Terence G. Vane, Jr., Secretary




     All such notices and communications shall be deemed to have been duly given (i) at the time
delivered by hand, if personally delivered, (ii) five business days after being deposited in the
mail, postage prepaid, if mailed, (iii) when answered back, if telexed, (iv) the next business day
after being telecopied, or (v) the next business day after timely delivery to a courier, if sent by
overnight air courier guaranteeing next day delivery. From and after the Closing, the foregoing
notice provisions shall be superseded by any notice provisions of the Operative Documents under
which notice is given. The Placement Agents, the Company, and their respective counsel, may change
their respective notice addresses from time to time by written notice to all of the foregoing
persons.



     11.2.
Parties in Interest, Successors and Assigns. Except as expressly set forth
herein, this Agreement is made solely for the benefit of the Placement Agents, the Purchaser and
the Offerors and any person controlling the Placement Agents, the Purchaser or the Offerors and
their respective successors and assigns; and no other person shall acquire or have any right under
or by virtue of this Agreement. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties.



     11.3. Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.



     11.4. Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.



     11.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (AND NOT THE LAWS PERTAINING TO CONFLICTS OF LAWS) OF THE STATE OF NEW YORK.



     11.6, Entire Agreement. This Agreement, together with the other Operative Documents
and the other documents delivered in connection with the transactions contemplated by this
Agreement, is intended by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and therein. This
Agreement, together with the other Operative Documents, supersedes all prior agreements and
understandings between the parties with respect to such subject matter.



     11.7. Severability. In the event that anyone or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected, it being intended that all of the Placement Agents’ and the Purchaser’s rights and
privileges shall be enforceable to the fullest extent permitted by law.



16









 





     11.8. Survival. The Placement Agents and the Offerors, respectively, agree that the
representations, warranties and agreements made by each of them in this Agreement and in any
certificate or other instrument delivered pursuant hereto shall remain in full force and effect and
shall survive the delivery of, and payment for, the Capital Securities.


signatures appear on the next page






17









 








     If this Agreement is satisfactory to you, please so indicate by signing the acceptance of this
Agreement and deliver such counterpart to the Offerors whereupon this Agreement will become binding
between us in accordance with its terms.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	Alliance Capital Partners, L.P.	 	 
	 
	 	 	 	 	 	 
	 	 	By: Alliance Capital Partners, Inc., sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	/s/ Robert M. Clements
 

Robert M. Clements, President and CEO
	 	 
	 
	 	 	 	 	 	 
	 	 	Alliance Capital Partners Statutory Trust I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gary A. Meeks
 

Gary A. Meeks, Administrator
	 	 






	 	 	 	 	 

	CONFIRMED AND ACCEPTED,

as of the date first set forth above	 	 
	 
	 	 	 	 
	FIRST TENNESSEE CAPITAL MARKETS,

a division of First Tennessee Bank, N.A.,

as a Placement Agent	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ James O. Wingett
 

JAMES O. WINGETT
	 	 
	Title:

	 	SENIOR VICE PRESIDENT	 	 
	 
	 	 	 	 
	KEEFE, BRUYETTE & WOODS, INC.

a New York corporation, as a Placement Agent	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Peter J. Wirth
 

PETER J. WIRTH
	 	 
	Title:

	 	MANAGING DIRECTOR	 	 







18











 





EXHIBIT A




FORM OF SUBSCRIPTION AGREEMENT



ALLIANCE CAPITAL PARTNERS STATUTORY TRUST I

ALLIANCE CAPITAL PARTNERS, L.P.



SUBSCRIPTION AGREEMENT



July 31, 2001



     THIS SUBSCRIPTION AGREEMENT (this “Agreement”) made among Alliance Capital Partners Statutory
Trust I (the “Trust”), a statutory trust created under the Connecticut Statutory Trust Act (Chapter
615 of Title 34 of the Connecticut General Statutes, Section 500, et seq.), Alliance Capital
Partners, L.P., a Delaware limited partnership, with its principal offices located at 8100 Nations
Way, Jacksonville, Florida 33256 (the “Company” and, collectively with the Trust, the “Offerors”),
and Preferred Term Securities ill, Ltd. (the “Purchaser”).



RECITALS:




     A. The Trust desires to issue 15,000 of its Floating Rate Capital Securities (the “Capital
Securities”), liquidation amount $1,000.00 per Capital Security, representing an undivided
beneficial interest in the assets of the Trust (the “Offering”), to be issued pursuant to an
Amended and Restated Declaration of Trust (the “Declaration”) by and among the Company, State
Street Bank and Trust Company of Connecticut, National Association (“State Street”), the
administrators named therein, and the holders (as defined therein), which Capital Securities are to
be guaranteed by the Company with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the terms of a Guarantee Agreement between the Company and
State Street, as trustee (the “Guarantee”); and



     B. The proceeds from the sale of the Capital Securities will be combined with the proceeds
from the sale by the Trust to the Company of its common securities, and will be used by the Trust
to purchase an equivalent amount of Floating Rate Junior Subordinated Deferrable Interest
Debentures of the Company (the “Debentures”) to be issued by the Company pursuant to an indenture
to be executed by the Company and State Street, as trustee (the “Indenture”); and



     C. In consideration of the premises and the mutual representations and covenants hereinafter
set forth, the parties hereto agree as follows:



ARTICLE I




PURCHASE AND SALE OF CAPITAL SECURITIES



     1.1. Upon the execution of this Subscription Agreement, the Purchaser hereby agrees to
purchase from the Trust 15,000 Capital Securities at a price equal to $1,000.00 per Capital
Security (the “Purchase Price”) and the Trust agrees to sell such Capital Securities to the
Purchaser for said Purchase Price. The rights and preferences of the Capital Securities are set
forth in the Declaration. The Purchase Price is payable in immediately available funds on July 31,
2001, or such other business day as may be



A-1









 




designated by the Purchaser, but in no event later than August 7, 2001 (the “Closing Date”).
The Offerors shall provide the Purchaser wire transfer instructions no later than I day following
the date hereof.




     1.2. The certificate for the Capital Securities shall be delivered by the Trust on the Closing
Date to the Purchaser or its designee.



