AMENDED
AND RESTATED DECLARATION
  OF
TRUST
  VINEYARD
STATUTORY TRUST VII
  Dated as
of December 22, 2004
  
   
   TABLE OF
CONTENTS
  Page
  ARTICLE
I
  INTERPRETATION
AND DEFINITIONS
  SECTION
      1.1.
    Definitions
    1
 
 ARTICLE
II
  ORGANIZATION
  SECTION
      2.1.
    Name
    8SECTION
      2.2.
    Office
    8SECTION
      2.3.
    Purpose
    8SECTION
      2.4.
    Authority
    8SECTION
      2.5.
    Title
      to Property of the Trust
    9SECTION
      2.6.
    Powers
      and Duties of the Trustees and the Administrators
    9SECTION
      2.7.
    Prohibition
      of Actions by the Trust and the Trustees
    13SECTION
      2.8.
    Powers
      and Duties of the Institutional Trustee
    13SECTION
      2.9.
    Certain
      Duties and Responsibilities of the Trustees and the
      Administrators
    15SECTION
      2.10.
    Certain
      Rights of Institutional Trustee
    16SECTION
      2.11.
    Delaware
      Trustee
    18SECTION
      2.12.
    Execution
      of Documents
    19SECTION
      2.13.
    Not
      Responsible for Recitals or Issuance of Securities
    19SECTION
      2.14.
    Duration
      of Trust
    19SECTION
      2.15.
    Mergers
    19
 
 ARTICLE
III
  SPONSOR
  SECTION
      3.1.
    Sponsor's
      Purchase of Common Securities
    21SECTION
      3.2.
    Responsibilities
      of the Sponsor
    21
 
 ARTICLE
IV
  TRUSTEES
AND ADMINISTRATORS
  SECTION
      4.1.
    Number
      of Trustees
    21SECTION
      4.2.
    Delaware
      Trustee
    21SECTION
      4.3.
    Institutional
      Trustee; Eligibility
    22SECTION
      4.4.
    Certain
      Qualifications of the Delaware Trustee Generally
    22SECTION
      4.5.
    Administrators
    22SECTION
      4.6.
    Initial
      Delaware Trustee
    22SECTION
      4.7.
    Appointment,
      Removal and Resignation of the Trustees and the
    Administrators
    22SECTION
      4.8.
    Vacancies
      Among Trustees
    24SECTION
      4.9.
    Effect
      of Vacancies
    24SECTION
      4.10.
    Meetings
      of the Trustees and the Administrators
    24SECTION
      4.11.
    Delegation
      of Power
    25SECTION
      4.12.
    Merger,
      Conversion, Consolidation or Succession to Business
    25
 
 -i-
 ARTICLE
V
  DISTRIBUTIONS
  SECTION
      5.1.
    Distributions
    25
 
 ARTICLE
VI
  ISSUANCE
OF SECURITIES
  SECTION
      6.1.
    General
      Provisions Regarding Securities
    26SECTION
      6.2.
    Paying
      Agent, Transfer Agent, Calculation Agent and Registrar
    26SECTION
      6.3.
    Form
      and Dating
    27SECTION
      6.4.
    Mutilated,
      Destroyed, Lost or Stolen Certificates
    27SECTION
      6.5.
    Temporary
      Securities
    28SECTION
      6.6.
    Cancellation
    28SECTION
      6.7.
    Rights
      of Holders; Waivers of Past Defaults
    28
 
 ARTICLE
VII
  DISSOLUTION
AND TERMINATION OF TRUST
  SECTION
      7.1.
    Dissolution
      and Termination of Trust
    30
 
 ARTICLE
VIII
  TRANSFER
OF INTERESTS
  SECTION
      8.1.
    General
    30SECTION
      8.2.
    Transfer
      Procedures and Restrictions
    31SECTION
      8.3.
    Deemed
      Security Holders
    35SECTION
      8.4.
    Initial
      Transfer of Capital Securities
    36
 
 ARTICLE
IX
  LIMITATION
OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
  SECTION
      9.1.
    Liability
    36SECTION
      9.2.
    Exculpation
    37SECTION
      9.3.
    Fiduciary
      Duty
    37SECTION
      9.4.
    Indemnification
    37SECTION
      9.5.
    Outside
      Businesses
    40SECTION
      9.6.
    Compensation;
      Fee
    40
 
 ARTICLE
X
  ACCOUNTING
  SECTION
      10.1.
    Fiscal
      Year
    41SECTION
      10.2.
    Certain
      Accounting Matters
    41SECTION
      10.3.
    Banking
    41SECTION
      10.4.
    Withholding
    42
 
 ARTICLE
XI
  AMENDMENTS
AND MEETINGS
  -ii-
 SECTION
      11.1.
    Amendments
    42SECTION
      11.2.
    Meetings
      of the Holders of the Securities; Action by Written
Consent
    44
 
 ARTICLE
XII
  REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE AND DELAWARE TRUSTEE
  SECTION
      12.1.
    Representations
      and Warranties of Institutional Trustee
    45SECTION
      12.2.
    Representations
      and Warranties of Delaware Trustee
    46
 
 ARTICLE
XIII
  MISCELLANEOUS
  SECTION
      13.1.
    Notices
    46SECTION
      13.2.
    Governing
      Law
    47SECTION
      13.3.
    Submission
      to Jurisdiction
    48SECTION
      13.4.
    Intention
      of the Parties
    48SECTION
      13.5.
    Headings
    48SECTION
      13.6.
    Successors
      and Assigns
    48SECTION
      13.7.
    Partial
      Enforceability
    48SECTION
      13.8.
    Counterparts
    48
 
  ANNEXES
AND EXHIBITS
  ANNEX
    Terms
      of TP Securities and Common SecuritiesEXHIBIT
      A-1
    Form
      of Capital Security CertificateEXHIBIT
      A-2
    Form
      of Common Security CertificateEXHIBIT
      B
    Form
      of Transferee Certificate to be Executed by Transferees Other than
      QIBsEXHIBIT
      C
    Form
      of Transferor Certificate to be Executed for QIBs
  
  
   -iii-
   AMENDED
AND RESTATED DECLARATION OF TRUST
  OF
  Vineyard
Statutory Trust VII
  December
22, 2004
  AMENDED
AND RESTATED DECLARATION OF TRUST (this “Declaration”), dated and effective as
of December 22, 2004, by the Trustees (as defined herein), the Administrators
(as defined herein), the Sponsor (as defined herein) and the holders from time
to time of undivided beneficial interests in the assets of the Trust (as defined
herein) to be issued pursuant to this Declaration.
  WHEREAS,
certain of the Trustees and the Sponsor established Vineyard Statutory Trust VII
(the “Trust”), a statutory trust under the Statutory Trust Act (as defined
herein), pursuant to a Declaration of Trust, dated as of December 13, 2004 (the
“Original Declaration”), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on December 13, 2004, 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) and participating
in the Regional Diversified Funding 2004-II Ltd. transaction or other pooled
trust preferred program;
  WHEREAS,
as of the date hereof, no interests in the assets of the Trust have been issued;
and
  WHEREAS,
all of the Trustees, the Administrators and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original
Declaration.
  NOW,
THEREFORE, it being the intention of the parties hereto to continue the Trust as
a statutory trust under the Statutory Trust Act and that this Declaration
constitutes the governing instrument of such statutory trust, and that all
assets contributed to the Trust will be held in trust for the benefit of the
holders, from time to time, of the securities representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration, and, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties, intending to be legally bound hereby, amend and
restate in its entirety the Original Declaration and agree as
follows:
  ARTICLE
I
  
  INTERPRETATION
AND DEFINITIONS
  SECTION
1.1.  Definitions . Unless
the context otherwise requires:
  (a)  capitalized
terms used in this Declaration but not defined in the preamble above or
elsewhere herein have the respective meanings assigned to them in this Section
1.1 or, if not defined in this Section 1.1 or elsewhere herein, in the
Indenture;
  (b)  a term
defined anywhere in this Declaration has the same meaning
throughout;
  (c)  all
references to “the Declaration” or “this Declaration” are to this Declaration as
modified, supplemented or amended from time to time;
  1
 (d)  all
references in this Declaration to Articles and Sections and Annexes and Exhibits
are to Articles and Sections of and Annexes and Exhibits to this Declaration
unless otherwise specified;
  (e)  a term
defined in the Trust Indenture Act (as defined herein) has the same meaning when
used in this Declaration unless otherwise defined in this Declaration or unless
the context otherwise requires; and
  (f)  a
reference to the singular includes the plural and vice versa.
  “ Acceleration
Event of Default ”: has
the meaning set forth in Section 5.01 of the Indenture.
  “ Additional
Amounts ”: has
the meaning set forth in Section 3.06 of the Indenture.
  “ Administrative
Action ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Administrators ”: means
each of Norman A. Morales and Gordon Fong, solely in such Person’s capacity as
Administrator of the Trust continued hereunder and not in such Person’s
individual capacity, or such Administrator’s successor in interest in such
capacity, or any successor appointed as herein provided.
  “ Affiliate ”: has
the same meaning as given to that term in Rule 405 of the Securities Act or any
successor rule thereunder.
  “ Authorized
Officer ”: of a
Person means any Person that is authorized to bind such Person.
  “ Bankruptcy
Event ”: means,
with respect to any Person:
  (a)  a court
having jurisdiction in the premises enters a decree or order for relief in
respect of such Person in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appoints a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of such Person or for any substantial part of its property, or orders
the winding-up or liquidation of its affairs, and such decree, appointment or
order remains unstayed and in effect for a period of 90 consecutive days;
or
  (b)  such
Person commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, consents to the entry of an order
for relief in an involuntary case under any such law, or consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of such Person of any
substantial part of its property, or makes any general assignment for the
benefit of creditors, or fails generally to pay its debts as they become
due.
  “ Business
Day ”: means
any day other than Saturday, Sunday or any other day on which banking
institutions in Wilmington, Delaware, New York City or Irvine, California are
permitted or required by any applicable law or executive order to
close.
  “ Calculation
Agent ”: has
the meaning set forth in Section 1.01 of the Indenture.
  “ Capital
Securities ”: has
the meaning set forth in Section 6.1(a).
  “ Capital
Security Certificate ”: means
a definitive Certificate registered in the name of the Holder representing a
Capital Security substantially in the form of Exhibit A-1.
  2
 “ Capital
Treatment Event ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Certificate ”: means
any certificate evidencing Securities.
  “ Certificate
of Trust ”: means
the certificate of trust filed with the Secretary of State of the State of
Delaware with respect to the Trust, as amended and restated from time to
time.
  “ Clearstream ”: means
Citibank, N.A., as operator of Clearstream Banking, société
anonyme.
  “ Closing
Date ”: has
the meaning set forth in the Purchase Agreement.
  “ Code ”: means
the Internal Revenue Code of 1986, as amended from time to time, or any
successor legislation.
  “ Commission ”: means
the United States Securities and Exchange Commission.
  “ Common
Securities ”: has
the meaning set forth in Section 6.1(a).
  “ Common
Security Certificate ”: means
a definitive Certificate registered in the name of the Holder representing a
Common Security substantially in the form of Exhibit A-2.
  “ Company
Indemnified Person ”: means
(a) any Administrator; (b) any Affiliate of any Administrator; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrator; or (d) any officer, employee or agent of the Trust or its
Affiliates.
  “ Comparable
Treasury Issue ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Comparable
Treasury Price ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Corporate
Trust Office ”: means
the office of the Institutional Trustee at which the corporate trust business of
the Institutional Trustee shall, at any particular time, be principally
administered, which office shall at all times be located in the United States
and at the date of execution of this Declaration is located at 919 North Market
Street Suite 700, Wilmington, DE 19801, Attention: Corporate Trust
Administration.
  “ 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.
  “ Debenture
Issuer ”: means
Vineyard National Bancorp, a bank holding company incorporated in California, in
its capacity as issuer of the Debentures under the Indenture.
  “ Debenture
Trustee ”: means
Wells Fargo Bank, National Association, a national banking association with its
principal place of business in the State of Delaware, not in its individual
capacity but solely as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
  “ Debentures ”: means
the Floating Rate Junior Subordinated Debt Securities due 2034 to be issued by
the Debenture Issuer under the Indenture.
  3
 “ Deferred
Interest ”: means
any interest on the Debentures that would have been overdue and unpaid for more
than one Distribution Payment Date but for the imposition of an Extension
Period, and the interest that shall accrue (to the extent that the payment of
such interest is legally enforceable) on such interest at the Coupon Rate in
effect for each such Extension Period, compounded quarterly from the date on
which such Deferred Interest would otherwise have been due and payable until
paid or made available for payment.
  “ Definitive
Capital Securities ”: means
any Capital Securities in definitive form issued by the Trust.
  “ Delaware
Trustee ”: has
the meaning set forth in Section 4.2.
  “ Direct
Action ”: has
the meaning set forth in Section 2.8(e).
  “ Distribution ”: means
a distribution payable to Holders of Securities in accordance with Section
5.1.
  “ Distribution
Payment Date ”: has
the meaning set forth in paragraph 2(e) of Annex I.
  “ Distribution
Period ”: has
the meaning set forth in paragraph 2(a) of Annex I.
  “ Euroclear ”:
Euroclear Bank S.A./N.V. as operator and depository of the Euroclear
system.
  “ Event
of Default ”: means
the occurrence of an Indenture Event of Default.
  “ Exchange
Act ”: means
the Securities Exchange Act of 1934, as amended from time to time, or any
successor legislation.
  “ Extension
Period ”: has
the meaning set forth in paragraph 2(e) of Annex I.
  “ Federal
Reserve ”: has
the meaning set forth in paragraph 3 of Annex I.
  “ Fiduciary
Indemnified Person ”: shall
mean each of the Institutional Trustee (including in its individual capacity),
the Delaware Trustee (including in its individual capacity), any Affiliate of
the Institutional Trustee or the Delaware Trustee, and any officers, directors,
shareholders, members, partners, employees, representatives, custodians,
nominees or agents of the Institutional Trustee or the Delaware
Trustee.
  “ Fiscal
Year ”: has
the meaning set forth in Section 10.1
  “ Guarantee ”: means
the Guarantee Agreement, dated as of December 22, 2004, of the Sponsor in
respect of the Capital Securities.
  “ Holder ”: means
a Person in whose name a Certificate representing a Security is registered on
the register maintained by or on behalf of the Registrar, such Person being a
beneficial owner within the meaning of the Statutory Trust Act.
  “ Holders
of 10% in liquidation amount of the Securities ”: means
Holders of outstanding Securities voting together as a single 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 and,
“Holders of not less than 10% in liquidation amount of the Securities” and
“Holders of not less than 10% in liquidation amount of the Capital Securities”
shall have meaning correlative to the foregoing.
  4
 “ Holders
of a Majority in liquidation amount of the Securities ”: means
Holders of outstanding Securities voting together as a single 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,
and “Holders of a Majority in liquidation amount of the Capital Securities,”
“Holders in liquidation amount of the Common Securities” and “Holders of not
less than a Majority in liquidation amount of the Securities” shall have
meanings correlative to the foregoing.
  “ Indemnified
Person ”: means
a Company Indemnified Person or a Fiduciary Indemnified Person.
  “ Indenture ”: means
the Indenture, dated as of December 22, 2004, among the Debenture Issuer and the
Debenture Trustee, and any indenture supplemental thereto pursuant to which the
Debentures are to be issued.
  “ Indenture
Event of Default ”: means
an “Event of Default” as defined in the Indenture.
  “ Initial
Purchaser ”: has
the meaning set forth in the Purchase Agreement.
  “ Institutional
Trustee ”: means
the Trustee meeting the eligibility requirements set forth in Section
4.3.
  “ Investment
Company ”: means
an investment company as defined in the Investment Company Act.
  “ Investment
Company Act ”: means
the Investment Company Act of 1940, as amended from time to time, or any
successor legislation.
  “ Investment
Company Event ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Legal
Action ”: has
the meaning set forth in Section 2.8(e).
  “ LIBOR ”: means
the London Interbank Offered Rate for U.S. Dollar deposits in Europe as
determined by the Calculation Agent according to paragraph 2(b) of Annex
I.
  “ LIBOR
Banking Day ”: has
the meaning set forth in paragraph 2(b)(1) of Annex I.
  “ LIBOR
Business Day ”: has
the meaning set forth in paragraph 2(b)(1) of Annex I.
  “ LIBOR
Determination Date ”: has
the meaning set forth in paragraph 2(b)(1) of Annex I.
  “ Liquidation ”: has
the meaning set forth in paragraph 3 of Annex I.
  “ Liquidation
Distribution ”: has
the meaning set forth in paragraph 3 of Annex I.
  “ Officers’
Certificate ”: means,
with respect to any Person, a certificate signed by two Authorized Officers of
such Person. Any Officers’ Certificate delivered with respect to compliance with
a condition or covenant provided for in this Declaration shall
include:
  5
 (a)  a
statement that each officer signing the Officers’ Certificate has read the
covenant or condition and the definitions relating thereto;
  (b)  a brief
statement of the nature and scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;
  (c)  a
statement that each such officer has made such examination or investigation as,
in such officer’s opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
  (d)  a
statement as to whether, in the opinion of each such officer, such condition or
covenant has been complied with.
  “ Paying
Agent ”: has
the meaning set forth in Section 6.2.
  “ Payment
Amount ”: has
the meaning set forth in Section 5.1.
  “ Person ”: means
a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or political
subdivision thereof, or any other entity of whatever nature.
  “ PORTAL ”: has
the meaning set forth in Section 2.6(a)(i).
  “ Primary
Treasury Dealer ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Property
Account ”: has
the meaning set forth in Section 2.8(c).
  “ Pro
Rata ”: has
the meaning set forth in paragraph 8 of Annex I.
  “ Purchase
Agreement ”: means
the Purchase Agreement relating to the offering and sale of Capital
Securities.
  “ QIB ”: means
a “qualified institutional buyer” as defined under Rule 144A.
  “ Quorum ”: means
a majority of the Administrators or, if there are only two Administrators, both
of them.
  “ Quotation
Agent ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Redemption/Distribution
Notice ”: has
the meaning set forth in paragraph 4(e) of Annex I.
  “ Redemption
Price ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Reference
Treasury Dealer ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Reference
Treasury Dealer Quotations ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Registrar ”: has
the meaning set forth in Section 6.2.
  “ Regulation
S Transferee ”: means
a non-U.S. Person acquiring Capital Securities in accordance with Regulation S
under the Securities Act.
  6
 “ Relevant
Trustee ”: has
the meaning set forth in Section 4.7(a).
  “ Remaining
Life ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Responsible
Officer ”: means,
with respect to the Institutional Trustee, any officer within the Corporate
Trust Office of the Institutional Trustee with direct responsibility for the
administration of this Declaration, including any vice-president, any assistant
vice-president, any secretary, any assistant secretary, the treasurer, any
assistant treasurer, any trust officer or other officer of the Corporate Trust
Office of the Institutional Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of that officer’s knowledge of and familiarity with
the particular subject.
  “ Restricted
Securities Legend ”: has
the meaning set forth in Section 8.2(c).
  “ Rule
144A ”: means
Rule 144A under the Securities Act.
  “ Rule
3a-5 ”: means
Rule 3a-5 under the Investment Company Act.
  “ Rule
3a-7 ”: means
Rule 3a-7 under the Investment Company Act.
  “ 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.
  “ Sponsor ”: means
Vineyard National Bancorp, a bank holding company that is a U.S. Person
incorporated in California, or any successor entity in a merger, consolidation
or amalgamation that is a U.S. Person, in its capacity as sponsor of the
Trust.
  “ Statutory
Trust Act ”: means
Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code § 3801 et seq., as it
may be amended from time to time, or any successor legislation.
  “ Successor
Delaware Trustee ”: has
the meaning set forth in Section 4.7(e).
  “ Successor
Entity ”: has
the meaning set forth in Section 2.15(b).
  “ Successor
Institutional Trustee ”: has
the meaning set forth in Section 4.7(b).
  “ Successor
Securities ”: has
the meaning set forth in Section 2.15(b).
  “ Super
Majority ”: has
the meaning set forth in paragraph 5(b) of Annex I.
  “ Tax
Event ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Transfer
Agent ”: has
the meaning set forth in Section 6.2.
  “ Treasury
Rate ”: has
the meaning set forth in paragraph 4(a) of Annex I.
  “ Treasury
Regulations ”: means
the income tax regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such regulations
may be amended from time to time (including corresponding provisions of
succeeding regulations).
  7
 “ Trust
Indenture Act ”: means
the Trust Indenture Act of 1939, as amended from time to time, or any successor
legislation.
  “ Trustee ” or
“ Trustees ”: means
each Person who has signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and references herein to a
Trustee or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.
  “ Trust
Property ”: means
(a) the Debentures, (b) any cash on deposit in, or owing to, the Property
Account and (c) all proceeds and rights in respect of the foregoing and any
other property and assets for the time being held or deemed to be held by the
Institutional Trustee pursuant to the trusts of this Declaration.
  “ U.S.
Person ”: means
a United States Person as defined in Section 7701(a)(30) of the
Code.
  ARTICLE
II
  