     1.3. The Placement Agreement, dated July 20,2001 (the “Placement Agreement”), among the
Offerors and the Placement Agents identified therein includes certain representations and
warranties, covenants and conditions to closing and certain other matters governing the Offering.
The Placement Agreement is hereby incorporated by reference into this Agreement and the Purchaser
shall be entitled to each of the benefits of the Placement Agents and the Purchaser under the
Placement Agreement and shall be entitled to enforce the obligations of the Offerors under such
Placement Agreement as fully as if the Purchaser were a party to such Placement Agreement.



ARTICLE II




REPRESENTATIONS AND WARRANTIES OF PURCHASER



     2.1. The Purchaser understands and acknowledges that neither the Capital Securities, the
Debentures nor the Guarantee have been registered under the Securities Act of 1933, as amended (the
“Securities Act”), or any other applicable securities law, are being offered for sale by the Trust
in transactions not requiring registration under the Securities Act, and may not be offered, sold,
pledged or. otherwise transferred by the Purchaser except in compliance with the registration
requirements of the Securities Act or any other applicable securities laws, pursuant to an
exemption therefrom or in a transaction not subject thereto.



     2.2. The Purchaser represents, warrants and certifies that (i) it is not a “U.S. person” as
such term is defined in Rule 902 under the Securities Act, (ii) it is not acquiring the Capital
Securities for the account or benefit of any such U.S. person, (iii) the offer and sale of Capital
Securities to the Purchaser constitutes an “offshore transaction” under Regulation S of the
Securities Act, and (iv) it will not engage in hedging transactions with regard to the Capital
Securities unless such transactions are conducted in compliance with the Securities Act.



     2.3. The Purchaser represents and warrants that it is purchasing the Capital Securities for
its own account, for investment, and not with a view to, or for offer or sale in connection with,
any distribution thereof in violation of the Securities Act or other applicable securities laws,
subject to any requirement of law that the disposition of its property be at all times within its
control and subject to its ability to resell such Capital Securities pursuant to an effective
registration statement under the Securities Act or under Rule 144A or any other exemption from
registration available under the Securities Act or any other applicable Securities law.



     2.4. The Purchaser has full power and authority to execute and deliver this Agreement, to make
the representations and warranties specified herein, and to consummate the transactions
contemplated herein and it has full right and power to subscribe for Capital Securities and perform
its obligations pursuant to this Agreement.



     2.5. The Purchaser is a Cayman Islands Company whose business includes issuance of certain
notes and acquiring the Capital Securities and it has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of purchasing the
Capital Securities and it is aware that it may be required to bear the economic risk of an
investment in the Capital Securities.



A-2









 





ARTICLE III




MISCELLANEOUS



     3.1. Any notice or other communication given hereunder shall be deemed sufficient if in
writing and sent by registered or certified mail, return receipt requested, international courier
or delivered by hand against written receipt therefor, or by facsimile transmission and confirmed
by telephone, to the following addresses, or such other address as may be furnished to the other
parties as herein provided:




			
	          To the Offerors:	 	Alliance Capital Partners, Inc.

8100 Nations Way

Jacksonville, Florida 32256

Attention: Robert M. Clements

Fax: (904) 281-6443






			
	          To the Purchaser:	 	Preferred Term Securities III, Ltd.

c/o QSPV, Limited

P.O. Box 1093 GT

Queensgate House

South Church Street

George Town, Grand Cayman

Grand Cayman Islands, British West Indies

Attention: The Directors/603484 
Fax: (345) 945-7100





          Unless otherwise expressly provided herein, notices shall be deemed to have been given on the
date of mailing, except notice of change of address, which shall be deemed to have been given when
received.




     3.2. This Agreement shall not be changed, modified or amended except by a writing signed by
the parties to be charged, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to be charged.



     3.3. Upon the execution and delivery of this Agreement by the Purchaser, this Agreement shall
become a binding obligation of the Purchaser with respect to the purchase of Capital Securities as
herein provided.



     3.4. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES
HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.



     3.5. The parties agree to execute and deliver all such further documents, agreements and
instruments and take such other and further action as may be necessary or appropriate to carry out
the purposes and intent of this Agreement.



     3.6. This Agreement may be executed in one or more counterparts each of which shall be deemed
an original, but all of which shall together constitute one and the same instrument.



Signatures appear on the following page




A-3









 







     IN WITNESS WHEREOF, I have set my hand the day and year first written above.



PREFERRED TERM SECURITIES III, LTD.




	 	 	 	 	 

	By:
	 	 	 	 
	 

	 	 

	 	 
	Print Name:
	 	 	 	 
	 

	 	 

	 	 
	Title:
	 	 	 	 
	 

	 	 

	 	 






     IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted as of the day and
year first written above.



	 	 	 	 	 	 	 

	 	 	ALLIANCE CAPITAL PARTNERS, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	ALLIANCE
CAPITAL PARTNERS STATUTORY TRUST I	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	Title: Administrator	 	 






A-4









 





EXHIBIT B-1




FORM OF COMPANY COUNSEL OPINION



July 31, 2001



	 	 	 

	Preferred Term Securities III, Ltd.

	 	First Tennessee Capital Markets
	P. O. Box 1093 GT

	 	845 Crossover Lane, Suite 150
	Queensgate House

	 	Memphis, Tennessee 38117
	South Church Street
	 	 
	George Town, Grand Cayman

	 	Keefe, Bruyette & Woods, Inc.
	Grand Cayman Islands

	 	Two World Trade Center
	British West Indies

	 	New York, New York 10048






Ladies and Gentlemen:




     We have acted as counsel to Alliance Capital Partners, L.P. (the “Company”), a Delaware
limited partnership in connection with a certain Placement Agreement, dated July 20, 2001, (the
“Placement Agreement”), between the Company and Alliance Capital Partners Statutory Trust I (the
“Trust”), on one hand, and First Tennessee Capital Markets and Keefe, Bruyette & Woods, Inc. (the
“Placement Agents”), on the other hand. Pursuant to the Placement Agreement, and subject to the
terms and conditions stated therein, the Trust will issue and sell to Preferred Term Securities
III, Ltd. (the “Purchaser”), $15,000,000 aggregate principal amount of Floating Rate Capital
Securities (liquidation amount $1,000.00 per capital security) (the “Capital Securities”).