  ORGANIZATION
  SECTION
2.1.  Name . The
Trust is named “Vineyard Statutory Trust VII,” as such name may be modified from
time to time by the Administrators following written notice to the Institutional
Trustee and the Holders of the Securities. The Trust’s activities may be
conducted under the name of the Trust or any other name deemed advisable by the
Administrators.
  SECTION
2.2.  Office . The
address of the principal office of the Trust, which shall be in a state of the
United States or the District of Columbia, is 8105 Irvine Center Drive #600,
Irvine, CA 92618. On ten Business Days’ written notice to the Institutional
Trustee and the Holders of the Securities, the Administrators may designate
another principal office, which shall be in a state of the United States or the
District of Columbia.
  SECTION
2.3.  Purpose . The
exclusive purposes and functions of the Trust are (a) to issue and sell the
Securities representing undivided beneficial interests in the assets of the
Trust, (b) to invest the gross proceeds from such sale in the Debentures and (c)
except as otherwise limited herein, to engage in only those other activities
incidental thereto that are deemed necessary or advisable by the Institutional
Trustee, including, without limitation, those activities specified in this
Declaration. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, pledge any of its assets, or otherwise undertake (or
permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor
trust.
  SECTION
2.4.  Authority . Except
as specifically provided in this Declaration, the Institutional Trustee shall
have exclusive and complete authority to carry out the purposes of the Trust. An
action taken by a Trustee on behalf of the Trust and in accordance with such
Trustee’s powers shall constitute the act of and serve to bind the Trust. In
dealing with the Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind the Trust.
Persons dealing with the Trust are entitled to rely conclusively on the power
and authority of the Trustees as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth herein with
respect to accomplishing the purposes of the Trust and are not intended to be
trustees or fiduciaries with respect to the Trust or the Holders. The
Institutional Trustee shall have the right, but shall not be obligated except as
provided in Section 2.6, to perform those duties assigned to the
Administrators.
  8
 SECTION
2.5.  Title
to Property of the Trust . Except
as provided in Section 2.8 with respect to the Debentures and the Property
Account or as otherwise provided in this Declaration, legal title to all assets
of the Trust shall be vested in the Trust. The Holders shall not have legal
title to any part of the assets of the Trust, but shall have an undivided
beneficial interest in the assets of the Trust.
  SECTION
2.6.  Powers
and Duties of the Trustees and the Administrators .
  (a)  The
Trustees and the Administrators shall conduct the affairs of the Trust in
accordance with the terms of this Declaration. Subject to the limitations set
forth in paragraph (b) of this Section, and in accordance with the
following provisions (i) and (ii), the Administrators and, at the direction of
the Administrators, the Trustees, shall have the authority to enter into all
transactions and agreements determined by the Administrators to be appropriate
in exercising the authority, express or implied, otherwise granted to the
Trustees or the Administrators, as the case may be, under this Declaration, and
to perform all acts in furtherance thereof, including without limitation, the
following:
  (i)  Each
Administrator shall have the power, duty and authority, and is hereby
authorized, to act on behalf of the Trust with respect to the following
matters:
  (A)  the
issuance and sale of the Securities;
  (B)  to cause
the Trust to enter into, and to execute, deliver and perform on behalf of the
Trust, such agreements as may be necessary or desirable in connection with the
purposes and function of the Trust, including agreements with the Paying Agent,
a Debenture subscription agreement between the Trust and the Sponsor and a
Common Securities subscription agreement between the Trust and the
Sponsor;
  (C)  ensuring
compliance with the Securities Act and applicable state securities or blue sky
laws;
  (D)  assisting
with providing book-entry clearance for the Capital Securities pursuant to
Section 8.2(e) and if and at such time determined solely by the Sponsor at the
request of the Holders, assisting in the designation of the Capital Securities
for trading in the Private Offering, Resales and Trading through the Automatic
Linkages (“PORTAL”) system if available;
  (E)  the
sending of notices (other than notices of default) and other information
regarding the Securities and the Debentures to the Holders in accordance with
this Declaration, including notice of any notice received from the Debenture
Issuer of its election to defer payments of interest on the Debentures by
extending the interest payment period under the Indenture;
  (F)  the
appointment of a Paying Agent, Transfer Agent and Registrar in accordance with
this Declaration;
  (G)  execution
and delivery of the Securities in accordance with this Declaration;
  (H)  execution
and delivery of closing certificates pursuant to the Purchase Agreement and the
application for a taxpayer identification number;
  9
 (I)  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;
  (J)  the
taking of any action incidental to the foregoing as the Sponsor or an
Administrator may from time to time determine is necessary or advisable to give
effect to the terms of this Declaration for the benefit of the Holders (without
consideration of the effect of any such action on any particular
Holder);
  (K)  to
establish a record date with respect to all actions to be taken hereunder that
require a record date be established, including Distributions, voting rights,
redemptions and exchanges, and to issue relevant notices to the Holders of
Capital Securities and Holders of Common Securities as to such actions and
applicable record dates;
  (L)  to duly
prepare and file on behalf of the Trust all applicable tax returns and tax
information reports that are required to be filed with respect to the
Trust;
  (M)  to
negotiate the terms of, and the execution and delivery of, the Purchase
Agreement and any subscription agreements or other agreements providing for the
sale of the Capital Securities or resale by the Initial Purchaser and other
related agreements;
  (N)  to employ
or otherwise engage employees, agents (who may be designated as officers with
titles), managers, contractors, advisors, attorneys and consultants and pay
reasonable compensation for such services;
  (O)  to incur
expenses that are necessary or incidental to carry out any of the purposes of
the Trust;
  (P)  to give
the certificate required by § 314(a)(4) of the Trust Indenture Act to the
Institutional Trustee, which certificate may be executed by an Administrator;
and
  (Q)  to take
all action that may be necessary or appropriate for the preservation and the
continuation of the Trust’s valid existence, rights, franchises and privileges
as a statutory trust under the laws of each jurisdiction (other than the State
of Delaware) in which such existence is necessary to protect the limited
liability of the Holders of the Capital Securities or to enable the Trust to
effect the purposes for which the Trust was created.
  (ii)  As among
the Trustees and the Administrators, the Institutional Trustee shall have the
power, duty and authority, and is hereby authorized, to act on behalf of the
Trust with respect to the following matters:
  (A)  the
establishment of the Property Account;
  (B)  the
receipt of the Debentures;
  10
 (C)  the
collection of interest, principal and any other payments made in respect of the
Debentures in the Property Account;
  (D)  the
distribution through the Paying Agent of amounts owed to the Holders in respect
of the Securities;
  (E)  the
exercise of all of the rights, powers and privileges of a holder of the
Debentures;
  (F)  the
sending of notices of default and other information regarding the Securities and
the Debentures to the Holders in accordance with this Declaration;
  (G)  the
distribution of the Trust Property in accordance with the terms of this
Declaration;
  (H)  to the
extent provided in this Declaration, the winding up of the affairs of and
liquidation of the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State of
Delaware;
  (I)  after any
Event of Default (of which the Institutional Trustee has knowledge (as provided
in Section 2.10(m) hereof)) ( provided , that
such Event of Default is not by or with respect to the Institutional Trustee),
the taking of any action incidental to the foregoing as the Institutional
Trustee may from time to time determine is necessary or advisable to give effect
to the terms of this Declaration and protect and conserve the Trust Property for
the benefit of the Holders (without consideration of the effect of any such
action on any particular Holder);
  (J)  to take
all action that may be necessary or appropriate for the preservation and the
continuation of the Trust’s valid existence, rights, franchises and privileges
as a statutory trust under the laws of the State of Delaware to protect the
limited liability of the Holders of the Capital Securities or to enable the
Trust to effect the purposes for which the Trust was created; and
  (K)  to
undertake any actions set forth in § 317(a) of the Trust Indenture
Act.
  (iii)  The
Institutional Trustee shall have the power and authority, and is hereby
authorized, to act on behalf of the Trust with respect to any of the duties,
liabilities, powers or the authority of the Administrators set forth in Section
2.6(a)(i)(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 Trustees or
Administrators acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the Administrators may cause the
Trust to (i) acquire any investments or engage in any activities not
authorized by this Declaration; (ii) sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Holders, except as expressly provided herein;
(iii) take any action that would cause (or in the case of the Institutional
Trustee, to the actual knowledge of a Responsible Officer would cause) the Trust
to fail or cease to qualify as a “grantor trust” for United States federal
income tax purposes; (iv) incur any indebtedness for borrowed money or
issue any other debt; or (v) take or consent to any action that would
result in the placement of a lien on any of the Trust Property. The
Institutional Trustee shall, at the sole cost and expense of the Trust subject
to reimbursement under Section 9.6(a), 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.
  11
 (c)  In
connection with the issuance and sale of the Capital Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect to, or
effect on behalf of the Trust, the following (and any actions taken by the
Sponsor in furtherance of the following prior to the date of this Declaration
are hereby ratified and confirmed in all respects):
  (i)  the
taking of any action necessary to obtain an exemption from the Securities
Act;
  (ii)  the
determination of the States in which to take appropriate action to qualify or
register for sale all or part of the Capital Securities and the determination of
any and all such acts, other than actions which must be taken by or on behalf of
the Trust, and the advisement of and direction to the Trustees of actions they
must take on behalf of the Trust, and the preparation for execution and filing
of any documents to be executed and filed by the Trust or on behalf of the
Trust, as the Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such States in connection with the sale of the Capital
Securities; and
  (iii)  the
taking of any other actions necessary or desirable to carry out any of the
foregoing activities.
  (d)  Notwithstanding
anything herein to the contrary, the Administrators, the Institutional Trustee
and the Holders of a Majority in liquidation amount of the Common Securities are
authorized and directed to conduct the affairs of the Trust and to operate the
Trust so that (i) the Trust will not be deemed to be an “investment
company” required to be registered under the Investment Company Act (in the case
of the Institutional Trustee, to the actual knowledge of a Responsible Officer);
(ii) the Trust will not fail to be classified as a grantor trust for United
States federal income tax purposes (in the case of the Institutional Trustee, to
the actual knowledge of a Responsible Officer); and (iii) the Trust will
not take any action inconsistent with the treatment of the Debentures as
indebtedness of the Debenture Issuer for United States federal income tax
purposes (in the case of the Institutional Trustee, to the actual knowledge of a
Responsible Officer). In this connection, the Institutional Trustee, the
Administrators and the Holders of a Majority in liquidation amount of the Common
Securities are authorized to take any action, not inconsistent with applicable
laws or this Declaration, as amended from time to time, that each of the
Institutional Trustee, the Administrators and such Holders determine in their
discretion to be necessary or desirable for such purposes, even if such action
adversely affects the interests of the Holders of the Capital
Securities.
  (e)  All
expenses incurred by the Administrators or the Trustees pursuant to this Section
2.6 shall be reimbursed by the Sponsor, and the Trustees shall have no
obligations with respect to such expenses.
  (f)  The
assets of the Trust shall consist of the Trust Property.
  12
 (g)  Legal
title to all Trust Property shall be vested at all times in the Institutional
Trustee (in its capacity as such) and shall be held and administered by the
Institutional Trustee for the benefit of the Trust in accordance with this
Declaration.
  (h)  If the
Institutional Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Declaration and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the
Institutional Trustee or to such Holder, then and in every such case the
Sponsor, the Institutional Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Institutional Trustee and the Holders shall continue as though no such
proceeding had been instituted.
  SECTION
2.7.  Prohibition
of Actions by the Trust and the Trustees .
  The Trust
shall not, and the Institutional Trustee and the Administrators shall not, and
the Administrators shall cause the Trust not to, engage in any activity other
than as required or authorized by this Declaration. In particular, the Trust
shall not, and the Institutional Trustee and the Administrators shall not cause
the Trust to:
  (a)  invest
any proceeds received by the Trust from holding the Debentures, but shall
distribute all such proceeds to Holders of the Securities pursuant to the terms
of this Declaration and of the Securities;
  (b)  acquire
any assets other than as expressly provided herein;
  (c)  possess
Trust Property for other than a Trust purpose;
  (d)  make any
loans or incur any indebtedness other than loans represented by the
Debentures;
  (e)  possess
any power or otherwise act in such a way as to vary the Trust Property or the
terms of the Securities;
  (f)  issue any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Securities; or
  (g)  other
than as provided in this Declaration (including Annex I), (i) direct the time,
method and place of exercising any trust or power conferred upon the Debenture
Trustee with respect to the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and payable,
or (iv) consent to any amendment, modification or termination of the Indenture
or the Debentures where such consent shall be required unless the Trust shall
have received a written opinion of counsel experienced in such matters to the
effect that such amendment, modification or termination will not cause the Trust
to cease to be classified as a grantor trust for United States federal income
tax purposes.
  SECTION
2.8.  Powers
and Duties of the Institutional Trustee .
  (a)  The legal
title to the Debentures shall be owned by and held of record in the name of the
Institutional Trustee in trust for the benefit of the Trust. The right, title
and interest of the Institutional Trustee to the Debentures shall vest
automatically in each Person who may hereafter be appointed as Institutional
Trustee in accordance with Section 4.7. Such vesting and cessation of title
shall be effective whether or not conveyancing documents with regard to the
Debentures have been executed and delivered.
  13
 (b)  The
Institutional Trustee shall not transfer its right, title and interest in the
Debentures to the Administrators or to the Delaware Trustee.
  (c)  The
Institutional Trustee shall:
  (i)  establish
and maintain a segregated non-interest bearing trust account (the “Property
Account”) in the United States (as defined in Treasury Regulations §
301.7701-7), in the name of and under the exclusive control of the Institutional
Trustee, and maintained in the Institutional Trustee’s trust department, on
behalf of the Holders of the Securities and, upon the receipt of payments of
funds made in respect of the Debentures held by the Institutional Trustee,
deposit such funds into the Property Account and make payments to the Holders of
the Capital Securities and Holders of the Common Securities from the Property
Account in accordance with Section 5.1. Funds in the Property Account shall be
held uninvested until disbursed in accordance with this
Declaration;
  (ii)  engage in
such ministerial activities as shall be necessary or appropriate to effect the
redemption of the Capital Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
  (iii)  upon
written notice of distribution issued by the Administrators in accordance with
the terms of the Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the Debentures to Holders
of Securities upon the occurrence of certain circumstances pursuant to the terms
of the Securities.
  (d)  The
Institutional Trustee shall take all actions and perform such duties as may be
specifically required of the Institutional Trustee pursuant to the terms of the
Securities.
  (e)  The
Institutional Trustee may bring or defend, pay, collect, compromise, arbitrate,
resort to legal action with respect to, or otherwise adjust claims or demands of
or against, the Trust (a “Legal Action”) which arise out of or in connection
with an Event of Default of which a Responsible Officer of the Institutional
Trustee has actual knowledge or the Institutional Trustee’s duties and
obligations under this Declaration or the Trust Indenture Act; provided , however , that if
an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable
(or in the case of redemption, on the redemption date), then a Holder of the
Capital Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Capital
Securities of such Holder (a “Direct Action”) on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the Holders of the Common Securities will be subrogated to the rights
of such Holder of the Capital Securities to the extent of any payment made by
the Debenture Issuer to such Holder of the Capital Securities in such Direct
Action; provided , however , that a
Holder of the Common Securities may exercise such right of subrogation only if
no Event of Default with respect to the Capital Securities has occurred and is
continuing.
  (f)  The
Institutional Trustee shall continue to serve as a Trustee until
either:
  14
 (i)  the Trust
has been completely liquidated and the proceeds of the liquidation distributed
to the Holders of the Securities pursuant to the terms of the Securities and
this Declaration (including Annex I); or
  (ii)  a
Successor Institutional Trustee has been appointed and has accepted that
appointment in accordance with Section 4.7.
  (g)  The
Institutional Trustee shall have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the Indenture and, if
an Event of Default occurs and is continuing, the Institutional Trustee may, for
the benefit of Holders of the Securities, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this Declaration
(including Annex I) and the terms of the Securities.
  (h)  The
Institutional Trustee must exercise the powers set forth in this Section 2.8 in
a manner that is consistent with the purposes and functions of the Trust set out
in Section 2.3, and the Institutional Trustee shall not take any action that is
inconsistent with the purposes and functions of the Trust set out in Section
2.3.
  SECTION
2.9.  Certain
Duties and Responsibilities of the Trustees and the
Administrators .
  (a)  The
Institutional Trustee, before the occurrence of any Event of Default (of which
the Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration and no implied covenants shall be read into this Declaration against
the Institutional Trustee. In case an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof)),
has occurred (that has not been cured or waived pursuant to Section 6.7), the
Institutional Trustee shall exercise such of the rights and powers vested in it
by this Declaration, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
  (b)  The
duties and responsibilities of the Trustees and the Administrators shall be as
provided by this Declaration and, in the case of the Institutional Trustee, by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Declaration shall require any Trustee or Administrator to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every
provision of this Declaration relating to the conduct or affecting the liability
of or affording protection to the Trustees or the Administrators shall be
subject to the provisions of this Article. Nothing in this Declaration shall be
construed to release a Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct. Nothing in this
Declaration shall be construed to release an Administrator from liability for
its own gross negligent action, its own gross negligent failure to act, or its
own willful misconduct. To the extent that, at law or in equity, a Trustee or an
Administrator has duties and liabilities relating to the Trust or to the
Holders, such Trustee or Administrator shall not be liable to the Trust or to
any Holder for such Trustee’s or Administrator’s good faith reliance on the
provisions of this Declaration. The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of the Administrators or
the Trustees otherwise existing at law or in equity, are agreed by the Sponsor
and the Holders to replace such other duties and liabilities of the
Administrators or the Trustees.
  15
 (c)  All
payments made by the Institutional Trustee or a Paying Agent in respect of the
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Institutional Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Holder, by its
acceptance of a Security, agrees that it will look solely to the revenue and
proceeds from the Trust Property to the extent legally available for
distribution to it as herein provided and that the Trustees and the
Administrators are not personally liable to it for any amount distributable in
respect of any Security or for any other liability in respect of any Security.
This Section 2.9(c) does not limit the liability of the Trustees expressly set
forth elsewhere in this Declaration or, in the case of the Institutional
Trustee, in the Trust Indenture Act.
  (d)  No
provision of this Declaration shall be construed to relieve the Institutional
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct with respect to matters that are within
the authority of the Institutional Trustee under this Declaration, except
that:
  (i)  the
Institutional Trustee shall not be liable for any error or judgment made in good
faith by an Authorized Officer of the Institutional Trustee, unless it shall be
proved that the Institutional Trustee was negligent in ascertaining the
pertinent facts;
  (ii)  the
Institutional Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a Majority in liquidation amount of the Capital
Securities or the Common Securities, as applicable, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Institutional Trustee, or exercising any trust or power conferred upon the
Institutional Trustee under this Declaration;
  (iii)  the
Institutional Trustee’s sole duty with respect to the custody, safe keeping and
physical preservation of the Debentures and the Property Account shall be to
deal with such property in a similar manner as the Institutional Trustee deals
with similar property for its own account, subject to the protections and
limitations on liability afforded to the Institutional Trustee under this
Declaration and the Trust Indenture Act;
  (iv)  the
Institutional Trustee shall not be liable for any interest on any money received
by it except as it may otherwise agree in writing with the Sponsor; and money
held by the Institutional Trustee need not be segregated from other funds held
by it except in relation to the Property Account maintained by the Institutional
Trustee pursuant to Section 2.8(c)(i) and except to the extent otherwise
required by law; and
  (v)  the
Institutional Trustee shall not be responsible for monitoring the compliance by
the Administrators or the Sponsor with their respective duties under this
Declaration, nor shall the Institutional Trustee be liable for any default or
misconduct of the Administrators or the Sponsor.
  SECTION
2.10.  Certain
Rights of Institutional Trustee . Subject
to the provisions of Section 2.9:
  (a)  the
Institutional Trustee may conclusively rely and shall fully be protected in
acting or refraining from acting in good faith upon any resolution, written
opinion of counsel, certificate, written representation of a Holder or
transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
appraisal, bond, debenture, note, other evidence of indebtedness or other paper
or document believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties;
  16
 (b)  if
(i) in performing its duties under this Declaration, the Institutional
Trustee is required to decide between alternative courses of action,
(ii) in construing any of the provisions of this Declaration, the
Institutional Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein, or (iii) the Institutional Trustee is unsure
of the application of any provision of this Declaration, then, except as to any
matter as to which the Holders of Capital Securities are entitled to vote under
the terms of this Declaration, the Institutional Trustee may deliver a notice to
the Sponsor requesting the Sponsor’s opinion as to the course of action to be
taken and the Institutional Trustee shall take such action, or refrain from
taking such action, as the Institutional Trustee in its sole discretion shall
deem advisable and in the best interests of the Holders, in which event the
Institutional Trustee shall have no liability except for its own negligence or
willful misconduct;
  (c)  any
direction or act of the Sponsor or the Administrators contemplated by this
Declaration shall be sufficiently evidenced by an Officers’
Certificate;
  (d)  whenever
in the administration of this Declaration, the Institutional Trustee shall deem
it desirable that a matter be proved or established before undertaking,
suffering or omitting any action hereunder, the Institutional Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad
faith on its part, request and conclusively rely upon an Officers’ Certificate
which, upon receipt of such request, shall be promptly delivered by the Sponsor
or the Administrators;
  (e)  the
Institutional Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
  (f)  the
Institutional Trustee may consult with counsel of its selection (which counsel
may be counsel to the Sponsor or any of its Affiliates) and the advice of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon and in accordance with such advice; the Institutional Trustee
shall have the right at any time to seek instructions concerning the
administration of this Declaration from any court of competent
jurisdiction;
  (g)  the
Institutional Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Declaration at the request or direction of any of
the Holders pursuant to this Declaration, unless such Holders shall have offered
to the Institutional Trustee security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction; provided , that
nothing contained in this Section 2.10(g) shall be taken to relieve the
Institutional Trustee, upon the occurrence of an Event of Default (of which the
Institutional Trustee has knowledge (as provided in Section 2.10(m) hereof))
that has not been cured or waived, of its obligation to exercise the rights and
powers vested in it by this Declaration;
  (h)  the
Institutional Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Holders, but the Institutional
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
  17
 (i)  the
Institutional Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys and the Institutional Trustee shall not be responsible for any
misconduct or negligence on the part of, or for the supervision of, any such
agent or attorney appointed with due care by it hereunder;
  (j)  whenever
in the administration of this Declaration the Institutional Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Institutional Trustee
(i) may request instructions from the Holders of the Common Securities and
the Capital Securities, which instructions may be given only by the Holders of
the same proportion in liquidation amount of the Common Securities and the
Capital Securities as would be entitled to direct the Institutional Trustee
under the terms of the Common Securities and the Capital Securities in respect
of such remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and
(iii) shall be fully protected in acting in accordance with such
instructions;
  (k)  except as
otherwise expressly provided in this Declaration, the Institutional Trustee
shall not be under any obligation to take any action that is discretionary under
the provisions of this Declaration;
  (l)  when the
Institutional Trustee incurs expenses or renders services in connection with a
Bankruptcy Event, such expenses (including the fees and expenses of its counsel)
and the compensation for such services are intended to constitute expenses of
administration under any bankruptcy law or law relating to creditors rights
generally;
  (m)  the
Institutional Trustee shall not be charged with knowledge of an Event of Default
unless a Responsible Officer of the Institutional Trustee has actual knowledge
of such event or the Institutional Trustee receives written notice of such event
from any Holder, except with respect to an Event of Default pursuant to Sections
5.01(c), 5.01(d) or 5.01(e) of the Indenture (other than an Event of Default
resulting from the default in the payment of Additional Amounts or premium, if
any, if the Institutional Trustee does not have actual knowledge or written
notice that such payment is due and payable), of which the Institutional Trustee
shall be deemed to have knowledge;
  (n)  any
action taken by the Institutional Trustee or its agents hereunder shall bind the
Trust and the Holders of the Securities, and the signature of the Institutional
Trustee or its agents alone shall be sufficient and effective to perform any
such action and no third party shall be required to inquire as to the authority
of the Institutional Trustee to so act or as to its compliance with any of the
terms and provisions of this Declaration, both of which shall be conclusively
evidenced by the Institutional Trustee or its agent taking such action;
and
  (o)  no
provision of this Declaration shall be deemed to impose any duty or obligation
on the Institutional Trustee to perform any act or acts or exercise any right,
power, duty or obligation conferred or imposed on it, in any jurisdiction in
which it shall be illegal, or in which the Institutional Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Institutional Trustee shall be
construed to be a duty.
  SECTION
2.11.  Delaware
Trustee .
Notwithstanding any other provision of this Declaration other than Section 4.2,
the Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of any of the
Trustees or the Administrators described in this Declaration (except as may be
required under the Statutory Trust Act). Except as set forth in Section 4.2, the
Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of § 3807 of the Statutory Trust Act.
  18
 SECTION
2.12.  Execution
of Documents . Unless
otherwise determined in writing by the Institutional Trustee, and except as
otherwise required by the Statutory Trust Act, the Institutional Trustee, or any
one or more of the Administrators, as the case may be, is authorized to execute
and deliver on behalf of the Trust any documents, agreements, instruments or
certificates that the Trustees or the Administrators, as the case may be, have
the power and authority to execute pursuant to Section 2.6.
  SECTION
2.13.  Not
Responsible for Recitals or Issuance of Securities . The
recitals contained in this Declaration and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for
their correctness. The Trustees make no representations as to the value or
condition of the property of the Trust or any part thereof. The Trustees make no
representations as to the validity or sufficiency of this Declaration, the
Debentures or the Securities.
  SECTION
2.14.  Duration
of Trust . The
Trust, unless dissolved pursuant to the provisions of Article VII hereof, shall
have existence for thirty-five (35) years from December 16, 2004.
  SECTION
2.15.  Mergers .
  (a)  The Trust
may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to any corporation or other Person, except as described in this Section 2.15 and
except with respect to the distribution of Debentures to Holders of Securities
pursuant to Section 7.1(a)(iv) of the Declaration or Section 4 of Annex
I.
  (b)  The Trust
may, with the consent of the Administrators (which consent will not be
unreasonably withheld) and without the consent of the Institutional Trustee, the
Delaware Trustee or the Holders of the Capital Securities, consolidate,
amalgamate, merge with or into, or be replaced by, or convey, transfer or lease
its properties and assets as an entirety or substantially as an entirety to a
trust organized as such under the laws of any state; provided ,
that:
  (i)  if the
Trust is not the survivor, such successor entity (the “Successor Entity”)
either:
  (A)  expressly
assumes all of the obligations of the Trust under the Securities;
or
  (B)  substitutes
for the Securities other securities having substantially the same terms as the
Securities (the “Successor Securities”) so that the Successor Securities rank
the same as the Securities rank with respect to Distributions and payments upon
Liquidation, redemption and otherwise;
  (ii)  the
Sponsor expressly appoints, as the holder of the Debentures, a trustee of the
Successor Entity that possesses the same powers and duties as the Institutional
Trustee;
  (iii)  the
Capital Securities or any Successor Securities (excluding any securities
substituted for the Common Securities) are listed or quoted, or any Successor
Securities will be listed or quoted upon notification of issuance, on any
national securities exchange or with another organization on which the Capital
Securities are then listed or quoted, if any;
  19
 (iv)  such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Capital Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, if the
Capital Securities are then rated;
  (v)  such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of such Holders’ interests in the
Successor Entity as a result of such merger, consolidation, amalgamation or
replacement);
  (vi)  such
Successor Entity has a purpose substantially identical to that of the
Trust;
  (vii)  prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Trust has received a written opinion of a nationally recognized
independent counsel to the Trust experienced in such matters to the effect
that:
  (A)  such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Securities (including any Successor Securities) in any material respect
(other than with respect to any dilution of the Holders’ interests in the
Successor Entity);
  (B)  following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Trust nor the Successor Entity will be required to register
as an Investment Company; and
  (C)  following
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Trust (or the Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax purposes;
  (viii)  the
Sponsor guarantees the obligations of such Successor Entity under the Successor
Securities to the same extent provided by the Guarantee, the Debentures and this
Declaration; and
  (ix)  prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Institutional Trustee shall have received an Officers’ Certificate of
the Administrators and an opinion of counsel, each to the effect that all
conditions precedent of this paragraph (b) to such transaction have been
satisfied.
  (c)  Notwithstanding
Section 2.15(b), the Trust shall not, except with the consent of Holders of 100%
in liquidation amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by, or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to, any other Person or permit
any other Person to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
  20
 ARTICLE
III
  
  SPONSOR
  SECTION
3.1.  Sponsor’s
Purchase of Common Securities . On the
Closing Date, the Sponsor will purchase all of the Common Securities issued by
the Trust, in an amount at least equal to 3% of the capital of the Trust, at the
same time as the Capital Securities are sold.
  SECTION
3.2.  Responsibilities
of the Sponsor . In
connection with the issue and sale of the Capital Securities, the Sponsor shall
have the exclusive right and responsibility and sole decision to engage in, or
direct the Administrators to engage in, the following activities:
  (a)  determining
the States in which to take appropriate action to qualify or register for sale
all or part of the Capital Securities and doing any and all such acts, other
than actions which must be taken by the Trust, and advising the Trust of actions
it must take, and preparing for execution and filing any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States;
  (b)  preparing
for filing and requesting the Administrators to cause the filing by the Trust,
as may be appropriate, of an application to the PORTAL system, for listing or
quotation upon notice of issuance of any Capital Securities, as requested by the
Holders of not less than a Majority in liquidation amount of the Capital
Securities; and
  (c)  negotiating
the terms of, and the execution and delivery, on behalf of the Trust, of the
Purchase Agreement and any subscription agreements or other agreements providing
for the sale of the Capital Securities or resale by the Initial Purchaser and
other related agreements.
  ARTICLE
IV
  