     Capitalized terms used herein and not otherwise defined shall have the same meaning ascribed
to them in the Placement Agreement



     The law covered by the opinions expressed herein is limited to the law of the United States of
America and of the State of Delaware



     We have made such investigations of law as, in our judgment, were necessary to render the
following opinions. We have also reviewed (a) the Company’s Articles of Incorporation, as amended,
and its By-Laws, as amended; and (b) such partnership documents, records, information and
certificates of the Company and its subsidiaries, certificates of public officials or government
authorities and other documents as we have deemed necessary or appropriate as a basis for the
opinions hereinafter expressed. As to certain facts material to our opinions, we have relied, with
your permission, upon statements, certificates or representations, including those delivered or
made in connection with the above-referenced transaction, of officers and other representatives of
the Company and its subsidiaries and the Trust.



     Based upon and subject to the foregoing and the further qualifications set forth below, we are
of the opinion as of the date hereof that:



     I. The Company has been duly organized and is validly existing under the laws of the State of
Delaware and is duly registered as a bank holding company under the Bank Holding Company Act of
1956, as amended or as a savings and loan holding company under the Home Owners’ Loan Act of 1933,
as amended. Each of the Significant Subsidiaries is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Each of the Company and the
Significant Subsidiaries has full power and authority to own or lease its properties and to conduct
its business as such business is



B-1-1 









 







currently conducted in all material respects. To the best of our knowledge, all outstanding shares
of capital stock of the Significant Subsidiaries have been duly authorized and validly issued, and
are fully paid and nonassessable except to the extent such shares may be deemed assessable under 12
U.S.C. Section 18310 or 12 U.S.C. Section 55.



     2. The issuance, sale and delivery of the Debentures in accordance with the terms and
conditions of the Placement Agreement and the Operative Documents has been duly authorized by all
necessary actions of the Company. Other than for outstanding stock options and warrants issued by
the Company with respect to shares of common stock of the Company, there are no preemptive or other
rights to subscribe for or to purchase any shares of capital stock or equity securities of the
Company or the Significant Subsidiaries pursuant to the Articles of Incorporation or Charter,
By-Laws or other governing documents of the Company or the Significant Subsidiaries, or, to the
best of our knowledge, any agreement or other instrument to which either Company or the
Subsidiaries is a party or by which the Company or the Significant Subsidiaries may be bound.



     3. The Company has all requisite power to enter into and perform its obligations
under the
Placement Agreement and the Subscription Agreement, and the Placement Agreement and the
Subscription Agreement have been duly and validly authorized, executed and delivered by the Company
and constitute the legal, valid and binding obligations of the Company enforceable in accordance
with their terms, except as the enforcement thereof may be limited by general principles of equity
and by bankruptcy or other laws affecting creditors’ rights generally, and except as the
indemnification and contribution provisions thereof may be limited under applicable laws and
certain remedies may not be · available in the case of a non-material breach.



     4. Each of the Indenture, the Trust Agreement and the Guarantee Agreement has been duly
authorized, executed and delivered by the Company, and is a valid and legally binding obligation of
the Company enforceable in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, receivership, moratorium and other laws affecting the rights and
remedies of creditors generally and of general principles of equity.



     5. The Debentures have been duly authorized, executed and delivered by the Company, are
entitled to the benefits of the Indenture and are legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other laws affecting the
rights and remedies of creditors generally and of general principles of equity.



     6. Neither the Company, the Trust, nor any other subsidiaries of the Company is in breach or
violation of, or default under, with or without notice or lapse of time or both, its articles of
Incorporation or Charter, By-Laws or other governing documents (including without limitation, the
Trust Agreement). The execution, delivery and performance of the Placement Agreement and the
Operative Documents and the consummation of the transactions contemplated by the Placement
Agreement and the Operative Documents do not and will not conflict with, result in the creation or
imposition of any material lien, claim, charge, encumbrance or restriction upon any property or
assets of the Company or its subsidiaries pursuant to, or constitute a material breach or violation
of, or constitute a material default under, with or without notice or lapse of time or both, any of
the terms, provisions or conditions of the Articles of Incorporation or Charter, By-Laws or other
governing documents of the Company or its subsidiaries, or to the best of our knowledge, any
material contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease,
franchise, license or any other agreement or instrument to which the Company or its subsidiaries is
a party or by which any of them or any of their respective properties may be bound or any order,
decree, judgment, franchise, license, permit, rule or regulation of any court,



B-1-2 









 




arbitrator, government, or governmental agency or instrumentality, domestic or foreign, known
to us having jurisdiction over the Company or its subsidiaries or any of their respective
properties which, in each case, is material to the Company and its subsidiaries on a consolidated
basis.




     7. Except for filings, registrations or qualifications that may be required by applicable
securities laws, no authorization, approval, consent or order of, or filing, registration or
qualification with, any person (including, without limitation, any court, governmental body or
authority) is required under the laws of the State of Delaware in connection with the transactions
contemplated by the Placement Agreement and the Operative Documents in connection with the offer
and sale of the Capital Securities as contemplated by the Placement Agreement and the Operative
Documents.



     8. To the best of our knowledge (i) no action, suit or proceeding at law or in equity is
pending or threatened to which the Offerors or its subsidiaries is or may be a party, and (ii) no
action, suit or proceeding is pending or threatened against or affecting the Offerors or its
subsidiaries or any of their properties, before or by any court or governmental official,
commission, board or other administrative agency, authority or body, or any arbitrator, wherein an
unfavorable decision, finding or ruling could reasonably be expected to have a material adverse
effect on the consummation of the transactions contemplated by the Placement Agreement and the
Operative Documents or the issuance and sale of the Capital Securities as contemplated therein or
the condition (financial or otherwise), earnings, affairs, business, or results of operations of
the Offerors and its subsidiaries on a consolidated basis.



     9. It is not necessary in connection with the offering, sale and delivery of the
Capital
Securities, the Debentures and the Guarantee Agreement (or the Guarantee) to register the same
under the Securities Act of 1933, as amended, under the circumstances contemplated in the Placement
Agreement and the Subscription Agreement.