  TRUSTEES
AND ADMINISTRATORS
  SECTION
4.1.  Number
of Trustees . The
number of Trustees initially shall be two, and:
  (a)  at any
time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees; and
  (b)  after the
issuance of any Securities, the number of Trustees may be increased or decreased
by vote of the Holders of a Majority in liquidation amount of the Common
Securities voting as a class at a meeting of the Holders of the Common
Securities; provided , however , that
there shall be a Delaware Trustee if required by Section 4.2; and there shall
always be one Trustee who shall be the Institutional Trustee, and such Trustee
may also serve as Delaware Trustee if it meets the applicable requirements, in
which case Section 2.11 shall have no application to such entity in its capacity
as Institutional Trustee.
  SECTION
4.2.  Delaware
Trustee . If
required by the Statutory Trust Act, one Trustee (the “Delaware Trustee”) shall
be:
  21
 (a)  a natural
person who is a resident of the State of Delaware; or
  (b)  if not a
natural person, an entity which is organized under the laws of the United States
or any state thereof or the District of Columbia, has its principal place of
business in the State of Delaware, and otherwise meets the requirements of
applicable law, including §3807 of the Statutory Trust Act.
  SECTION
4.3.  Institutional
Trustee; Eligibility .
  (a)  There
shall at all times be one Trustee that shall act as Institutional Trustee which
shall:
  (i)  not be an
Affiliate of the Sponsor;
  (ii)  not offer
or provide credit or credit enhancement to the Trust; and
  (iii)  be a
banking corporation or national association organized and doing business under
the laws of the United States of America or any state thereof or of the District
of Columbia and authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least fifty million U.S. dollars
($50,000,000), and subject to supervision or examination by federal, state or
District of Columbia authority. If such corporation or national association
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then
for the purposes of this Section 4.3(a)(iii), the combined capital and surplus
of such corporation or national association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
  (b)  If at any
time the Institutional Trustee shall cease to be eligible to so act under
Section 4.3(a), the Institutional Trustee shall immediately resign in the manner
and with the effect set forth in Section 4.7.
  (c)  If the
Institutional Trustee has or shall acquire any “conflicting interest” within the
meaning of § 310(b) of the Trust Indenture Act, the Institutional Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to this Declaration.
  (d)  The
initial Institutional Trustee shall be Wells Fargo Bank, National
Association.
  SECTION
4.4.  Certain
Qualifications of the Delaware Trustee Generally . The
Delaware Trustee shall be a U.S. Person and either a natural person who is at
least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
  SECTION
4.5.  Administrators . Each
Administrator shall be a U.S. Person. There shall at all times be at least one
Administrator. Except where a requirement for action by a specific number of
Administrators is expressly set forth in this Declaration and except with
respect to any action the taking of which is the subject of a meeting of the
Administrators, any action required or permitted to be taken by the
Administrators may be taken by, and any power of the Administrators may be
exercised by, or with the consent of, any one such Administrator acting
alone.
  SECTION
4.6.  Initial
Delaware Trustee . The
initial Delaware Trustee shall be Wells
Fargo Delaware Trust Company .
  SECTION
4.7.  Appointment,
Removal and Resignation of the Trustees and the Administrators .
  22
 (a)  No
resignation or removal of any Trustee (the “Relevant Trustee”) and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of this
Section 4.7.
  (b)  Subject
to Section 4.7(a), a Relevant Trustee may resign at any time by giving written
notice thereof to the Holders of the Securities and by appointing a successor
Relevant Trustee. Upon the resignation of the Institutional Trustee, the
Institutional Trustee shall appoint a successor by requesting from at least
three Persons meeting the eligibility requirements their expenses and charges to
serve as the successor Institutional Trustee on a form provided by the
Administrators, and selecting the Person who agrees to the lowest expense and
charges (the “Successor Institutional Trustee”). If the instrument of acceptance
by the successor Relevant Trustee required by this Section 4.7 shall not have
been delivered to the Relevant Trustee within 60 days after the giving of such
notice of resignation or delivery of the instrument of removal, the Relevant
Trustee may petition, at the expense of the Trust, any federal, state or
District of Columbia court of competent jurisdiction for the appointment of a
successor Relevant Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Relevant Trustee. The
Institutional Trustee shall have no liability for the selection of such
successor pursuant to this Section 4.7.
  (c)  Unless an
Event of Default shall have occurred and be continuing, any Trustee may be
removed at any time by an act of the Holders of a Majority in liquidation amount
of the Common Securities. If any Trustee shall be so removed, the Holders of the
Common Securities, by act of the Holders of a Majority in liquidation amount of
the Common Securities delivered to the Relevant Trustee, shall promptly appoint
a successor Relevant Trustee, and such successor Trustee shall comply with the
applicable requirements of this Section 4.7. If an Event of Default shall have
occurred and be continuing, the Institutional Trustee or the Delaware Trustee,
or both of them, may be removed by the act of the Holders of a Majority in
liquidation amount of the Capital Securities, delivered to the Relevant Trustee
(in its individual capacity and on behalf of the Trust). If any Trustee shall be
so removed, the Holders of Capital Securities, by act of the Holders of a
Majority in liquidation amount of the Capital Securities then outstanding
delivered to the Relevant Trustee, shall promptly appoint a successor Relevant
Trustee or Trustees, and such successor Trustee shall comply with the applicable
requirements of this Section 4.7. If no successor Relevant Trustee shall have
been so appointed by the Holders of a Majority in liquidation amount of the
Capital Securities and accepted appointment in the manner required by this
Section 4.7 within 30 days after delivery of an instrument of removal, the
Relevant Trustee or any Holder who has been a Holder of the Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any federal, state or District of Columbia court of competent
jurisdiction for the appointment of a successor Relevant Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper, appoint
a successor Relevant Trustee or Trustees.
  (d)  The
Institutional Trustee shall give notice of each resignation and each removal of
a Trustee and each appointment of a successor Trustee to all Holders and to the
Sponsor. Each notice shall include the name of the successor Relevant Trustee
and the address of its Corporate Trust Office if it is the Institutional
Trustee.
  (e)  Notwithstanding
the foregoing or any other provision of this Declaration, in the event a
Delaware Trustee who is a natural person dies or is adjudged by a court to have
become incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by the Institutional Trustee following
the procedures in this Section 4.7 (with the successor being a Person who
satisfies the eligibility requirement for a Delaware Trustee set forth in this
Declaration) (the “Successor Delaware Trustee”).
  23
 (f)  In case
of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee with respect to the
Securities shall execute and deliver an amendment hereto wherein each successor
Relevant Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Relevant Trustee all the rights, powers, trusts and
duties of the retiring Relevant Trustee with respect to the Securities and the
Trust and (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 Relevant Trustee, it being understood that nothing herein
or in such amendment shall constitute such Relevant Trustees co-trustees and
upon the execution and delivery of such amendment the resignation or removal of
the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder with
respect to the Securities and the Trust subject to the payment of all unpaid
fees, expenses and indemnities of such retiring Relevant Trustee.
  (g)  No
Institutional Trustee or Delaware Trustee shall be liable for the acts or
omissions to act of any Successor Institutional Trustee or Successor Delaware
Trustee, as the case may be.
  (h)  The
Holders of the Capital Securities will have no right to vote to appoint, remove
or replace the Administrators, which voting rights are vested exclusively in the
Holders of the Common Securities.
  (i)  Any
successor Delaware Trustee shall file an amendment to the Certificate of Trust
with the Secretary of State of the State of Delaware identifying the name and
principal place of business of such Delaware Trustee in the State of
Delaware.
  SECTION
4.8.  Vacancies
Among Trustees . If a
Trustee ceases to hold office for any reason and the number of Trustees is not
reduced pursuant to Section 4.1, or if the number of Trustees is increased
pursuant to Section 4.1, a vacancy shall occur. A resolution certifying the
existence of such vacancy by the Trustees or, if there are more than two, a
majority of the Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance with
Section 4.7.
  SECTION
4.9.  Effect
of Vacancies . The
death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust or terminate this Declaration.
Whenever a vacancy in the number of Trustees shall occur, until such vacancy is
filled by the appointment of a Trustee in accordance with Section 4.7, the
Institutional Trustee shall have all the powers granted to the Trustees and
shall discharge all the duties imposed upon the Trustees by this
Declaration.
  SECTION
4.10.  Meetings
of the Trustees and the Administrators .
Meetings of the Trustees or the Administrators shall be held from time to time
upon the call of any Trustee or Administrator, as applicable. Regular meetings
of the Trustees and the Administrators, respectively, may be in person in the
United States or by telephone, at a place (if applicable) and time fixed by
resolution of the Trustees or the Administrators, as applicable. Notice of any
in-person meetings of the Trustees or the Administrators shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Trustees or the Administrators or any committee
thereof shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of a Trustee or an Administrator, as the case may be, at a meeting
shall constitute a waiver of notice of such meeting except where a Trustee or an
Administrator, as the case may be, attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Trustees or the Administrators, as the case may
be, may be taken at a meeting by vote of a majority of the Trustees or the
Administrators present (whether in person or by telephone) and eligible to vote
with respect to such matter; provided , that,
in the case of the Administrators, a Quorum is present, or without a meeting by
the unanimous written consent of the Trustees or the Administrators, as the case
may be. Meetings of the Trustees and the Administrators together shall be held
from time to time upon the call of any Trustee or Administrator.
  24
 SECTION
4.11.  Delegation
of Power .
  (a)  Any
Trustee or any Administrator, as the case may be, may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 that is a U.S. Person his or her power for the purpose of executing
any documents, instruments or other writings contemplated in Section
2.6.
  (b)  The
Trustees shall have power to delegate from time to time to such of their number
or to any officer of the Trust that is a U.S. Person, the doing of such things
and the execution of such instruments or other writings either in the name of
the Trust or the names of the Trustees or otherwise as the Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
  SECTION
4.12.  Merger,
Conversion, Consolidation or Succession to Business . Any
Person into which the Institutional Trustee or the Delaware Trustee, as the case
may be, may be merged or converted or with which either may be consolidated, or
any Person resulting from any merger, conversion or consolidation to which the
Institutional Trustee or the Delaware Trustee, as the case may be, shall be a
party, or any Person succeeding to all or substantially all the corporate trust
business of the Institutional Trustee or the Delaware Trustee, as the case may
be, shall be the successor of the Institutional Trustee or the Delaware Trustee,
as the case may be, hereunder, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, provided such Person
shall be otherwise qualified and eligible under this Article and, provided , further , that
such Person shall file an amendment to the Certificate of Trust with the
Secretary of State of the State of Delaware as contemplated in Section
4.7(i).
  ARTICLE
V
  
  DISTRIBUTIONS
  SECTION
5.1.  Distributions . Holders
shall receive Distributions in accordance with the applicable terms of the
relevant Holder’s Securities. Distributions shall be made on the Capital
Securities and the Common Securities in accordance with the preferences set
forth in their respective terms. If and to the extent that the Debenture Issuer
makes a payment of interest (including any Additional Amounts or Deferred
Interest) and/or principal on the Debentures held by the Institutional Trustee
(the amount of any such payment being a “Payment Amount”), the Institutional
Trustee shall and is directed, to the extent funds are available in the Property
Account for that purpose, to make a distribution (a “Distribution”) of the
Payment Amount to Holders. For the avoidance of doubt, funds in the Property
Account shall not be distributed to Holders to the extent of any taxes payable
by the Trust, in the case of withholding taxes, as determined by the
Institutional Trustee or any Paying Agent and, in the case of taxes other than
withholding taxes, as determined by the Administrators in a written notice to
the Institutional Trustee.
  25
 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, subject to Section 8.2, evidenced by a certificate substantially in
the form of Exhibit A-1, representing undivided beneficial interests in the
assets of the Trust and having such terms as are set forth in Annex I (the
“Capital Securities”), and one series of common securities, evidenced by a
certificate substantially in the form of Exhibit A-2, representing undivided
beneficial interests in the assets of the Trust and having such terms as are set
forth in Annex I (the “Common Securities”). The Trust shall issue no
securities or other interests in the assets of the Trust other than the Capital
Securities and the Common Securities. The Capital Securities rank *pari
passu* and
payment thereon shall be made Pro Rata with the Common Securities except that,
where an Event of Default has occurred and is continuing, the rights of Holders
of the Common Securities to payment in respect of Distributions and payments
upon liquidation, redemption and otherwise are subordinated to the rights to
payment of the Holders of the Capital Securities.
  (b)  The
Certificates shall be signed on behalf of the Trust by one or more
Administrators. Such signature shall be the facsimile or manual signature of any
Administrator. In case any Administrator of the Trust who shall have signed any
of the Securities shall cease to be such Administrator before the Certificates
so signed shall be delivered by the Trust, such Certificates nevertheless may be
delivered as though the person who signed such Certificates had not ceased to be
such Administrator. Any Certificate may be signed on behalf of the Trust by such
person who, at the actual date of execution of such Security, shall be an
Administrator of the Trust, although at the date of the execution and delivery
of the Declaration any such person was not such an Administrator. A Capital
Security shall not be valid until authenticated by the manual signature of an
Authorized Officer of the Institutional Trustee. Such signature shall be
conclusive evidence that the Capital Security has been authenticated under this
Declaration. Upon written order of the Trust signed by one Administrator, the
Institutional Trustee shall authenticate the Capital Securities for original
issue. The Institutional Trustee may appoint an authenticating agent that is a
U.S. Person acceptable to the Trust to authenticate the Capital Securities. A
Common Security need not be so authenticated and shall be valid upon execution
by one or more Administrators.
  (c)  The
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, and
each Holder thereof shall be entitled to the benefits provided by this
Declaration.
  (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.  Paying
Agent, Transfer Agent, Calculation Agent and Registrar .
  26
 (a)  The Trust
shall maintain in Wilmington, Delaware, an office or agency where the Securities
may be presented for payment (the “Paying Agent”), and an office or agency where
Securities may be presented for registration of transfer or exchange (the
“Transfer Agent”). The Trust shall keep or cause to be kept at such office or
agency a register for the purpose of registering Securities and transfers and
exchanges of Securities, such register to be held by a registrar (the
“Registrar”). The Administrators may appoint the Paying Agent, the Registrar and
the Transfer Agent, and may appoint one or more additional Paying Agents, one or
more co-Registrars, or one or more co-Transfer Agents in such other locations as
it shall determine. The term “Paying Agent” includes any additional Paying
Agent, the term “Registrar” includes any additional Registrar or co-Registrar
and the term “Transfer Agent” includes any additional Transfer Agent or
co-Transfer Agent. The Administrators may change any Paying Agent, Transfer
Agent or Registrar at any time without prior notice to any Holder. The
Administrators shall notify the Institutional Trustee of the name and address of
any Paying Agent, Transfer Agent and Registrar not a party to this Declaration.
The Administrators hereby initially appoint the Institutional Trustee to act as
Paying Agent, Transfer Agent and Registrar for the Capital Securities and the
Common Securities at its Corporate Trust Office. The Institutional Trustee or
any of its Affiliates in the United States may act as Paying Agent, Transfer
Agent or Registrar.
  (b)  The Trust
shall also appoint a Calculation Agent, which shall determine the Coupon Rate in
accordance with the terms of the Securities. The Trust initially appoints the
Institutional Trustee as Calculation Agent.
  SECTION
6.3.  Form
and Dating .
  (a)  Subject
to Section 8.2, the Capital Securities and the Institutional Trustee’s
certificate of authentication thereon shall be substantially in the form of
Exhibit A-1, and the Common Securities shall be substantially in the form of
Exhibit A-2, each of which is hereby incorporated in and expressly made a
part of this Declaration. Certificates may be typed, printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrators, as conclusively evidenced by their execution thereof. The
Securities may have letters, numbers, notations or other marks of identification
or designation and such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage ( provided , that
any such notation, legend or endorsement is in a form acceptable to the
Sponsor). The Trust at the direction of the Sponsor shall furnish any such
legend not contained in Exhibit A-1 to the Institutional Trustee in writing.
Each Capital Security shall be dated the date of its authentication. The terms
and provisions of the Securities set forth in Annex I and, subject to Section
8.2, the forms of Securities set forth in Exhibits A-1 and A-2 are part of
the terms of this Declaration and to the extent applicable, the Institutional
Trustee, the Delaware Trustee, the Administrators and the Sponsor, by their
execution and delivery of this Declaration, expressly agree to such terms and
provisions and to be bound thereby. Capital Securities will be issued only in
blocks having a stated liquidation amount of not less than
$100,000.
  (b)  Subject
to Section 8.2, the Capital Securities are being offered and sold by the Trust
pursuant to the Purchase Agreement in definitive form, registered in the name of
the Holder thereof, without coupons and 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 bona
fide purchaser, an Administrator on behalf of the Trust shall execute (and in
the case of a Capital Security Certificate, the Institutional Trustee shall
authenticate) and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 6.4,
the Registrar or the Administrators may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
  27
 SECTION
6.5.  Temporary
Securities . Until
definitive Securities are ready for delivery, the Administrators may prepare
and, in the case of the Capital Securities, the Institutional Trustee shall
authenticate, temporary Securities. Temporary Securities shall be substantially
in form of definitive Securities but may have variations that the Administrators
consider appropriate for temporary Securities. Without unreasonable delay, the
Administrators shall prepare and, in the case of the Capital Securities, the
Institutional Trustee shall authenticate definitive Securities in exchange for
temporary Securities.
  SECTION
6.6.  Cancellation . The
Administrators at any time may deliver Securities to the Institutional Trustee
for cancellation. The Registrar shall forward to the Institutional Trustee any
Securities surrendered to it for registration of transfer, redemption or
payment. The Institutional Trustee shall promptly cancel all Securities
surrendered for registration of transfer, payment, replacement or cancellation
and shall dispose of such canceled Securities as the Administrators direct. The
Administrators may not issue new Securities to replace Securities that have been
paid or that have been delivered to the Institutional Trustee for
cancellation.
  SECTION
6.7.  Rights
of Holders; Waivers of Past Defaults .
  (a)  The legal
title to the Trust Property is vested exclusively in the Institutional Trustee
(in its capacity as such) in accordance with Section 2.5, and the Holders shall
not have any right or title therein other than the undivided beneficial interest
in the assets of the Trust conferred by their Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below. The Securities shall be personal property
giving only the rights specifically set forth therein and in this Declaration.
The Securities shall have no, and the issuance of the Securities shall not be
subject to, preemptive or other similar rights and when issued and delivered to
Holders against payment of the purchase price therefor, the Securities will be
fully paid and nonassessable by the Trust.
  (b)  For so
long as any Capital Securities remain outstanding, if, upon an Acceleration
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 not less than a Majority in liquidation amount of the Capital
Securities then outstanding shall have the right to make such declaration by a
notice in writing to the Institutional Trustee, the Sponsor and the Debenture
Trustee.
  (c)  At any
time after a declaration of acceleration with respect to the Debentures has been
made and before a judgment or decree for payment of the money due has been
obtained by the Debenture Trustee as provided in the Indenture, if the
Institutional Trustee, subject to the provisions hereof, fails to annul any such
declaration and waive such default, the Holders of not less than a Majority in
liquidation amount of the Capital Securities, by written notice to the
Institutional Trustee, the Sponsor and the Debenture Trustee, may rescind and
annul such declaration and its consequences if:
  (i)  the
Sponsor has paid or deposited with the Debenture Trustee a sum sufficient to
pay:
  28
 (A)  all
overdue installments of interest on all of the Debentures,
  (B)  any
accrued Deferred Interest on all of the Debentures,
  (C)  all
payments on any Debentures that have become due otherwise than by such
declaration of acceleration and interest and Deferred Interest thereon at the
rate borne by the Debentures, and
  (D)  all sums
paid or advanced by the Debenture Trustee under the Indenture and the reasonable
compensation, documented expenses, disbursements and advances of the Debenture
Trustee and the Institutional Trustee, their agents and counsel;
and
  (ii)  all
Events of Default with respect to the Debentures, other than the non-payment of
the principal of the Debentures that has become due solely by such acceleration,
have been cured or waived as provided in Section 5.07 of the
Indenture.
  (d)  The
Holders of not less than a Majority in liquidation amount of the Capital
Securities may, on behalf of the Holders of all the Capital Securities, waive
any past default or Event of Default, except a default or Event of Default in
the payment of principal 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.
  (e)  Upon
receipt by the Institutional Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of any part of the
Capital Securities, a record date shall be established for determining Holders
of outstanding Capital Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Institutional Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided, that,
unless such declaration of acceleration, or rescission and annulment, as the
case may be, shall have become effective by virtue of the requisite percentage
having joined in such notice prior to the day that is 90 days after such record
date, such notice of declaration of acceleration, or rescission and annulment,
as the case may be, shall automatically and without further action by any Holder
be canceled and of no further effect. Nothing in this paragraph shall prevent a
Holder, or a proxy of a Holder, from giving, after expiration of such 90-day
period, a new written notice of declaration of acceleration, or rescission and
annulment thereof, as the case may be, that is identical to a written notice
that has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions of
this Section 6.7.
  (f)  Except as
otherwise provided in this Section 6.7, the Holders of not less than a Majority
in liquidation amount of the Capital Securities may, on behalf of the Holders of
all the Capital Securities, waive any past default or Event of Default and its
consequences. Upon such waiver, any such default or Event of Default shall cease
to exist, and any default or Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Declaration, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon.
  29
 ARTICLE
VII
  
  DISSOLUTION
AND TERMINATION OF TRUST
  SECTION
7.1.  Dissolution
and Termination of Trust .
  (a)  The Trust
shall dissolve on the first to occur of:
  (i)  unless
earlier dissolved, on December 16, 2039, the expiration of the term of the
Trust;
  (ii)  a
Bankruptcy Event with respect to the Sponsor, the Trust or the Debenture
Issuer;
  (iii)  other
than in connection with a merger, consolidation or similar transaction not
prohibited by the Indenture, this Declaration or the Guarantee, as the case may
be, the filing of a certificate of dissolution or its equivalent with respect to
the Sponsor or upon the revocation of the charter of the Sponsor and the
expiration of 90 days after the date of revocation without a reinstatement
thereof;
  (iv)  the
distribution of the Debentures to the Holders of the Securities, upon exercise
of the right of the Holders of all of the outstanding Common Securities to
dissolve the Trust as provided in Annex I hereto;
  (v)  the entry
of a decree of judicial dissolution of any Holder of the Common Securities, the
Sponsor, the Trust or the Debenture Issuer;
  (vi)  the date
when all of the Securities shall have been called for redemption and the amounts
necessary for redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities; or
  (vii)  before
the issuance of any Securities, with the consent of all of the Trustees and the
Sponsor.
  (b)  As soon
as is practicable after the occurrence of an event referred to in Section
7.1(a), and after satisfaction of liabilities to creditors of the Trust as
required by applicable law, including Section 3808 of the Statutory Trust Act,
and subject to the terms set forth in Annex I, the Institutional Trustee shall
terminate the Trust by filing a certificate of cancellation with the Secretary
of State of the State of Delaware.
  (c)  The
provisions of Section 2.9 and Article IX shall survive the termination of the
Trust.
  ARTICLE
VIII
  
  TRANSFER
OF INTERESTS
  SECTION
8.1.  General .
  (a)  Where
Capital Securities are presented to the Registrar 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 transfers and exchanges, the Trust shall issue and the
Institutional Trustee shall authenticate Capital Securities at the Registrar’s
request.
  30
 (b)  Upon
issuance of the Common Securities, the Sponsor shall acquire and retain
beneficial and record ownership of the Common Securities and, for so long as the
Securities remain outstanding, the Sponsor shall maintain 100% ownership of the
Common Securities; provided , however , that
any permitted successor of the Sponsor under the Indenture that is a U.S. Person
may succeed to the Sponsor’s ownership of the Common Securities.
  (c)  Capital
Securities may only be transferred, in whole or in part, in accordance with the
terms and conditions set forth in this Declaration and in the terms of the
Capital Securities. To the fullest extent permitted by applicable law, any
transfer or purported transfer of any Security not made in accordance with this
Declaration shall be null and void and will be deemed to be of no legal effect
whatsoever and any such transferee shall be deemed not to be the holder of such
Capital Securities for any purpose, including but not limited to the receipt of
Distributions on such Capital Securities, and such transferee shall be deemed to
have no interest whatsoever in such Capital Securities.
  (d)  The
Registrar shall provide for the registration of Securities and of transfers of
Securities, which will be effected without charge but only upon payment (with
such indemnity as the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon surrender for
registration of transfer of any Securities, the Registrar shall cause one or
more new Securities to be issued in the name of the designated transferee or
transferees. Any Security issued upon any registration of transfer or exchange
pursuant to the terms of this Declaration shall evidence the same Security and
shall be entitled to the same benefits under this Declaration as the Security
surrendered upon such registration of transfer or exchange. Every Security
surrendered for registration of transfer shall be accompanied by a written
instrument of transfer in form similar to Exhibit B or C attached hereto
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, as amended, revised or
supplemented from time to time.
  (e)  Neither
the Trust nor the Registrar shall be required (i) to issue, register the
transfer of, or exchange any Securities during a period beginning at the opening
of business 15 days before the day of any selection of Securities for redemption
and ending at the close of business on the earliest date on which the relevant
notice of redemption is deemed to have been given to all Holders of the
Securities to be redeemed, or (ii) to register the transfer or exchange of any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
  SECTION
8.2.  Transfer
Procedures and Restrictions .
  (a)  The
Capital Securities shall bear the Restricted Securities Legend (as defined
below), which shall not be removed unless there is delivered to the Trust such
satisfactory evidence, which may include an opinion of counsel, as may be
reasonably required by the Trust, that neither the legend nor the restrictions
on transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of the Securities Act or that such Securities are not
“restricted” within the meaning of Rule 144 under the Securities Act. Upon
provision of such satisfactory evidence, the Institutional Trustee, at the
written direction of the Trust, shall authenticate and deliver Capital
Securities that do not bear the Restricted Securities Legend.
  31
 (b)  When
Capital Securities are presented to the Registrar (x) to register the transfer
of such Capital Securities, or (y) to exchange such Capital Securities for an
equal number of Capital Securities represented by different Certificates, the
Registrar shall register the transfer or make the exchange as requested if its
reasonable requirements for such transaction are met; provided , however , that
the Capital Securities surrendered for registration of transfer or exchange,
other than in connection with the initial transfer by the Initial Purchaser,
pursuant to Section 8.4, shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Trust and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing and (i) if such Capital Securities are being transferred to a QIB or
a Regulation S Transferee, accompanied by a certificate of the transferor
substantially in the form set forth as Exhibit C hereto or (ii) if such Capital
Securities are being transferred otherwise than to a QIB or a Regulation S
Transferee, accompanied by a certificate of the transferee substantially in the
form set forth as Exhibit B hereto.
  (c)  Except as
permitted by Section 8.2(a) or as otherwise provided in Section 8.2(e), each
Capital Security shall bear a legend (the “Restricted Securities Legend”) in
substantially the following form:
  THIS
SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE
TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) TO A “NON-U.S. PERSON” IN AN “OFFSHORE
TRANSACTION” PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE DEBENTURE ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY
OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
  32
 THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
  IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
  THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
  (d)  Capital
Securities may only be transferred in minimum blocks of $100,000 aggregate
liquidation amount (100 Capital Securities) and multiples of $1,000 in excess
thereof. Any attempted transfer of Capital Securities in a block having an
aggregate liquidation amount of less than $100,000 shall be deemed to be void
and of no legal effect whatsoever. Any such purported transferee shall be deemed
not to be a Holder of such Capital Securities for any purpose, including, but
not limited to, the receipt of Distributions on such Capital Securities, and
such purported transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
  33
 (e)  The
Trust, upon the request of the Initial Purchaser, shall provide for some or all
of the Capital Securities to be transferred and held through the facilities of
The Depository Trust Company, the Euroclear, Clearstream or similar book-entry
system for holders and transferees who are QIB’s or Regulation S Transferees or,
consistent with an opinion of counsel, other holders or transferees. The
Administrators on behalf of the Trust shall cause appropriate revisions to the
form of Capital Securities necessary to facilitate book-entry transfers and
holding.
  Any
person acquiring an interest in a Capital Security through a book-entry facility
will be deemed to represent the following:
  1.  We
are:
  (ii)  a
“qualified institutional buyer” as defined in Rule 144A under the United States
Securities Act of 1933, as amended (the “Securities Act”) and are acquiring the
Capital Securities in reliance on Rule 144A; or
  (iii)  a person that is
not a “U.S. person” as defined in Regulation S under the Securities Act, and are
acquiring the Floating Rate TruPS ® (the
“Capital Securities”) of Vineyard Statutory Trust VII (the “Trust”) in reliance
on the exemption from registration provided by Regulation S
thereunder.
  2.  We
understand that the Capital Securities (including the guarantee (the
“Guarantee”) of Vineyard National Bancorp (the “Company”) executed in connection
therewith) and the Floating Rate Junior Subordinated Debt Securities due 2034 of
the Company (the “Subordinated Debt Securities”) (the Capital Securities, the
Guarantee and the Subordinated Debt Securities together being referred to herein
as the “Offered Securities”), have not been registered under the Securities Act,
and may not be offered or sold except as permitted in the following sentence. We
agree on our own behalf and on behalf of any investor account for which we are
purchasing the Capital Securities that, if we decide to offer, sell or otherwise
transfer any such Capital Securities, such offer, sale or transfer will be made
only (a) to the Company or the Trust, (b) pursuant to Rule 144A under the
Securities Act, to a person we reasonably believe is a qualified institutional
buyer under Rule 144A (a “QIB”) that purchases for its own account or for the
account of a QIB and to whom notice is given that the transfer is being made in
reliance on Rule 144A, (c) pursuant to Regulation S under the Securities Act,
(d) pursuant to an exemption from registration, to an “accredited investor”
within the meaning of subparagraph (a) (1), (2), (3) or (7) of Rule 501 under
the Securities Act that is acquiring Capital Securities for its own account or
for the account of such an accredited investor for investment purposes and not
with a view to, or for offer or sale in connection with, any distribution
thereof in violation of the Securities Act, or (e) pursuant to another available
exemption from the registration requirements of the Securities Act, and in each
of the foregoing cases in accordance with any applicable state securities laws
and any requirements of law that govern the disposition of our property. The
foregoing restrictions on resale will not apply subsequent to the date on which,
in the written opinion of counsel, the Capital Securities are not “restricted
securities” within the meaning of Rule 144 under the Securities Act. If any
resale or other transfer of the Capital Securities is proposed to be made
pursuant to clause (d) or (e) above, the transferor shall deliver a letter from
the transferee substantially in the form of Exhibit B hereto to the
Institutional Trustee as Transfer Agent, which shall provide as applicable,
among other things, that the transferee is an “accredited investor” within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge on our behalf
and on behalf of any investor account for which we are purchasing Capital
Securities that the Trust and the Company reserve the right prior to any offer,
sale or other transfer pursuant to clause (d) or (e) to require the delivery of
any opinion of counsel, certifications and/or other information satisfactory to
the Trust and the Company. We understand that the certificates for the Capital
Securities will bear a legend substantially to the effect of the
foregoing.
  34
 3.  We are
acquiring the Capital Securities for investment purposes and not with view to,
or for offer or sale in connection with, any distribution in violation of the
Securities Act, and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our investment in the
Capital Securities, and we and any account for which we are acting are each able
to bear the economic risks of our or its investment.
  4.  We are a
sophisticated institutional investor, have knowledge and experience in financial
matters and are capable  of
independently evaluating the merits and risks of our investment decision with
respect to the Capital Securities, and we have conducted, to the extent we
deemed necessary, an independent investigation of such matters, as, in our
judgment, is necessary for us to make an informed investment decision with
respect to the acquisition of an interest in the Capital
Securities.
  5.  We are
acquiring the Capital Securities purchased by us for our own account (or for one
or more accounts as to each of which we exercise sole investment discretion and
have authority to make, and do make, the statements contained herein) and not
with a view to any distribution of the Capital Securities, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.
  6.  In the
event that we purchase any Capital Securities, we will acquire such Capital
Securities having an aggregate stated liquidation amount of not less than
$100,000, for our own account and for each separate account for which we are
acting.
  7.  We
acknowledge that we either (A) are not a fiduciary of a pension, profit-sharing
or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) (a “Plan”), or an entity whose assets include “plan assets” by reason
of any Plan’s investment in the entity and are not purchasing the Capital
Securities on behalf of or with “plan assets” by reason of any Plan’s investment
in the entity and are not purchasing the Capital Securities on behalf of or with
“plan assets” of any Plan or (B) are eligible for the exemptive relief available
under one or more of the following prohibited transaction class exemptions
(“PTCEs”) issued by the U.S. Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1
or 84-14.
  8.  We acknowledge that the
Trust and the Company and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations, warranties and agreements and agree
that if any of the acknowledgments, representations, warranties and agreements
deemed to have been made by our purchase of the Capital Securities are no longer
accurate, we shall promptly notify the Initial Purchaser. If we are acquiring
any Capital Securities as a fiduciary or agent for one or more investor
accounts, we represent that we have sole discretion with respect to each such
investor account and that we have full power to make the foregoing
acknowledgments, representations and agreement on behalf of each such investor
account.
  The above
deemed representations may be modified consistent with an opinion of
counsel.
  SECTION
8.3.  Deemed
Security Holders . The
Trust, the Administrators, the Trustees, the Paying Agent, the Transfer Agent or
the Registrar may treat the Person in whose name any Certificate shall be
registered on the books and records of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the
Administrators, the Trustees, the Paying Agent, the Transfer Agent or the
Registrar shall have actual or other notice thereof.
  35
 SECTION
8.4.  Initial
Transfer of Capital Securities . Notwithstanding
the foregoing provisions of this Article VIII or any other provision of this
Declaration (including all Annexes and Exhibits hereto) to the contrary, any or
all of the Capital Securities issued to the Initial Purchaser on the date of
this Declaration (the “Initial Securities”) may be transferred by the Initial
Purchaser to Regional
Diversified Funding 2004-II Ltd. or such
other transferees as the Initial Purchaser may select, and such transfer of the
Initial Securities shall be accomplished as follows and no other conditions,
restrictions or other provisions of this Declaration or any other document shall
apply to such transfer: (i) the Certificate(s) evidencing the Initial Securities
issued to the Initial Purchaser to be transferred shall be surrendered to the
Registrar for registration of transfer and shall be accompanied by an
assignment, executed by the Initial Purchaser, in the form attached to Exhibit
A-1 hereof, except that no signature guarantee shall be required, and (ii) in
the case of the transfer to Regional
Diversified Funding 2004-II Ltd. or other pooled trust preferred vehicle
designated by the Initial Purchaser, such
surrendered Certificate shall be cancelled by the Institutional Trustee pursuant
to Section 6.6 and a new Certificate, registered in the name of the trustee
(with appropriate language indicating the status of such trustee as a trustee
and any beneficiaries) for such pooled vehicle as directed by such trustee, in
accordance with an indenture under which such pooled vehicle will pledge such
Certificate or as directed by the Initial Purchaser, and if directed by the
Initial Purchaser such Certificate shall be designated as Certificate No. P-1,
evidencing the number of Capital Securities to be transferred to such pooled
vehicle and, if applicable, another new Certificate, registered as directed by
the Initial Purchaser, evidencing any remaining Capital Securities represented
by such cancelled Certificate, shall be executed by an Administrator on behalf
of the Trust and, upon receipt of such executed Certificate(s), the
Institutional Trustee is hereby authorized and directed to execute the
certificate of authentication thereon and deliver such new Certificate(s) to the
Holder(s) thereof.
  ARTICLE
IX
  