     10. Neither the Company nor the Trust is an “investment company” or an entity “controlled” by
an “investment company,” in each case within the meaning of the Investment Company Act of 1940, as
amended.



     The opinion expressed in the first two sentences of numbered paragraph 1 of this Opinion
Letter is based solely upon certain certificates and confirmations issued by the applicable
governmental officer or authority with respect to each of the Company and the Subsidiaries.



     With respect to the foregoing opinions, since no member of this firm is actively engaged in
the practice of law in the States of Connecticut or New York, we do not express any opinions as to
the laws of such states and have (i) relied, with your approval, upon the opinion of Bingham Dana
LLP with respect to matters of Connecticut law and (ii) assumed, with your approval and without
rendering any opinion to such effect, that the laws of the State of New York are substantively
identical to the laws of the State of Delaware, without regard to conflict of law provisions.



     This opinion is rendered to you solely pursuant to Section 3.1(a) of the Placement Agreement.
As such, it may be relied upon by you only and may not be used or relied upon by any other person
for any purpose whatsoever without our prior written consent.



Very truly yours,




B-1-3 









 





EXHIBIT B-2




FORM OF CONNECTICUT COUNSEL OPINION



TO THE PARTIES LISTED

ON SCHEDULE I HERETO




Ladies and Gentlemen:




     We have acted as special counsel in the State of Connecticut (the “State”) for Alliance
Capital Partners Statutory Trust I (the ''Trust’’), a Connecticut statutory trust formed pursuant
to the Amended and Restated Declaration of Trust (the “Trust Agreement”) dated as of the date
hereof, among Alliance Capital Partners, L.P., a Delaware limited partnership (the “Sponsor”),
State Street Bank and Trust Company of Connecticut, National Association, a national banking
association (“State Street”), in its capacity as Institutional Trustee (the “Institutional
Trustee”), and Robert M. Clements, Gary A. Meeks and Terence G. Vane, Jr., each, an individual,
(each, an “Administrator”) in connection with the issuance by the Trust to the Holders (as defined
in the Trust Agreement) of its capital securities (the “Capital Securities”) pursuant to the
Placement Agreement dated as of July 20, 2001 (the “Placement Agreement”), the issuance by the
Trust to the Sponsor of its Common Securities, pursuant to the Trust Agreement and the acquisition
by the Trust from the Sponsor of Debentures, issued pursuant to the Indenture dated as of the date
hereof (the “Indenture”).



     The Institutional Trustee has requested that we deliver this opinion to you in accordance with
Section 3.1 (b) of the Placement Agreement. Capitalized terms not otherwise defined herein shall
have the meanings specified in, or defined by reference in or set forth in the Operative Documents
(as defined below).



     Our representation of the Trust has been as special counsel for the limited purposes stated
above. As to all matters of fact (including factual conclusions and characterizations and
descriptions of purpose, intention or other state of mind), we have relied, with your permission,
entirely upon (i) the representations and warranties of the parties set forth in the Operative
Documents and (ii) certificates delivered to us by the management of State Street, and have
assumed, with your permission, without independent inquiry, the accuracy of those representations,
warranties and certificates.



     We have examined the following documents to which the Trust is a party, each of which is dated
the date hereof, unless otherwise noted:




	 	(i)	 	the Trust Agreement;
	 
	 	(ii)	 	the Placement Agreement;
	 
	 	(iii)	 	the Subscription Agreement;
	 
	 	(iv)	 	the Certificate of Common Securities;
	 
	 	(v)	 	the Certificate of Capital Securities;
	 
	 	(vi)	 	the Guarantee Agreement;
	 
	 	(vii)	 	the Certificate of Trust; and




B-2-1 









 






	 	(vii)	 	a Certificate of Legal Existence for the Trust obtained from the Secretary
of State of the State of Connecticut dated
[            ]  (the “Certificate of Legal
Existence”).





     The documents referenced in subparagraphs (i) through (v) above are hereinafter referred to
collectively as the “Operative Documents.”



     We have also examined originals, or copies, certified or otherwise identified to our
satisfaction, of such other partnership and public records and agreements, instruments,
certificates and other documents as we have deemed necessary or appropriate for the purposes of
rendering this opinion. For purposes of our opinion rendered in paragraph I below, with respect to
the legal existence of the Trust, our opinion relies entirely upon and is limited by the
Certificate of Legal Existence, which is attached hereto as Exhibit A.



     We have assumed, with your permission, the genuineness of all signatures (other than those on
behalf of State Street, the Guarantee Trustee, Indenture Trustee, Institutional Trustee and the
Trust), the conformity of the originals of all documents reviewed by us as copies, the authenticity
and completeness of all original documents reviewed by us in original or copy form and the legal
competence of each individual executing any document (other than those individuals executing
documents on behalf of State Street, the Guarantee Trustee, Indenture Trustee, Institutional
Trustee and the Trust).



     When an opinion set forth below is given to the best of our knowledge, or to our knowledge, or
with reference to matters of which we are aware or which are !mown to use, or with another similar
qualification, the relevant knowledge or awareness is limited to the actual knowledge or awareness
of the individual lawyers in the firm who have participated directly and substantively in the
specific transactions to which this opinion relates and without any special or additional
investigation undertaken for the purposes of this opinion except as indicated herein.



     For the purposes of this opinion we have made such examination of law as we have deemed
necessary. The opinions expressed below are limited solely to the internal substantive laws of the
State (as applied by courts located in the State without regard to choice of law) and we express no
opinion as to the laws of any other jurisdiction. To the extent to which this opinion deals with
matters governed by or relating to the laws of any other state or jurisdiction, we have assumed,
with your permission, that the Operative Documents are governed by the internal substantive laws of
the State.



     We express no opinion as to (i) the effect of suretyship defenses, or defenses in the nature
thereof, with respect to the obligations of any applicable guarantor, joint obligor, surety,
accommodation party, or other secondary obligor or any provisions of the Trust Agreement with
respect to indemnification or contribution and (ii) the accuracy or completeness of any exhibits or
schedules to the Operative Documents. No opinion is given herein as to the choice of law or
internal substantive rules of law that any court or other tribunal may apply to the transactions
contemplated by the Operative Documents. No opinion is expressed herein as to the application or
effect of federal securities laws or as to the securities or so-called “Blue Sky” laws of
Connecticut or of any other state or other jurisdiction.