  LIMITATION
OF LIABILITY OF
  HOLDERS
OF SECURITIES, TRUSTEES OR OTHERS
  SECTION
9.1.  Liability .
  (a)  Except as
expressly set forth in this Declaration, the Guarantee and the terms of the
Securities, the Sponsor shall not be:
  (i)  personally
liable for the return of any portion of the capital contributions (or any return
thereon) of the Holders of the Securities which shall be made solely from assets
of the Trust; and
  (ii)  required
to pay to the Trust or to any Holder of the Securities any deficit upon
dissolution of the Trust or otherwise.
  (b)  The
Holder of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust’s assets.
  (c)  Pursuant
to § 3803(a) of the Statutory Trust Act, the Holders of the Securities shall be
entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law
of the State of Delaware, except as otherwise specifically set forth
herein.
  36
 SECTION
9.2.  Exculpation .
  (a)  No
Indemnified Person shall be liable, responsible or accountable in damages or
otherwise to the Trust or any Covered Person for any loss, damage or claim
incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Declaration or by law, except that
an Indemnified Person (other than an Administrator) shall be liable for any such
loss, damage or claim incurred by reason of such Indemnified Person’s negligence
or willful misconduct with respect to such acts or omissions and except that an
Administrator shall be liable for any such loss, damage or claim incurred by
reason of such Administrator’s gross negligence or willful misconduct with
respect to such acts or omissions.
  (b)  An
Indemnified Person shall be fully protected in relying in good faith upon the
records of the Trust and upon such information, opinions, reports or statements
presented to the Trust by any Person as to matters the Indemnified Person
reasonably believes are within such other Person’s professional or expert
competence and, if selected by such Indemnified Person, has been selected by
such Indemnified Person with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses or any other facts pertinent
to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.
  SECTION
9.3.  Fiduciary
Duty .
  (a)  To the
extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other
Covered Person, an Indemnified Person acting under this Declaration shall not be
liable to the Trust or to any other Covered Person for its good faith reliance
on the provisions of this Declaration. The provisions of this Declaration, to
the extent that they restrict the duties and liabilities of an Indemnified
Person otherwise existing at law or in equity (other than the duties imposed on
the Institutional Trustee under the Trust Indenture Act), are agreed by the
parties hereto to replace such other duties and liabilities of the Indemnified
Person.
  (b)  Whenever
in this Declaration an Indemnified Person is permitted or required to make a
decision:
  (i)  in its
“discretion” or under a grant of similar authority, the Indemnified Person shall
be entitled to consider such interests and factors as it desires, including its
own interests, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Trust or any other Person;
or
  (ii)  in its
“good faith” or under another express standard, the Indemnified Person shall act
under such express standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.
  SECTION
9.4.  Indemnification .
  37
 (a)  (i) The
Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Trust) by reason of the fact that such Person is or was an
Indemnified Person against expenses (including attorneys’ fees and expenses),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such Person in connection with such action, suit or proceeding if such Person
acted in good faith and in a manner such Person reasonably believed to be in or
not opposed to the best interests of the Trust, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe such conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnified
Person did not act in good faith and in a manner which such Person reasonably
believed to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that such conduct was unlawful.
  (ii)  The
Sponsor shall indemnify, to the fullest extent permitted by law, any Indemnified
Person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Trust
to procure a judgment in its favor by reason of the fact that such Person is or
was an Indemnified Person against expenses (including attorneys’ fees and
expenses) actually and reasonably incurred by such Person in connection with the
defense or settlement of such action or suit if such Person acted in good faith
and in a manner such Person reasonably believed to be in or not opposed to the
best interests of the Trust and except that no such indemnification shall be
made in respect of any claim, issue or matter as to which such Indemnified
Person shall have been adjudged to be liable to the Trust unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
Person is fairly and reasonably entitled to indemnity for such expenses which
such Court of Chancery or such other court shall deem proper.
  (iii)  To the
extent that an Indemnified Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the settlement of an
action without admission of liability) in defense of any action, suit or
proceeding referred to in paragraphs (i) and (ii) of this Section 9.4(a), or in
defense of any claim, issue or matter therein, such Person shall be indemnified,
to the fullest extent permitted by law, against expenses (including attorneys’
fees and expenses) actually and reasonably incurred by such Person in connection
therewith.
  (iv)  Any
indemnification of an Administrator under paragraphs (i) and (ii) of this
Section 9.4(a) (unless ordered by a court) shall be made by the Sponsor only as
authorized in the specific case upon a determination that indemnification of the
Indemnified Person is proper in the circumstances because such Person has met
the applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (A) by the Administrators by a majority vote of a
Quorum consisting of such Administrators who were not parties to such action,
suit or proceeding, (B) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion, or (C) by the Common Security
Holder of the Trust.
  (v)  To the
fullest extent permitted by law, expenses (including attorneys’ fees and
expenses) incurred by an Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section 9.4(a) shall be paid by the Sponsor in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such Indemnified Person to repay such
amount if it shall ultimately be determined that such Person is not entitled to
be indemnified by the Sponsor as authorized in this Section 9.4(a).
Notwithstanding the foregoing, no advance shall be made by the Sponsor if a
determination is reasonably and promptly made (1) in the case of a Company
Indemnified Person (A) by the Administrators by a majority vote of a Quorum of
disinterested Administrators, (B) if such a Quorum is not obtainable, or, even
if obtainable, if a Quorum of disinterested Administrators so directs, by
independent legal counsel in a written opinion or (C) by the Common Security
Holder of the Trust, that, based upon the facts known to the Administrators,
counsel or the Common Security Holder at the time such determination is made,
such Indemnified Person acted in bad faith or in a manner that such Person
either believed to be opposed to or did not believe to be in the best interests
of the Trust, or, with respect to any criminal proceeding, that such Indemnified
Person believed or had reasonable cause to believe such conduct was unlawful, or
(2) in the case of a Fiduciary Indemnified Person, by independent legal counsel
in a written opinion that, based upon the facts known to the counsel at the time
such determination is made, such Indemnified Person acted in bad faith or in a
manner that such Indemnified Person either believed to be opposed to or did not
believe to be in the best interests of the Trust, or, with respect to any
criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe such conduct was unlawful. In no event shall any advance be
made (i) to a Company Indemnified Person in instances where the Administrators,
independent legal counsel or the Common Security Holder reasonably determine
that such Person deliberately breached such Person’s duty to the Trust or its
Common or Capital Security Holders or (ii) to a Fiduciary Indemnified Person in
instances where independent legal counsel promptly and reasonably determines in
a written opinion that such Person deliberately breached such Person’s duty to
the Trust or its Common or Capital Security Holders.
  38
 (b)  The
Sponsor shall indemnify, to the fullest extent permitted by applicable law, each
Indemnified Person from and against any and all loss, damage, liability, tax
(other than taxes based on the income of such Indemnified Person), penalty,
expense or claim of any kind or nature whatsoever incurred by such Indemnified
Person arising out of or in connection with or by reason of the creation,
administration or termination of the Trust, or any act or omission of such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Declaration, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage, liability, tax, penalty, expense or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
  (c)  The
indemnification and advancement of expenses provided by, or granted pursuant to,
the other paragraphs of this Section 9.4 shall not be deemed exclusive of any
other rights to which those seeking indemnification and advancement of expenses
may be entitled under any agreement, vote of stockholders or disinterested
directors of the Sponsor or Capital Security Holders of the Trust or otherwise,
both as to action in such Person’s official capacity and as to action in another
capacity while holding such office. All rights to indemnification under this
Section 9.4 shall be deemed to be provided by a contract between the Sponsor and
each Indemnified Person who serves in such capacity at any time while this
Section 9.4 is in effect. Any repeal or modification of this Section 9.4 shall
not affect any rights or obligations then existing.
  (d)  The
Sponsor or the Trust may purchase and maintain insurance on behalf of any Person
who is or was an Indemnified Person against any liability asserted against such
Person and incurred by such Person in any such capacity, or arising out of such
Person’s status as such, whether or not the Sponsor would have the power to
indemnify such Person against such liability under the provisions of this
Section 9.4.
  39
 (e)  For
purposes of this Section 9.4, references to “the Trust” shall include, in
addition to the resulting or surviving entity, any constituent entity (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 9.4 with
respect to the resulting or surviving entity as such Person would have with
respect to such constituent entity if its separate existence had
continued.
  (f)  The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Section 9.4 shall, unless otherwise provided when authorized or ratified,
continue as to a Person who has ceased to be an Indemnified Person and shall
inure to the benefit of the heirs, executors and administrators of such a
Person.
  (g)  The
provisions of this Section 9.4 shall survive the termination of this Declaration
or the earlier resignation or removal of the Institutional Trustee. The
obligations of the Sponsor under this Section 9.4 to compensate and indemnify
the Trustees and to pay or reimburse the Trustees for expenses, disbursements
and advances shall constitute additional indebtedness hereunder. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustees as such, except funds held
in trust for the benefit of the holders of particular Capital Securities, provided , that
the Sponsor is the holder of the Common Securities.
  SECTION
9.5.  Outside
Businesses . Any
Covered Person, the Sponsor, the Delaware Trustee and the Institutional Trustee
(subject to Section 4.3(c)) may engage in or possess an interest in other
business ventures of any nature or description, independently or with others,
similar or dissimilar to the business of the Trust, and the Trust and the
Holders of Securities shall have no rights by virtue of this Declaration in and
to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the Trust,
shall not be deemed wrongful or improper. None of any Covered Person, the
Sponsor, the Delaware Trustee or the Institutional Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the
Institutional Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Institutional Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
  SECTION
9.6.  Compensation;
Fee . (a) The
Sponsor agrees:
  (i)  to pay to
the Trustees from time to time such compensation for all services rendered by
them hereunder as the parties shall agree in writing from time to time (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust); and
  (ii)  except as
otherwise expressly provided herein, to reimburse the Trustees upon request for
all reasonable, documented expenses, disbursements and advances incurred or made
by the Trustees in accordance with any provision of this Declaration (including
the reasonable compensation and the expenses and disbursements of their
respective agents and counsel), except any such expense, disbursement or advance
attributable to their negligence or willful misconduct.
  40
 (b)  The
provisions of this Section 9.6 shall survive the dissolution of the Trust
and the termination of this Declaration and the removal or resignation of any
Trustee.
  ARTICLE
X
  
  ACCOUNTING
  SECTION
10.1.  Fiscal
Year . The
fiscal year (the “Fiscal Year”) of the Trust shall be the calendar year, or such
other year as is required by the Code.
  SECTION
10.2.  Certain
Accounting Matters .
  (a)  At all
times during the existence of the Trust, the Administrators shall keep, or cause
to be kept at the principal office of the Trust in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, full books of account,
records and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied.
  (b)  The
Administrators shall either (i) cause each Form 10-K and Form 10-Q prepared
by the Sponsor and filed with the Commission in accordance with the Exchange Act
to be delivered to each Holder of Securities, within 90 days after the
filing of each Form 10-K and within 30 days after the filing of each Form 10-Q
or (ii) cause to be prepared at the principal office of the Trust in the
United States, as defined for purposes of Treasury Regulations
§ 301.7701-7, and delivered to each of the Holders of Securities, within 90
days after the end of each Fiscal Year of the Trust, annual financial statements
of the Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.
  (c)  The
Administrators shall cause to be duly prepared and delivered to each of the
Holders of Securities Form 1099 or such other annual United States federal
income tax information statement required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Administrators shall endeavor
to deliver all such statements within 30 days after the end of each Fiscal Year
of the Trust.
  (d)  The
Administrators shall cause to be duly prepared in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, and filed an annual United
States federal income tax return on a Form 1041 or such other form required by
United States federal income tax law, and any other annual income tax returns
required to be filed by the Administrators on behalf of the Trust with any state
or local taxing authority.
  (e)  The
Administrators will cause the Sponsor’s reports on Form FR Y-9LP to be delivered
to the Holder promptly following their filing with the Federal
Reserve.
  SECTION
10.3.  Banking . The
Trust shall maintain one or more bank accounts in the United States, as defined
for purposes of Treasury Regulations § 301.7701-7, in the name and for the sole
benefit of the Trust; provided , however , that
all payments of funds in respect of the Debentures held by the Institutional
Trustee shall be made directly to the Property Account and no other funds of the
Trust shall be deposited in the Property Account. The sole signatories for such
accounts (including the Property Account) shall be designated by the
Institutional Trustee.
  41
 SECTION
10.4.  Withholding . The
Institutional Trustee or any Paying Agent and the Administrators shall comply
with all withholding requirements under United States federal, state and local
law. The Institutional Trustee or any Paying Agent shall request, and each
Holder shall provide to the Institutional Trustee or any Paying Agent, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to the Holder, and any representations and forms as
shall reasonably be requested by the Institutional Trustee or any Paying Agent
to assist it in determining the extent of, and in fulfilling, its withholding
obligations. The Administrators shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Institutional Trustee or any
Paying Agent is required to withhold and pay over any amounts to any authority
with respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a Distribution to the Holder in the amount of the
withholding. In the event of any claimed overwithholding, Holders shall be
limited to an action against the applicable jurisdiction. If the amount required
to be withheld was not withheld from actual Distributions made, the
Institutional Trustee or any Paying Agent may reduce subsequent Distributions by
the amount of such withholding.
  ARTICLE
XI
  
  AMENDMENTS
AND MEETINGS
  SECTION
11.1.  Amendments .
  (a)  Except as
otherwise provided in this Declaration or by any applicable terms of the
Securities, this Declaration may only be amended by a written instrument
approved and executed by:
  (i)  the
Institutional Trustee,
  (ii)  if the
amendment affects the rights, powers, duties, obligations or immunities of the
Delaware Trustee, the Delaware Trustee,
  (iii)  if the
amendment affects the rights, powers, duties, obligations or immunities of the
Administrators, the Administrators, and
  (iv)  the
Holders of a Majority in liquidation amount of the Common
Securities.
  (b)  Notwithstanding
any other provision of this Article XI, no amendment shall be made, and any such
purported amendment shall be void and ineffective:
  (i)  unless
the Institutional Trustee shall have first received
  (A)  an
Officers’ Certificate from each of the Trust and the Sponsor that such amendment
is permitted by, and conforms to, the terms of this Declaration (including the
terms of the Securities); and
  (B)  an
opinion of counsel (who may be counsel to the Sponsor or the Trust) that such
amendment is permitted by, and conforms to, the terms of this Declaration
(including the terms of the Securities) and that all conditions precedent to the
execution and delivery of such amendment have been satisfied; or
  (ii)  if the
result of such amendment would be to
  42
 (A)  cause the
Trust to cease to be classified for purposes of United States federal income
taxation as a grantor trust;
  (B)  reduce or
otherwise adversely affect the powers of the Institutional Trustee in
contravention of the Trust Indenture Act;
  (C)  cause the
Trust to be deemed to be an Investment Company required to be registered under
the Investment Company Act; or
  (D)  cause the
Debenture Issuer to be unable to treat an amount equal to the Liquidation Amount
of the Debentures as “Tier 1 Capital” for purposes of the capital adequacy
guidelines of the Federal Reserve.
  (c)  Except as
provided in Section 11.1(d), (e) or (g), no amendment shall be made, and
any such purported amendment shall be void and ineffective, unless the Holders
of a Majority in liquidation amount of the Capital Securities shall have
consented to such amendment.
  (d)  In
addition to and notwithstanding any other provision in this Declaration, without
the consent of each affected Holder, this Declaration may not be amended to (i)
change the amount or timing of any Distribution on the Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Securities as of a specified date or (ii) restrict the right of a Holder
to institute suit for the enforcement of any such payment on or after such
date.
  (e)  Sections
9.1(b) and 9.1(c) and this Section 11.1 shall not be amended without the consent
of all of the Holders of the Securities.
  (f)  The
rights of the Holders of the Capital Securities and Common Securities, as
applicable, under Article IV to increase or decrease the number of, and appoint
and remove, Trustees shall not be amended without the consent of the Holders of
a Majority in liquidation amount of the Capital Securities or Common Securities,
as applicable.
  (g)  This
Declaration may be amended by the Institutional Trustee and the Holder of a
Majority in liquidation amount of the Common Securities without the consent of
the Holders of the Capital Securities to:
  (i)  cure any
ambiguity;
  (ii)  correct
or supplement any provision in this Declaration that may be defective or
inconsistent with any other provision of this Declaration;
  (iii)  add to
the covenants, restrictions or obligations of the Sponsor;
  (iv)  modify,
eliminate or add to any provision of this Declaration to such extent as may be
necessary or desirable, including, without limitation, to ensure that the Trust
will be classified for United States federal income tax purposes at all times as
a grantor trust and will not be required to register as an Investment Company
under the Investment Company Act (including without limitation to conform to any
change in Rule 3a-5, Rule 3a-7 or any other applicable rule under the Investment
Company Act or written change in interpretation or application thereof by any
legislative body, court, government agency or regulatory authority) which
amendment does not have a material adverse effect on the right, preferences or
privileges of the Holders of Securities; or
  43
 (v)  facilitate
the clearance of the Capital Securities through the facilities of The Depository
Trust Company or other book-entry system.
  provided , however , that no
such modification, elimination or addition referred to in clause (i), (ii),
(iii), (iv) or (v) shall adversely affect the powers, preferences or rights of
Holders of Capital Securities (it being
understood, for purposes of this proviso, that providing for transfer of the
Capital Securities in global or book-entry form shall not be deemed to adversely
affect the powers, preferences or rights of Holders of the Capital
Securities) .
  SECTION
11.2.  Meetings
of the Holders of the Securities; Action by Written Consent .
  (a)  Meetings
of the Holders of any class of Securities may be called at any time by the
Administrators (or as provided in the terms of the Securities) to consider and
act on any matter on which Holders of such class of Securities are entitled to
act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Capital Securities are listed or
admitted for trading, if any. The Administrators shall call a meeting of the
Holders of such class if directed to do so by the Holders of not less than 10%
in liquidation amount of such class of Securities. Such direction shall be given
by delivering to the Administrators one or more calls in a writing stating that
the signing Holders of the Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of the Securities calling a meeting shall specify in writing the Certificates
held by the Holders of the Securities exercising the right to call a meeting and
only those Securities represented by such Certificates shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
  (b)  Except to
the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of the Securities:
  (i)  notice of
any such meeting shall be given to all the Holders of the Securities having a
right to vote thereat at least 7 days and not more than 60 days before the date
of such meeting. Whenever a vote, consent or approval of the Holders of the
Securities is permitted or required under this Declaration or the rules of any
stock exchange on which the Capital Securities are listed or admitted for
trading, if any, such vote, consent or approval may be given at a meeting of the
Holders of the Securities. Any action that may be taken at a meeting of the
Holders of the Securities may be taken without a meeting if a consent in writing
setting forth the action so taken is signed by the Holders of the Securities
owning not less than the minimum amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of the
Securities having a right to vote thereon were present and voting. Prompt notice
of the taking of action without a meeting shall be given to the Holders of the
Securities entitled to vote who have not consented in writing. The
Administrators may specify that any written ballot submitted to the Holders of
the Securities for the purpose of taking any action without a meeting shall be
returned to the Trust within the time specified by the
Administrators;
  (ii)  each
Holder of a Security may authorize any Person to act for it by proxy on all
matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Holder of the Securities executing it. Except as otherwise provided
herein, all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Trust were a
Delaware corporation and the Holders of the Securities were stockholders of a
Delaware corporation; each meeting of the Holders of the Securities shall be
conducted by the Administrators or by such other Person that the Administrators
may designate; and
  44
 (iii)  unless
the Statutory Trust Act, this Declaration, the terms of the Securities, the
Trust Indenture Act or the listing rules of any stock exchange on which the
Capital Securities are then listed for trading, if any, otherwise provides, the
Administrators, in their sole discretion, shall establish all other provisions
relating to meetings of Holders of Securities, including notice of the time,
place or purpose of any meeting at which any matter is to be voted on by any
Holders of the Securities, waiver of any such notice, action by consent without
a meeting, the establishment of a record date, quorum requirements, voting in
person or by proxy or any other matter with respect to the exercise of any such
right to vote; provided , however , that
each meeting shall be conducted in the United States (as that term is defined in
Treasury Regulations § 301.7701-7).
  ARTICLE
XII
  
  REPRESENTATIONS
OF INSTITUTIONAL TRUSTEE
  AND
DELAWARE TRUSTEE
  SECTION
12.1.  Representations
and Warranties of Institutional Trustee . The
Trustee that acts as initial Institutional Trustee represents and warrants to
the Trust and to the Sponsor at the date of this Declaration, and each Successor
Institutional Trustee represents and warrants to the Trust and the Sponsor at
the time of the Successor Institutional Trustee’s acceptance of its appointment
as Institutional Trustee, that:
  (a)  the
Institutional Trustee is a banking corporation or national association with
trust powers, duly organized, validly existing and in good standing under the
laws of the State of Delaware or the United States of America, respectively,
with trust power and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
  (b)  the
Institutional Trustee has a combined capital and surplus of at least fifty
million U.S. dollars ($50,000,000);
  (c)  the
Institutional Trustee is not an affiliate of the Sponsor, nor does the
Institutional Trustee offer or provide credit or credit enhancement to the
Trust;
  (d)  the
execution, delivery and performance by the Institutional Trustee of this
Declaration has been duly authorized by all necessary action on the part of the
Institutional Trustee. This Declaration has been duly executed and delivered by
the Institutional Trustee, and under Delaware law (excluding any securities
laws) constitutes a legal, valid and binding obligation of the Institutional
Trustee, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, reorganization, moratorium, insolvency and other similar
laws affecting creditors’ rights generally and to general principles of equity
and the discretion of the court (regardless of whether considered in a
proceeding in equity or at law);
  (e)  the
execution, delivery and performance of this Declaration by the Institutional
Trustee does not conflict with or constitute a breach of the charter or by-laws
of the Institutional Trustee; and
  45
 (f)  no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the
Institutional Trustee is required for the execution, delivery or performance by
the Institutional Trustee of this Declaration.
  SECTION
12.2.  Representations
and Warranties of Delaware Trustee . The
Trustee that acts as initial Delaware Trustee represents and warrants to the
Trust and to the Sponsor at the date of this Declaration, and each Successor
Delaware Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Delaware Trustee’s acceptance of its appointment as
Delaware Trustee that:
  (a)  if it is
not a natural person, the Delaware Trustee is duly organized, validly existing
and in good standing under the laws of the State of Delaware;
  (b)  if it is
not a natural person, the execution, delivery and performance by the Delaware
Trustee of this Declaration has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Declaration has been duly
executed and delivered by the Delaware Trustee, and under Delaware law
(excluding any securities laws) constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency and other similar laws affecting creditors’ rights generally and to
general principles of equity and the discretion of the court (regardless of
whether considered in a proceeding in equity or at law);
  (c)  if it is
not a natural person, the execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Delaware Trustee;
  (d)  it has
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration;
  (e)  no
consent, approval or authorization of, or registration with or notice to, any
state or federal banking authority governing the trust powers of the Delaware
Trustee is required for the execution, delivery or performance by the Delaware
Trustee of this Declaration; and
  (f)  the
Delaware Trustee is a natural person who is a resident of the State of Delaware
or, if not a natural person, it is an entity which has its principal place of
business in the State of Delaware and, in either case, a Person that satisfies
for the Trust the requirements of Section 3807 of the Statutory Trust
Act.
  ARTICLE
XIII
  