     Our opinion, with your permission, is further subject to the following exceptions,
qualifications and assumptions:




     (a) We have assumed without any independent investigation that (i) each party to the
Operative Documents, other than State Street, the Guarantee Trustee, Indenture Trustee,
Institutional Trustee and the Trust, as applicable, at all times relevant thereto, is validly
existing and in good standing under the laws of the jurisdiction in which it is organized,
and is qualified to



B-2-2 









 






do business and in good standing under the laws of each jurisdiction where such qualification
is required generally or necessary in order for such party to enforce its rights under such
Operative Documents, (ii) each party to the Operative Documents, at all times relevant thereto, had
and has the full power, authority and legal right under its certificate of incorporation,
partnership agreement, by-laws, and other governing organizational documents, and the applicable
corporate, partnership, or other enterprise legislation and other applicable laws, as the case may
be (other than State Street, the Guarantee Trustee, Indenture Trustee, Institutional Trustee or the
Trust) to execute, deliver and to perform its obligations under, the Operative Documents, and (iii)
each party to the Operative Documents other than State Street, the Guarantee Trustee, Indenture
Trustee, Institutional Trustee or the Trust has duly executed and delivered each of such agreements
and instruments to which it is a party and that the execution and delivery of such agreements and
instruments and the transactions contemplated thereby have been duly authorized by proper corporate
or other organizational proceedings as to each such party.




     (b) We have assumed without any independent investigation (i) that the Institutional Trustee,
the Sponsor and the Administrators have received the agreed to and stated consideration for the
incurrence of the obligations applicable to it under the Trust Agreement and each of the other
Operative Documents, (ii) that each of the Operative Documents (other than the Trust Agreement) is
a valid, binding and enforceable obligation of each party thereto other than the Trust, State
Street and the Institutional Trustee, as applicable; and, for the purposes of this opinion letter,
we herein also assume that each of the Operative Documents (other than the Trust Agreement)
constitutes a valid, binding and enforceable obligation of State Street, the Guarantee’ Trustee and
the Indenture Trustee, as applicable under Connecticut and federal law (as to which such matters we
are delivering to you a separate opinion letter on this date, which is subject to the assumptions,
qualifications and limitations set forth therein).




     (c) The enforcement of any obligations of State Street, the Sponsor and the Administrators, as
applicable, under the Trust Agreement and the obligations of the Trust under the other Operative
Documents may be limited by the receivership, conservatorship and supervisory powers of depository
institution regulatory agencies generally, as well as by bankruptcy, insolvency, reorganization,
moratorium, marshaling or other laws and rules of law affecting the enforcement generally of
creditors’ rights and remedies (including such as may deny giving effect to waivers of debtors’ or
guarantors’ rights); and we express no opinion as to the status under any fraudulent conveyance
laws or fraudulent transfer laws of any of the obligations of State Street, the Sponsor, the
Administrators or the Trust under any of the Operative Documents.




     (d) We express no opinion as to the enforceability of any particular provision of the Trust
Agreement or the other Operative Documents relating to remedies after default.




     (e) We express no opinion as the availability of any specific or equitable relief of any kind.




     (f) The enforcement of any rights may in all cases be subject to an implied duty of good faith
and fair dealing and to general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).




     (g) We express no opinion as to the enforceability of any particular provision of any of the
Operative Documents relating to (i) waivers of rights to object to jurisdiction or venue, or
consents to jurisdiction or venue, (ii) waivers of rights to (or methods of) service of process, or
rights to trial by jury, or other rights or benefits bestowed by operation of law, (iii) waivers of
any



B-2-3 









 







applicable defenses, setoffs, recoupments, or counterclaims, (iv) waivers or variations
of provisions which are not capable of waiver or variation under Sections 1-102(3), 9-501(3)
or other provisions of the Uniform Commercial Code (“UCC”) of the State, (v) the grant of
powers of attorney to any person or entity, or (vi) exculpation or exoneration clauses,
indemnity clauses, and clauses relating to releases or waivers of unmatured claims or rights.




     (h) We express no opinion as to the effect of events occurring, circumstances arising,
or changes of law becoming effective or occurring, after the date hereof on the matters
addressed in this opinion letter, and we assume no responsibility to inform you of additional
or changed facts, or changes in law, of which we may become aware.




     (i) We express no opinion as to any requirement that any party to the Operative
Documents (or any other persons or entities purportedly entitled to the benefits thereof)
qualify or register to do business in any jurisdiction in order to be able to enforce its
rights thereunder or obtain the benefits thereof.



     Based upon the foregoing and subject to the limitations and qualifications set forth herein,
we are of the opinion that:



     1. The Trust has been duly formed and is validly existing as a statutory trust under the
Connecticut Statutory Trust Act, Chapter 615 of Title 34 of the Connecticut General Statutes,
Section 500, et seq. (the “Act”).



     2. The Trust Agreement constitutes a valid and binding obligation of State Street
and the
Institutional Trustee enforceable against State Street and the Institutional Trustee in accordance
with the terms thereof.



     3. The Trust Agreement constitutes a valid and binding obligation of the Sponsor and
the
Administrators, enforceable against the Sponsor and the Administrators in accordance with its
terms.



     4. The Trust has the requisite trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents, and (b) perform its obligations under such
Operative Documents.



     5. Each of the Operative Documents to which the Trust is a party constitutes a valid and
binding obligation of the Trust, enforceable against the Trust in accordance with the terms
thereof.



     6. The Capital Securities have been duly authorized by the Trust under the Trust
Agreement, and the Capital Securities, when duly executed and delivered to the Holders in
accordance therewith, will be validly issued, fully paid and nonassessable and will evidence
undivided beneficial interests in the assets of the Trust and will be entitled to the benefits of
the Trust Agreement.



     7. The Common Securities have been duly authorized by the Trust Agreement, and the
Common Securities, when duly executed and delivered to the Company in accordance with the Trust
Agreement, the Placement Agreement and the Subscription Agreement and delivered and paid for in
accordance therewith, will be validly issued, fully paid and nonassessable and will evidence
undivided beneficial interests in the assets of the Trust and will be entitled to the benefits of
the Trust Agreement.