  MISCELLANEOUS
  SECTION
13.1.  Notices . All
notices provided for in this Declaration shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied (which telecopy
shall be followed by notice delivered or mailed by first class mail) or mailed
by first class mail, as follows:
  (a)  if given
to the Trust, in care of the Administrators at the Trust’s mailing address set
forth below (or such other address as the Trust may give notice of to the
Holders of the Securities):
  46
 Vineyard
Statutory Trust VII
 c/o
Vineyard National Bancorp
 8105
Irvine Center Drive #600
 Irvine,
CA 92618
  Attention:
Gordon Fong
  Telecopy:
949-788-0726
  Telephone:
949-271-5117
  (b)  if given
to the Delaware Trustee, at the mailing address set forth below (or such other
address as the Delaware Trustee may give notice of to the Holders of the
Securities):
  Wells
Fargo Delaware Trust Company
 919 North
Market Street
 Suite
700
 Wilmington,
DE 19801
 Attention:
Corporate Trust Administration
 Telecopy:
302-575-2006
 Telephone:
302-575-2005
  (c)  if given
to the Institutional Trustee, at the Institutional Trustee’s mailing address set
forth below (or such other address as the Institutional Trustee may give notice
of to the Holders of the Securities):
  Wells
Fargo Bank, National Association
 919 North
Market Street
 Suite
700
 Wilmington,
DE 19801
 Attention:
Corporate Trust Administration
 Telecopy:
302-575-2006
 Telephone:
302-575-2005
  (d)  if given
to the Holder of the Common Securities, at the mailing address of the Sponsor
set forth below (or such other address as the Holder of the Common Securities
may give notice of to the Trust):
  Vineyard
National Bancorp
 8105
Irvine Center Drive #600
 Irvine,
CA 92618
  Attention:
Gordon Fong
  Telecopy:
949-788-0726
  Telephone:
949-271-5117
  (e)  if given
to any other Holder, at the address set forth on the books and records of the
Trust.
  All such
notices shall be deemed to have been given when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid, except
that if a notice or other document is refused delivery or cannot be delivered
because of a changed address of which no notice was given, such notice or other
document shall be deemed to have been delivered on the date of such refusal or
inability to deliver.
  47
 SECTION
13.2.  Governing
Law . This
Declaration and the rights and obligations of the parties hereunder shall be
governed by and interpreted in accordance with the law of the State of Delaware
and all rights, obligations and remedies shall be governed by such laws without
regard to the principles of conflict of laws of the State of Delaware or any
other jurisdiction that would call for the application of the law of any
jurisdiction other than the State of Delaware.
  SECTION
13.3.  Submission
to Jurisdiction .
  (a)  Each of
the parties hereto agrees that any suit, action or proceeding arising out of or
based upon this Declaration, or the transactions contemplated hereby, may be
instituted in any of the courts of the State of New York and the United States
District Courts, in each case located in the Borough of Manhattan, City and
State of New York, and further agrees to submit to the jurisdiction of any
competent court in the place of its corporate domicile in respect of actions
brought against it as a defendant. In addition, each such party irrevocably
waives, to the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of the venue of such suit, action or proceeding
brought in any such court and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum and irrevocably waives any right to which it may be entitled
on account of its place of corporate domicile. Each such party hereby
irrevocably waives any and all right to trial by jury in any legal proceeding
arising out of or relating to this Declaration or the transactions contemplated
hereby. Each such party agrees that final judgment in any proceedings brought in
such a court shall be conclusive and binding upon it and may be enforced in any
court to the jurisdiction of which it is subject by a suit upon such
judgment.
  (b)  Each of
the Sponsor, the Trustees, the Administrators and the Holder of the Common
Securities irrevocably consents to the service of process on it in any such
suit, action or proceeding by the mailing thereof by registered or certified
mail, postage prepaid, to it at its address given in or pursuant to Section 13.1
hereof.
  (c)  To the
extent permitted by law, nothing herein contained shall preclude any party from
effecting service of process in any lawful manner or from bringing any suit,
action or proceeding in respect of this Declaration in any other state, country
or place.
  SECTION
13.4.  Intention
of the Parties . It is
the intention of the parties hereto that the Trust be classified for United
States federal income tax purposes as a grantor trust. The provisions of this
Declaration shall be interpreted to further this intention of the
parties.
  SECTION
13.5.  Headings .
Headings contained in this Declaration are inserted for convenience of reference
only and do not affect the interpretation of this Declaration or any provision
hereof.
  SECTION
13.6.  Successors
and Assigns .
Whenever in this Declaration any of the parties hereto is named or referred to,
the successors and assigns of such party shall be deemed to be included, and all
covenants and agreements in this Declaration by the Sponsor and the Trustees
shall bind and inure to the benefit of their respective successors and assigns,
whether or not so expressed.
  SECTION
13.7.  Partial
Enforceability . If any
provision of this Declaration, or the application of such provision to any
Person or circumstance, shall be held invalid, the remainder of this
Declaration, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected
thereby.
  48
 SECTION
13.8.  Counterparts . This
Declaration may contain more than one counterpart of the signature page and this
Declaration may be executed by the affixing of the signature of each of the
Trustees and Administrators to any of such counterpart signature pages. All of
such counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.
   49
  IN
WITNESS WHEREOF, the undersigned have caused this Declaration to be duly
executed as of the day and year first above written.
  Wells
Fargo Delaware Trust Company,
  as
Delaware Trustee
  By:
_____________________________
  Name:
  Title
  Wells
Fargo Bank, National Association,
  as
Institutional Trustee
  By:
_____________________________
  Name:
  Title:
  Vineyard
National Bancorp
  as
Sponsor
  By:
______________________________
  Name:
  Title:
  