     8. Neither the execution, delivery or performance by the Trust of the Operative Documents, the
consummation by the Trust of the transactions contemplated thereby, nor compliance by the Trust
with any of the terms and provisions thereof, (a) violates the Trust Agreement, or, to the best of
our



B-2-4 









 




knowledge, contravenes or will contravene any provision of, or constitutes a default under, or
results in any breach of, or results in the creation of any lien (other than as permitted under the
Operative Documents) upon property of the Trust under, any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or credit agreement, license or other
agreement or instrument, in each case known to us, to which it is a party or by which it is bound
or (b) violates any applicable Connecticut law governing the Trust, or, to the best of our
knowledge, any judgment or order of any court or other tribunal, in each case known to us,
applicable to or binding on it.




     9. No consent, approval, order or authorization of, giving of notice to, or registration with,
or taking of any other action in respect of, any Connecticut governmental authority regulating the
Trust is required for the execution, delivery, validity or performance of, or the carrying out by,
the Trust of any of the transactions contemplated by the Operative Documents, other than any such
consent, approval, order, authorization, registration, notice or action as has been duly obtained,
given or taken.



     10. The Holders, as the beneficial holders of the Capital Securities, will be entitled to the
same limitation of personal liability extended to shareholders of domestic corporations organized
under the laws of the State.



     11. Under the Trust Agreement, the Issuance of the Capital Securities is not subject to
preemptive rights.



     12. Assuming that the Trust will not be taxable as a corporation for federal income tax ·
purposes, but rather will be classified for such purposes as a grantor trust, the Trust will not be
subject to any tax, fee or other government charge under the laws of the State of Connecticut or
any political subdivision thereof.



     This opinion is rendered solely for the benefit of those institutions listed on Schedule
I hereto and their successors and assigns in connection with the transactions contemplated by
the Operative Documents and may not be used or relied upon by any other person or for any other
purpose.



Very truly yours,




BINGHAM DANA LLP




B-2-5 









 





SCHEDULE I




State Street Bank and Trust Company of Connecticut, National Association




State Street Bank and Trust Company




First Tennessee Capital Markets




Keefe, Bruyette & Woods, Inc.




Preferred Term Securities ill, Ltd.




Preferred Term Securities ill, Inc.




Lewis, Rice & Fingersh, L.C.




Alliance Capital Partners, L.P.




B-2-6 









 





EXHIBIT A TO EXHIBIT B-2




CERTIFICATE OF LEGAL EXISTENCE



See attached



B-2-7 









 





EXHIBIT B-3




FORM OF TAX COUNSEL OPINION



Alliance Capital Partners, L.P.

8100 Nations Way

Jacksonville, Florida 32256




Alliance Capital Partners Statutory Trust I

c/o Alliance Capital Partners, L.P.

8100 Nations Way

Jacksonville, Florida 32256




First Tennessee Capital Markets

845 Crossover Lane, Suite 150

Memphis, Tennessee 38117




Keefe, Bruyette & Woods, Inc.

Two World Trade Center

New York, New York 10048




Ladies and Gentlemen:




     We have acted as special tax counsel to Alliance Capital Partners, L.P. and to Alliance
Capital Partners Statutory Trust I in connection with the proposed issuance of (i) Floating Rate
Capital Securities, liquidation amount $1,000.00 per Capital Security (the “Capital Securities”) of
Alliance Capital Partners Statutory Trust I, a statutory business trust created under the laws of
Connecticut (the “Trust”), pursuant to the terms of the Amended and Restated Declaration of Trust
dated as of the date hereof by Alliance Capital Partners, L.P., a Delaware limited partnership (the
“Company”), State Street Bank and Trust Company of Connecticut, National Association, as
institutional trustee, and Robert M. Clements, Gary A. Meeks and Terence G. Vane, Jr., as
Administrators (the “Trust Agreement”), (ii) Junior Subordinated Deferrable Interest Debentures
(the “Corresponding Debentures”) of the Company issued pursuant to the terms of an Indenture dated
as of the date hereof from the Company to State Street Bank and Trust Company of Connecticut,
National Association, as trustee (the “Indenture”), which Debentures are to be sold by the Company
to the Trust, and (iii) the Guarantee Agreement of the Company with respect to the Capital
Securities dated as of the date hereof (the “Guarantee”) between the Company and State Street Bank
and Trust Company of Connecticut, National Association, as guarantee trustee. The Capital
Securities and the Corresponding Debentures are to be issued as contemplated by the Offering
Circular (the “Offering Circular”) dated July 20, 2001 prepared by Preferred Term Securities ill,
Ltd., an entity formed under the Companies Law of the Cayman Islands, and Preferred Term Securities
ill, Inc., a Delaware corporation.



     We have examined originals or copies, certified or otherwise identified to our satisfaction,
of documents, partnership records and other instruments as we have deemed necessary or appropriate
for purposes of this opinion including (i) the Offering Circular, (ii) the Indenture, (iii) the
form of the Corresponding Debentures attached as an exhibit to the Indenture, (iv) the Trust
Agreement, (v) the Guarantee, and (vi) the form of Capital Securities Certificate attached as an
exhibit to the Trust Agreement (collectively the “Documents”). Furthermore, we have relied upon
certain representations made by the Company and upon the opinion of Bingham Dana LLP as to certain
matters of Connecticut



B-3-1 









 




law. In such examination, we have assumed the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as certified or
photostatic copies, the authenticity of the originals of such latter documents, the genuineness of
all signatures and the correctness of all representations made therein. We have further assumed
that there are no agreements or understandings contemplated therein other than those contained in
the Documents.




     Based upon the foregoing, and assuming (i) that the final Documents will be substantially
identical to the forms examined, (ii) full compliance with all the terms of the final Documents,
and (iii) the accuracy of representations made by the Company and delivered to us, we are of the
opinion that:




	 	(a)	 	The Corresponding Debentures will be classified as indebtedness for U.S. federal income
tax purposes.
	 
	 	(b)	 	The Trust will be characterized as a grantor trust and not as an association taxable as a
corporation for U.S. federal income tax purposes.





     The opinions expressed above are based on existing provisions of the Internal Revenue Code of
1986, as amended (the “Code”), existing Treasury regulations, published interpretations by the
Internal Revenue Service of the Code and such Treasury regulations, and existing court decisions,
any of which could be changed at any time. Any such changes mayor may not be retroactively applied,
and may result in federal income tax consequences that differ from those reflected in the opinions
set forth above. We note that there is no authority directly on point dealing with securities such
as the Capital Securities or with transactions of the type described herein, and that the
authorities on which this opinion is based are . subject to various interpretations. Further, you
should be aware that opinions of counsel have no official status and are not binding on the
Internal Revenue Service or the courts. Accordingly, we can provide no assurance that the
interpretation of the federal income tax laws set forth in our opinions will prevail if challenged
by the IRS in an administrative or judicial proceeding.



     We have also assumed that each transaction contemplated herein will be carried out strictly in
accordance with the Documents. Any variance in the facts may result in Federal income tax
consequences that differ from those reflected in the opinions set forth above.



     Additionally, we undertake no obligation to update this opinion in the event there is either a
change in the legal authorities, in the facts (including the taking of any action by any party to
any of the transactions described in the Documents relating to such transactions) or in the
Documents on which this opinion is based, or an inaccuracy in any of the representations upon which
we have relied in rendering this opinion.



     We express no opinion with respect to any matter not specifically addressed by the foregoing
opinions, including state or local tax consequences, or any federal, state, or local issue not
specifically referred to and discussed above including, without limitation, the effect on the
matters covered by this opinion of the laws of any other jurisdiction.



     This letter is delivered for the benefit of the specified addressees and may not be relied
upon by any other person. No portion of this letter may be quoted or otherwise referred to in any
document or delivered to any other person or entity without the express written consent of Lewis,
Rice & Fingersh, L.c. This opinion letter is rendered as of the date set forth above.



Very truly yours,




LEWIS, RICE & FINGERSH, L.C.




B-3-2 









 





Lewis, Rice & Fingersh, L.C.


500 N. Broadway, Suite 2000


St. Louis, Missouri 63102


Attention: Lawrence H. Weltman, Esq.




			
	     Re:	 	Representations Concerning the Issuance of Floating Rate Junior Subordinated Deferrable
Interest Debentures (the “Debentures”) to Alliance Capital Partners Statutory Trust I (the
“Trust”) and Sale of Trust Securities (the “Trust Securities”) of the Trust





Ladies and Gentlemen:




     In accordance with your request, Alliance Capital Partners, L.P. (the “Company”) hereby makes
the following representations in connection with the preparation of your opinion letter as to the
United States federal income tax consequences of the issuance by the Company of the Debentures to
the Trust and the sale of the Trust Securities.



     Company hereby represents that:



     1. The sole assets of the Trust will be the Debentures, proceeds of the Debentures,
or both.



     2. The Company intends to use the net proceeds from the sale of the Debentures for general
partnership purposes.



     3. The Trust was not formed to conduct any trade or business and is not authorized to conduct
any trade or business. The Trust exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) using the proceeds from the sale of Trust Securities to acquire the
Debentures, and (iii) engaging only in activities necessary or incidental thereto.



     4. The Trust was formed to facilitate direct investment in the assets of the Trust, and the
existence of multiple classes of ownership is incidental to that purpose. There is no intent to
provide holders of such interests in the Trust with diverse interests in the assets of the Trust.



     5. The Company intends to create a debtor-creditor relationship between the Company, as
debtor, and the Trust, as a creditor, upon the issuance and sale of the Debentures to the Trust by
the Company. The Company will (i) record and at all times continue to reflect the Debentures as
indebtedness on its separate books and records for financial accounting purposes, and (ii) treat
the Debentures as indebtedness for all United States tax purposes.



     6. During each year, the Trust’s income will consist solely of payments made by the
Company with respect to the Debentures. Such payments will not be derived from the active
conduct of a financial business by the Trust. Both the Company’s obligation to make such payments
and the measurement of the amounts payable by the Company are defined by the terms of the
Debentures. Neither the Company’s obligation to make such payments nor the measurement of the
amounts payable by the Company is dependent on income or profits of Company or any affiliate of the
Company.



     7. The Company expects that it will be able to make, and will make, timely payment of amounts
identified by the Debentures as principal and interest in accordance with the terms of the
Debentures with available capital or accumulated earnings.



 









 





     8. The Company presently has no intention to defer interest payments on the Debentures, and it
considers the likelihood of such a deferral to be remote because, if it were to exercise its right
to defer payments of interest with respect to the Debentures, it would not be permitted to declare
or pay any dividends or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any capital stock of the Company or any affiliate of the Company (other
than payments of dividends or distributions to the Company) or make any payment of principal of or
interest or premium, if any, on or repay, repurchase, or redeem any debt securities of the Company
or any affiliate of the Company that rank pari passu in all respects with or junior in interest to
the Debentures, in each case subject to limited exceptions stated in Section 2.11 of the Indenture
to be entered into in connection with the issuance of the Debentures.



     9. Immediately after the issuance of the Debentures, the debt-to-equity ratio of the
Company (as determined for financial accounting purposes, but excluding deposit liabilities from
the Company’s debt) will be within standard depository institution industry norms and, in any
event, will be no higher than four to one (4 : 1).



     10. To the best of our knowledge, the Company is currently in compliance with all federal,
state, and local capital requirements, except to the extent that failure to comply with any such
requirements would not have a material adverse effect on the Company and its affiliates.



     11. The Company will not issue any class of common stock or preferred stock senior to the.
Debentures during their term.



     12. The Internal Revenue Service has not challenged the interest deduction on any class of the
Company’s subordinated debt in the last ten (10) years on the basis that such debt constitutes
equity for federal income tax purposes.



     The above representations are accurate as of the date below and will continue to be accurate
through the issuance of the Trust Securities, unless you are otherwise notified by us in writing.
The undersigned understands that you will rely on the foregoing in connection with rendering
certain legal opinions, and possesses the authority to make the representations set forth in this
letter on behalf of the Company.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	ALLIANCE CAPITAL PARTNERS, L.P.	 	 
	 
	 	 	 	 	 	 
	Date: _____ 2001

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 

	 	 






 









 





EXHIBIT
C




COMPANY SUBSIDIARIES


First Alliance Bank




C-1









 






EXHIBIT D




FORM
OF QUARTERLY REPORT



Mr. Frederick Agu

Preferred Term Securities III, Ltd.

clo The Chase Manhattan Bank

600 Travis Street 

50th Floor

Houston, TX 77002




	 	 	 	 	 

	BANK HOLDING COMPANY
	 	 	 	 
	As of [March 31, June 30, September 30 or December 31], 20_
	 	 	 	 
	 
	Tier I to Risk Weighted Assets
	 	 	 	%
	 
	 	 	 
	 
	Ratio of Double Leverage
	 	 	 	%
	 
	 	 	 
	 
	Non-Performing Assets to Loans and OREO
	 	 	 	%
	 
	 	 	 
	 
	Ratio of Reserves to Non-Performing Loans
	 	 	 	%
	 
	 	 	 
	 
	Ratio of Net Charge-Offs to Loans
	 	 	 	%
	 
	 	 	 
	 
	Rerum on Average Assets (annualized) **
	 	 	 	%
	 
	 	 	 
	 
	Net Interest Margin (annualized)**
	 	 	 	%
	 
	 	 	 
	 
	Efficiency Ratio
	 	 	 	%
	 
	 	 	 
	 
	Ratio of Loans to Assets
	 	 	 	%
	 
	 	 	 
	 
	Ratio of Loans to Deposits
	 	 	 	%
	 
	 	 	 
	 
	Total Assets
	$		 	 
	 
	 	 	 
	 
	Year to Date Income
	$		 	 
	 
	 	 	 







 




			
	* A table describing the quarterly report calculation procedures is provided on page D-2
	 
	** To annualize Return on Average Assets and Net Interest Margin do the following:




1st Quarter-multiply income statement item by 4, then divide by balance sheet
item(s)



2nd Quarter-multiply income statement item by 2,then divide by balance sheet
item(s)



3rd Quarter-divide income statement item by 3, then multiply by 4, then divide by
balance sheet item(s)



4th Quarter-should already be an annual number




NO ADJUSTMENT SHOULD BE MADE TO BALANCE SHEET ITEMS




D-1 









 






Financial Definitions




	 	 	 	 	 
	 	 	Corresponding FRY-9C or LP Line Items with	 	 
	Report Item	 	Line Item corresponding Schedules	 	Description of Calculation
	“Tier 1 Capital” to
Risk Weighted Assets

	 	BHCK7206


Schedule HC-R
	 	Tier I Risk Ratio: Core Capital (Tier
1)/
Risk-Adjusted Assets
	 
	 	 	 	 
	Ratio of Double Leverage

	 	(BHCP0365)/(BHCP3210)


Schedule PC in the LP
	 	Total equity investments in subsidiaries
divided by the total equity capital. This
field is calculated at the parent company
level. “Subsidiaries” include bank, bank
holding company, and nonblank subsidiaries.
	 
	 	 	 	 
	Non-Performing Assets
to Loans and OREO

	 	(BHCK5525-BHCK3506+BHCK5526-

BHCK3507 +BHCKl744)/(BHCKlI22+BHCK27 44)

Schedules HC-C, HC-M & HC-N
	 	Total Nonperforming Assets (NPLs+Foreclosed

Real Estate+Other Nonaccrual & Repossessed

Assets)/ Total Loans + Foreclosed Real

Estate
	 
	 	 	 	 
	Ratio of Reserves to
Non-Performing Loans

	 	(BHCK3123+BHCK3128)/(BHCK5525-

BHCK3506+BHCK5526-BHCK3507)

Schedules HC & HC-N
	 	Total Loan Loss and Allocated Transfer Risk
Reserves/ Total Nonperforming Loans
(Nonaccrual + Restructured)
	 
	 	 	 	 
	Ratio of Net Charge-Offs to Loans

	 	(BHCK4635-BHCK4605)/(BHCK3516)

Schedules HI-B & HC-K
	 	Net charge offs for the period as a
percentage of average loans.
	 
	 	 	 	 
	Return on Assets

	 	(BHCK4340IBHCK3368)

Schedules HI & HC-K
	 	Net Income as a percentage of Assets.
	 
	 	 	 	 
	Net Interest Margin

	 	(BHCK4519)/(BHCK3515+BHCK3365+

BHCK3516
+BHCK3401 +BHCKB985)


Schedules HI Memorandum and HC-K
	 	(Net Interest Income Fully Taxable

Equivalent, if available/Average Earning

Assets)
	 
	 	 	 	 
	Efficiency
Ratio

	 	(BHCK4093)/(BHCK4519+BHCK4079)

Schedule HI
	 	(Noninterest Expense)/(Net Interest

Income Fully Taxable Equivalent, if

available, plus Noninterest Income)
	 
	 	 	 	 
	Ratio of Loans to
Assets

	 	(BHCKB528+BHCK5369)IBHCK2170)

Schedule HC
	 	Total Loans & Leases (Net of Unearned
Income & Gross of Reserve)/ Total Assets
	 
	 	 	 	 
	Ratio of Loans to
Deposits

	 	(BHCKB528+BHCK5369)/(BHDM6631 +BHDM66
36+BHFN6631 +BHFN6636)

Schedule HC
	 	Total Loans & Leases (Net of Unearned
Income & Gross of Reserve)/ Total
Deposits (Includes Domestic and Foreign
Deposits)
	 
	 	 	 	 
	Total Assets

	 	(BHCKl170)


Schedule HC
	 	The sum of total assets. Includes cash and
balances due from depository institutions;
securities; federal funds sold and securities
purchased under agreements to resell; loans
and lease financing receivables; trading
assets; premises and fixed assets; other real
estate owned; investments in unconsolidated
subsidiaries and associated companies;
customer’s liability on acceptances
outstanding; intangible assets; and other
assets.
	 
	 	 	 	 
	Net Income

	 	(BHCK4300)


Schedule HI
	 	The sum of income (loss) before
extraordinary items and other adjustments
and extraordinary items; and other
adjustments, net of income taxes.







D-2