  
  ______________________________
  Administrator
  ______________________________
  Administrator
  
   50
   ANNEX
I
  TERMS
OF
  FLOATING
RATE TruPS ®  AND
  FLOATING
RATE COMMON SECURITIES
  Pursuant
to Section 6.1 of the Amended and Restated Declaration of Trust, dated as of
December 22, 2004 (as amended from time to time, the “Declaration”), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Capital Securities and the Common Securities are set out below
(each capitalized term used but not defined herein has the meaning set forth in
the Declaration):
  1.  Designation
and Number.
  (a)  Capital
Securities. 10,000 Capital Securities of Vineyard Statutory Trust VII (the
“Trust”), with an aggregate stated liquidation amount with respect to the assets
of the Trust of Ten Million Dollars ($10,000,000) and a stated liquidation
amount with respect to the assets of the Trust of $1,000 per Capital Security,
are hereby designated for the purposes of identification only as the “Floating
Rate TruPS ® ”  (the
“Capital Securities”). Subject to Section 8.2 of the Declaration, the Capital
Security Certificates evidencing the Capital Securities shall be substantially
in the form of Exhibit A-1 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange on which the Capital
Securities are listed, if any.
  (b)  Common
Securities. 310 Common Securities of the Trust (the “Common Securities”) will be
evidenced by Common Security Certificates substantially in the form of Exhibit
A-2 to the Declaration, with such changes and additions thereto or deletions
therefrom as may be required by ordinary usage, custom or practice. In the
absence of an Event of Default, the Common Securities will have an aggregate
stated liquidation amount with respect to the assets of the Trust of
Three-Hundred Ten Thousand Dollars ($310,000) and a stated liquidation amount
with respect to the assets of the Trust of $1,000 per Common
Security.
  2.  Distributions . (a) Subject
to the occurrence of a Reset Event, distributions payable on each Security will
be payable at a variable per annum rate of interest, reset quarterly, equal to
LIBOR, as determined on the LIBOR Determination Date for such Distribution
Period (as defined herein), plus 2.00% (the “Coupon Rate”) of the stated
liquidation amount of $1,000 per Security, such rate being the rate of interest
payable on the Debentures to be held by the Institutional Trustee. A Reset Event
will occur if on any day specified by the Initial Purchaser, Regional
Diversified Funding 2004-II Ltd. or another pooled trust preferred vehicle
becomes the registered owner of the Capital Securities (such day, the “Reset
Date”). Upon the occurrence of a Reset Event, the applicable LIBOR will be reset
on the Reset Date to be equal to the LIBOR applicable on the newly issued trust
preferred capital securities with the same LIBOR Determination Dates issued by
other trust subsidiaries of bank holding companies or thrift holding companies
who issue LIBOR based 30 year floating rate trust preferred capital securities
to Regional Diversified Funding 2004-II Ltd. or another pooled trust preferred
vehicle designated by the Initial Purchaser. Except as set forth below in
respect of an Extension Period, Distributions in arrears for more than one
quarterly period will bear interest thereon compounded quarterly at the
applicable Coupon Rate for each such quarterly period (to the extent permitted
by applicable law). The term “Distributions” as used herein includes cash
distributions, any such compounded distributions and any Additional Amounts
payable on the Debentures unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the Debentures held by
the Institutional Trustee and to the extent the Institutional Trustee has funds
legally available in the Property Account therefor. The amount of Distributions
payable for any period will be computed for any full quarterly Distribution
Period on the basis of a 360-day year and the actual number of days elapsed in
the relevant Distribution Period; provided , however , that
upon the occurrence of a Special Event redemption pursuant to paragraph 4(a)
below the amounts payable pursuant to this Declaration shall be calculated as
set forth in the definition of Special Redemption Price.
  A-I-1
 The term
“Distribution Period” means the period from and including the immediately
preceding Distribution Payment Date or in the case of the first Distribution
Period, the date of the original issuance of the securities to, but excluding,
the next applicable Distribution Payment Date or in the case of the last
Distribution Period, the date of redemption.
  (b)  LIBOR for
a given Distribution Period shall be determined by the Calculation Agent in
accordance with the following provisions:
  (i)  Subject
to the occurrence of a Reset Event, on the second LIBOR Business Day
( provided , that on
such day commercial banks are open for business (including dealings in foreign
currency deposits) in London (a “LIBOR Banking Day”), and otherwise the next
preceding LIBOR Business Day that is also a LIBOR Banking Day) prior to March 1,
June 1, September 1 and December 1, as the case may be, immediately prior to the
commencement of such Distribution Period (except, with respect to the first
Distribution Period, LIBOR for such Distribution Period shall be determined on
December 15, 2004) (each such day, a “LIBOR Determination Date”), LIBOR shall
equal the rate, as obtained by the Calculation Agent, for three-month U.S.
Dollar deposits in Europe which appears on Telerate Page 3750 (as defined in the
International Swaps and Derivatives Association, Inc. 1991 Interest Rate and
Currency Exchange Definitions) or such other page as may replace such Telerate
Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date, as
reported by Bloomberg Financial Markets Commodities News. “LIBOR Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banking institutions in New York, New York or Wilmington, Delaware are
authorized or obligated by law or executive order to be closed. If such rate is
superseded on Telerate Page 3750 by a corrected rate before 12:00 noon (London
time) on the same LIBOR Determination Date, the corrected rate as so substituted
will be the applicable LIBOR for that LIBOR Determination Date.
  (ii)  If, on
any LIBOR Determination Date, such rate does not appear on Telerate Page 3750 as
reported by Bloomberg Financial Markets Commodities News or such other page as
may replace such Telerate Page 3750, the Calculation Agent shall determine the
arithmetic mean of the offered quotations of the Reference Banks (as defined
below) to leading banks in the London interbank market for three-month U.S.
Dollar deposits in Europe (in an amount determined by the Calculation Agent) by
reference to requests for quotations as of approximately 11:00 a.m. (London
time) on the LIBOR Determination Date made by the Calculation Agent to the
Reference Banks. If, on any LIBOR Determination Date, at least two of the
Reference Banks provide such quotations, LIBOR shall equal the arithmetic mean
of such quotations. If, on any LIBOR Determination Date, only one or none of the
Reference Banks provides such a quotation, LIBOR shall be deemed to be the
arithmetic mean of the offered quotations that at least two leading banks in the
City of New York (as selected by the Calculation Agent) are quoting on the
relevant LIBOR Determination Date for three-month U.S. Dollar deposits in Europe
at approximately 11:00 a.m. (London time) in an amount determined by the
Calculation Agent. As used herein, “Reference Banks” means four major banks in
the London interbank market selected by the Calculation Agent.
  A-I-2
 (iii)  If the
Calculation Agent is required but is unable to determine a rate in accordance
with at least one of the procedures provided above, LIBOR for such Distribution
Period shall be LIBOR in effect during the immediately preceding Distribution
Period.
  (c)  All
percentages resulting from any calculations on the Securities will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
..09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward).
  (d)  On each
LIBOR Determination Date and the Reset Date the Calculation Agent shall notify,
in writing, the Sponsor and the Paying Agent of the applicable Coupon Rate in
effect for the related Distribution payment period. The Calculation Agent shall,
upon the request of the Holder of any Securities, provide the Coupon Rate then
in effect. All calculations made by the Calculation Agent in the absence of
manifest error shall be conclusive for all purposes and binding on the Sponsor
and the Holders of the Securities. The Paying Agent shall be entitled to rely on
information received from the Calculation Agent or the Sponsor as to the Coupon
Rate. The Sponsor shall, from time to time, provide any necessary information to
the Paying Agent relating to any original issue discount and interest on the
Securities that is included in any payment and reportable for taxable income
calculation purposes.
  (e)  Distributions
on the Securities will be cumulative, will accrue from the date of original
issuance, and will be payable, subject to extension of Distribution payment
periods as described herein, quarterly in arrears on March 16, June 16,
September 16 and December 16 of each year, commencing on March 16, 2005 (each, a
“Distribution Payment Date”). The Debenture Issuer has the right under the
Indenture to defer payments of interest on the Debentures by extending the
interest payment period for up to 20 consecutive quarterly periods (each, an
“Extension Period”) at any time and from time to time on the Debentures, subject
to the conditions described below, during which Extension Period no interest
shall be due and payable. During any Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest (such accrued
interest and interest thereon referred to herein as “Deferred Interest”) will
accrue at an annual rate equal to the applicable Coupon Rate in effect for each
such Extension Period, compounded quarterly from the date such Deferred Interest
would have been payable were it not for the Extension Period, to the extent
permitted by law. No Extension Period may end on a date other than a
Distribution Payment Date. At the end of any such Extension Period, the
Debenture Issuer shall pay all Deferred Interest then accrued and unpaid on the
Debentures; provided , however , that no
Extension Period may extend beyond the Maturity Date, Redemption Date or Special
Redemption Date and provided , further , that,
during any such Extension Period, the Debenture Issuer may not (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Debenture Issuer’s capital stock
or (ii) make any payment due on or repay, repurchase or redeem any debt
securities of the Debenture Issuer that rank *pari
passu* in all
respects with or junior in interest to the Debentures (other than (a)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Debenture Issuer (1) 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, (2) in connection with a dividend
reinvestment or stockholder stock purchase plan or (3) in connection with the
issuance of capital stock of the Debenture Issuer (or securities convertible
into or exercisable for such capital stock), as consideration in an acquisition
transaction entered into prior to the applicable Extension Period, (b) as a
result of any exchange or conversion of any class or series of the Debenture
Issuer’s capital stock (or any capital stock of a subsidiary of the Debenture
Issuer) for any class or series of the Debenture Issuer’s capital stock or of
any class or series of the Debenture Issuer’s indebtedness for any class or
series of the Debenture Issuer’s capital stock, (c) the purchase of fractional
interests in shares of the Debenture Issuer’s capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder’s rights plan, or the issuance of rights, stock or other property
under any stockholder’s rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks *pari
passu* with or
junior to such stock). Prior to the termination of any Extension Period, the
Debenture Issuer may further extend such period, provided , that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date, Redemption Date or Special Redemption Date. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No
interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but Deferred Interest shall accrue upon each
installment of interest that would otherwise have been due and payable during
such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates, or, if such date is not a Distribution Payment
Date, on the immediately following Distribution Payment Date, to Holders of the
Securities as they appear on the books and records of the Trust on the record
date immediately preceding such date. Distributions on the Securities must be
paid on the dates payable (after giving effect to any Extension Period) to the
extent that the Trust has funds legally available for the payment of such
distributions in the Property Account of the Trust. The Trust’s funds available
for Distribution to the Holders of the Securities will be limited to payments
received from the Debenture Issuer. The payment of Distributions out of moneys
held by the Trust is guaranteed by the Guarantor pursuant to the
Guarantee.
  A-I-3
 (f)  Distributions
on the Securities will be payable to the Holders thereof as they appear on the
books and records of the Registrar on the relevant record dates. The relevant
record dates shall be selected by the Administrators, which dates shall be 15
days before the relevant payment dates. Distributions payable on any Securities
that are not punctually paid on any Distribution Payment Date, as a result of
the Debenture Issuer having failed to make a payment under the Debentures, as
the case may be, when due (taking into account any Extension Period), will cease
to be payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable to
the Person in whose name such Securities are registered on the special record
date or other specified date determined in accordance with the Indenture. If any
Distribution Payment Date falls on a day that is not a Business Day, then
Distributions payable on such date will be made on the next succeeding Business
Day, in each case with the same force and effect as if made on the applicable
Distribution Payment Date.
  (g)  In the
event that there is any money or other property held by or for the Trust that is
not accounted for hereunder, such property shall be distributed pro rata (as
defined herein) among the Holders of the Securities.
  3.  Liquidation
Distribution upon Dissolution . In the
event of the voluntary or involuntary liquidation, dissolution, winding-up or
termination of the Trust (each, a “Liquidation”) other than in connection with a
redemption of the Debentures, the Holders of the Securities will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
the Securities, after satisfaction of liabilities to creditors of the Trust (to
the extent not satisfied by the Debenture Issuer), distributions equal to the
aggregate of the stated liquidation amount of $1,000 per Security plus accrued
and unpaid Distributions thereon to the date of payment (such amount being the
“Liquidation Distribution”), unless in connection with such Liquidation, the
Debentures in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of such Securities, with an interest rate equal to the Coupon
Rate of, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on, and having the same record date as, such
Securities, after paying or making reasonable provision to pay all claims and
obligations of the Trust in accordance with Section 3808(e) of the Statutory
Trust Act, shall be distributed on a Pro Rata basis to the Holders of the
Securities in exchange for such Securities.
  A-I-4
 The
Sponsor, as the Holder of all of the Common Securities, has the right at any
time, upon receipt of an opinion of nationally recognized tax counsel that
Holders will not recognize any gain or loss for United States Federal income tax
purposes as a result of the distribution of Debentures, to dissolve the Trust
(including without limitation upon the occurrence of a Tax Event, an Investment
Company Event or a Capital Treatment Event), subject to the receipt by the
Debenture Issuer of prior approval from the Board of Governors of the Federal
Reserve System (the “Federal Reserve”), if then required under applicable
capital guidelines or policies of the Federal Reserve and, after satisfaction of
liabilities to creditors of the Trust, cause the Debentures to be distributed to
the Holders of the Securities on a Pro Rata basis in accordance with the
aggregate stated liquidation amount thereof.
  The Trust
shall dissolve on the first to occur of (i) December 16, 2039, the expiration of
the term of the Trust, (ii) a Bankruptcy Event with respect to the Sponsor, the
Trust or the Debenture Issuer, (iii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the Indenture, this
Declaration or the Guarantee, as the case may be) the filing of a certificate of
dissolution of the Sponsor or upon the revocation of the charter of the Sponsor
and the expiration of 90 days after the date of revocation without a
reinstatement thereof, (iv) the distribution to the Holders of the Securities of
the Debentures, upon exercise of the right of the Holder of all of the
outstanding Common Securities to dissolve the Trust as described above, (v) the
entry of a decree of a judicial dissolution of the Sponsor or the Trust, or (vi)
the date when all of the Securities shall have been called for redemption and
the amounts necessary for redemption thereof shall have been paid to the Holders
in accordance with the terms of the Securities. As soon as practicable after the
dissolution of the Trust and upon completion of the winding up of the Trust, the
Trust shall terminate upon the filing of a certificate of cancellation with the
Secretary of State of the State of Delaware.
  If a
Liquidation of the Trust occurs as described in clause (i), (ii), (iii) or (v)
in the immediately preceding paragraph, the Trust shall be liquidated by the
Institutional Trustee of the Trust as expeditiously as such Trustee determines
to be possible by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to the Holders of the Securities,
the Debentures on a Pro Rata basis to the extent not satisfied by the Debenture
Issuer, unless such distribution is determined by the Institutional Trustee not
to be practical, in which event such Holders will be entitled to receive out of
the assets of the Trust available for distribution to the Holders, after
satisfaction of liabilities to creditors of the Trust to the extent not
satisfied by the Debenture Issuer, an amount equal to the Liquidation
Distribution. An early Liquidation of the Trust pursuant to clause (iv) of
the immediately preceding paragraph shall occur if the Institutional Trustee
determines that such Liquidation is possible by distributing, after satisfaction
of liabilities to creditors of the Trust, to the Holders of the Securities on a
Pro Rata basis, the Debentures, and such distribution occurs.
  If, upon
any such Liquidation, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Trust on such
Capital Securities shall be paid to the Holders of the Securities on a Pro Rata
basis, except that if an Event of Default has occurred and is continuing, the
Capital Securities shall have a preference over the Common Securities with
regard to such distributions.
  Upon any
such Liquidation of the Trust involving a distribution of the Debentures, if at
the time of such Liquidation, the Capital Securities were rated by at least one
nationally-recognized statistical rating organization, the Debenture Issuer will
use its reasonable best efforts to obtain from at least one such or other rating
organization a rating for the Debentures.
  A-I-5
 After the
date for any distribution of the Debentures upon dissolution of the Trust, (i)
the Securities of the Trust will be deemed to be no longer outstanding, (ii) any
certificates representing the Capital Securities will be deemed to represent
undivided beneficial interests in such of the Debentures as have an aggregate
principal amount equal to the aggregate stated liquidation amount of, with an
interest rate identical to the distribution rate of, and bearing accrued and
unpaid interest equal to accrued and unpaid distributions on, the Securities
until such certificates are presented to the Debenture Issuer or its agent for
transfer or reissuance (and until such certificates are so surrendered, no
payments of interest or principal shall be made to Holders of Securities in
respect of any payments due and payable under the Debentures) and (iii) all
rights of Holders of Securities under the Capital Securities or the Common
Securities, as applicable, shall cease, except the right of such Holders to
receive Debentures upon surrender of certificates representing such
Securities.
  4.  Redemption
and Distribution .
  (a)  The
Debentures will mature on December 16, 2034. The Debentures may be redeemed by
the Debenture Issuer, in whole or in part, on any Distribution Payment Date on
or after December 16, 2009, at the Redemption Price, upon not less
than 30 nor more than 60 days’ notice to Holders of such Debentures. In
addition, upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event, the Debentures may be redeemed by
the Debenture Issuer in whole but not in part, at any time within 90 days
following the occurrence of such Tax Event, Investment Company Event or Capital
Treatment Event, as the case may be (the “Special Redemption Date”), at the
Special Redemption Price, upon not less than 30 nor more than 60 days’ notice to
Holders of the Debentures so long as such Tax Event, Investment Company Event or
Capital Treatment Event, as the case may be, is continuing. In each case, the
right of the Debenture Issuer to redeem the Debentures is subject to the
Debenture Issuer having received prior approval from the Federal Reserve, if
then required under applicable capital guidelines or policies of the Federal
Reserve.
  “Tax
Event” means the receipt by the Debenture Issuer and the Trust of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, regulatory procedure, notice or announcement)(an
“Administrative Action”) or judicial decision interpreting or applying such laws
or regulations, regardless of whether such Administrative Action or judicial
decision is issued to or in connection with a proceeding involving the Debenture
Issuer or the Trust and whether or not subject to review or appeal, which
amendment, clarification, change, Administrative Action or decision is enacted,
promulgated or announced, in each case on or after the date of original issuance
of the Debentures, there is more than an insubstantial risk that: (i) the Trust
is, or will be within 90 days of the date of such opinion, subject to United
States federal income tax with respect to income received or accrued on the
Debentures; (ii) interest payable by the Debenture Issuer on the Debentures is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Debenture Issuer, in whole or in part, for United States federal income tax
purposes; or (iii) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes (including
withholding taxes), duties, assessments or other governmental
charges.
  “Investment
Company Event” means the receipt by the Debenture Issuer and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of a change in law or regulation or written change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Trust is or, within 90 days of the date of such opinion will be, considered
an “investment company” that is required to be registered under the Investment
Company Act, which change or prospective change becomes effective or would
become effective, as the case may be, on or after the date of the original
issuance of the Debentures.
  A-I-6
 “Capital
Treatment Event” means the receipt by the Debenture Issuer and the Trust of an
opinion of counsel experienced in such matters to the effect that, as a result
of any amendment to, or change in, the laws, rules or regulations of the United
States or any political subdivision thereof or therein, or as the result of any
official or administrative pronouncement or action or decision interpreting or
applying such laws, rules or regulations, which amendment or change is effective
or which pronouncement, action or decision is announced on or after the date of
original issuance of the Debentures, there is more than an insubstantial risk
that the Debenture Issuer will not, within 90 days of the date of such opinion,
be entitled to treat an amount equal to the aggregate Liquidation Amount of the
Capital Securities as “Tier 1 Capital” (or the then equivalent thereof) for
purposes of the capital adequacy guidelines of the Federal Reserve (or any
successor regulatory authority with jurisdiction over bank holding companies),
as then in effect and applicable to the Debenture Issuer; provided , however , that
the distribution of the Debentures in connection with the Liquidation of the
Trust by the Debenture Issuer shall not in and of itself constitute a Capital
Treatment Event unless such Liquidation shall have occurred in connection with a
Tax Event or an Investment Company Event. For the avoidance of doubt, the
adoption by the Federal Reserve of any of the proposals set forth in its notice
of proposed rulemaking dated May 6, 2004 as a final rule shall not constitute a
Capital Treatment Event.
  “Special
Event” means any of a Capital Treatment Event, a Tax Event or an Investment
Company Event.
  “Redemption
Price” means
100% of the principal amount of the Debentures being redeemed plus
accrued and unpaid interest on such Debentures to the Redemption Date or, in the
case of redemption in full at maturity, the Maturity Date, or, in the case of a
redemption due to the occurrence of a Special Event, to the Special Redemption
Date if such Special Redemption Date is on or after
December 16, 2009.
  “Special
Redemption Price” means (1) if the Special Redemption Date is before
December 16, 2009, the greater of (a) 100% of the principal amount of
the Debentures being redeemed pursuant to Section 10.02 of the Indenture or (b)
as determined by a Quotation Agent, the sum of the present value of the
principal amount payable as part of the Redemption Price with respect to a
redemption as of December 16, 2009, together with the present value of
interest payments over the Remaining Life of such Debentures calculated at a
fixed per annum rate of interest equal to 7.12%, discounted to the Special
Redemption Date on a quarterly basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 0.50%, plus, in the case of
either (a) or (b), accrued and unpaid interest on such Debentures to the Special
Redemption Date and (2) if the Special Redemption Date is on or after
December 16, 2009, the Redemption  Price for
such Special Redemption Date.
  “Comparable
Treasury Issue” means with respect to any Special Redemption Date, the United
States Treasury security selected by the Quotation Agent as having a maturity
comparable to the Remaining Life that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the Remaining
Life. If no United States Treasury security has a maturity which is within a
period from three months before to three months after
December 16, 2009, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury Issue, and the
Treasury Rate shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month using such securities.
  “Comparable
Treasury Price” means (a) the average of five Reference Treasury Dealer
Quotations for such Special Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (b) if the Quotation Agent
obtains fewer than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
  A-I-7
 “Primary
Treasury Dealer” means a primary United States Government securities dealer in
New York City.
  “Quotation
Agent” means Citigroup Global Markets Inc. and its successors; provided , however , that if
the foregoing shall cease to be a Primary Treasury Dealer, the Debenture Issuer
shall substitute therefor another Primary Treasury Dealer.
  “Redemption
Date” means the date fixed for the redemption of Capital Securities, which shall
be any Distribution Payment Date on or after
December 16, 2009.
  “Reference
Treasury Dealer” means (i) the Quotation Agent and (ii) any other Primary
Treasury Dealer selected by the Debenture Trustee after consultation with the
Debenture Issuer.
  “Reference
Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Special Redemption Date, the average, as determined by the
Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Special Redemption
Date.
  “Remaining
Life” means, with respect to any Debentures the period from the Special
Redemption Date for such Debentures to December 16, 2009.
  “Treasury
Rate” means (i) the yield, under the heading which represents the average for
the week immediately prior to the date of calculation, appearing in the most
recently published statistical release designated H.15 (519) or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption “Treasury Constant Maturities,” for the
maturity corresponding to the Remaining Life (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Remaining Life shall be determined
and the Treasury Rate shall be interpolated or extrapolated from such yields on
a straight-line basis, rounding to the nearest month) or (ii) if such release
(or any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the quarterly equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such Special Redemption Date. The Treasury Rate shall be calculated on the third
Business Day preceding the Special Redemption Date.
  (b)  Upon
repayment at maturity or redemption in whole or in part of the Debentures (other
than following the distribution of the Debentures to the Holders of the
Securities), the proceeds from such repayment or payment shall concurrently be
applied to redeem Pro Rata at the applicable Redemption Price, Securities having
an aggregate liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed; provided , however , that
holders of such Securities shall be given not less than 30 nor more than 60
days’ notice of such redemption (other than at the scheduled maturity of the
Debentures).
  (c)  If fewer
than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata and the Capital Securities
to be redeemed will be as described in Section 4(e)(ii) below.
  A-I-8
 (d)  The Trust
may not redeem fewer than all the outstanding Capital Securities unless all
accrued and unpaid Distributions have been paid on all Capital Securities for
all quarterly Distribution periods terminating on or before the date of
redemption.
  (e)  Redemption
or Distribution Procedures.
  (i)  Notice of
any redemption of, or notice of distribution of the Debentures in exchange for,
the Securities (a “Redemption/Distribution Notice”) will be given by the Trust
by mail to each Holder of Securities to be redeemed or exchanged not fewer than
30 nor more than 60 days before the date fixed for redemption or exchange
thereof which, in the case of a redemption, will be the date fixed for
redemption of the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are given pursuant to this
Section 4(e)(i), a Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail, postage prepaid, to
Holders of such Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of such Securities at the address of each such Holder
appearing on the books and records of the Registrar. No defect in the
Redemption/Distribution Notice or in the mailing thereof with respect to any
Holder shall affect the validity of the redemption or exchange proceedings with
respect to any other Holder.
  (ii)  In the
event that fewer than all the outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro Rata from each Holder of Capital
Securities.
  (iii)  If the
Securities are to be redeemed and the Trust gives a Redemption/Distribution
Notice, which notice may only be issued if the Debentures are redeemed as set
out in this Section 4 (which notice will be irrevocable), then, provided , that
the Institutional Trustee has a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Institutional Trustee will
pay the relevant Redemption Price to the Holders of such Securities by check
mailed to the address of each such Holder appearing on the books and records of
the Trust on the redemption date. If a Redemption/Distribution Notice shall have
been given and funds deposited as required, then immediately prior to the close
of business on the date of such deposit, Distributions will cease to accrue on
the Securities so called for redemption and all rights of Holders of such
Securities so called for redemption will cease, except the right of the Holders
of such Securities to receive the applicable Redemption Price or Special
Redemption Price specified in Section 4(a), but without interest on such
Redemption Price. If any date fixed for redemption of Securities is not a
Business Day, then payment of any such Redemption Price or Special Redemption
Price payable on such date will be made on the next succeeding day that is a
Business Day except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on such date fixed for
redemption. If payment of the Redemption Price or Special Redemption Price in
respect of any Securities is improperly withheld or refused and not paid either
by the Trust or by the Debenture Issuer as guarantor pursuant to the Guarantee,
Distributions on such Securities will continue to accrue at the then applicable
rate from the original redemption date to the actual date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price or Special Redemption Price. 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.
  A-I-9
 (iv)  Redemption/Distribution
Notices shall be sent by the Administrators on behalf of the Trust (A) in
respect of the Capital Securities, to the Holders thereof, and (B) in respect of
the Common Securities, to the Holder thereof.
  (v)  Subject
to the foregoing and applicable law (including, without limitation, United
States federal securities laws), and provided , that
the acquiror is not the Holder of the Common Securities or the obligor under the
Indenture, the Sponsor or any of its subsidiaries may at any time and from time
to time purchase outstanding Capital Securities by tender, in the open market or
by private agreement.
  5.  Voting
Rights - Capital Securities . (a) Except
as provided under Sections 5(b) and 7 and as otherwise required by law and the
Declaration, the Holders of the Capital Securities will have no voting rights.
The Administrators are required to call a meeting of the Holders of the Capital
Securities if directed to do so by Holders of not less than 10% in liquidation
amount of the Capital Securities.
  (b)  Subject
to the requirements of obtaining a tax opinion by the Institutional Trustee in
certain circumstances set forth in the last sentence of this paragraph, the
Holders of a Majority in liquidation amount of the Capital Securities, voting
separately as a class, have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Institutional Trustee,
or exercising any trust or power conferred upon the Institutional Trustee under
the Declaration, including the right to direct the Institutional Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture as the holder of the Debentures, (ii) waive any past default that is
waivable under the Indenture, (iii) exercise any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and payable
or (iv) consent on behalf of all the Holders of the Capital Securities to any
amendment, modification or termination of the Indenture or the Debentures where
such consent shall be required; provided , however , that,
where a consent or action under the Indenture would require the consent or act
of the holders of greater than a simple majority in principal amount of
Debentures (a “Super Majority”) affected thereby, the Institutional Trustee may
only give such consent or take such action at the written direction of the
Holders of not less than the proportion in liquidation amount of the Capital
Securities outstanding which the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding. If the Institutional
Trustee fails to enforce its rights under the Debentures after the Holders of a
Majority 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. Where such
default constitutes an Indenture Event of Default, such notice shall state that
such Indenture Event of Default also constitutes an Event of Default hereunder.
Except with respect to directing the time, method and place of conducting a
proceeding for a remedy, the Institutional Trustee shall not take any of the
actions described in clause (i), (ii) or (iii) above unless the Institutional
Trustee has obtained an opinion of tax counsel to the effect that, as a result
of such action, the Trust will not be classified as other than a grantor trust
for United States federal income tax purposes.
  A-I-10
 In the
event the consent of the Institutional Trustee, as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification or
termination of the Indenture, the Institutional Trustee shall request the
written direction of the Holders of the Securities with respect to such
amendment, modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided , however , that
where a consent under the Indenture would require the consent of a Super
Majority, the Institutional Trustee may only give such consent at the written
direction of the Holders of not less than the proportion in liquidation amount
of such Securities outstanding which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. The Institutional
Trustee shall not take any such action in accordance with the written directions
of the Holders of the Securities unless the Institutional Trustee has obtained
an opinion of tax counsel to the effect that, as a result of such action, the
Trust will not be classified as other than a grantor trust for United States
federal income tax purposes.
  A waiver
of an Indenture Event of Default will constitute a waiver of the corresponding
Event of Default hereunder. Any required approval or direction of Holders of the
Capital Securities may be given at a separate meeting of Holders of the Capital
Securities convened for such purpose, at a meeting of all of the Holders of the
Securities in the Trust or pursuant to written consent. The Institutional
Trustee will cause a notice of any meeting at which Holders of the Capital
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record of
the Capital Securities. Each such notice will include a statement setting forth
the following information (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents. No vote or consent of the Holders of the
Capital Securities will be required for the Trust to redeem and cancel Capital
Securities or to distribute the Debentures in accordance with the Declaration
and the terms of the Securities.
  Notwithstanding
that Holders of the Capital Securities are entitled to vote or consent under any
of the circumstances described above, any of the Capital Securities that are
owned by the Sponsor or any Affiliate of the Sponsor shall not entitle the
Holder thereof to vote or consent and shall, for purposes of such vote or
consent, be treated as if such Capital Securities were not
outstanding.
  In no
event will Holders of the Capital Securities have the right to vote to appoint,
remove or replace the Administrators, which voting rights are vested exclusively
in the Sponsor as the Holder of all of the Common Securities of the Trust. Under
certain circumstances as more fully described in the Declaration, Holders of
Capital Securities have the right to vote to appoint, remove or replace the
Institutional Trustee and the Delaware Trustee.
  6.  Voting
Rights - Common Securities . (a) Except
as provided under Sections 6(b), 6(c) and 7 and as otherwise required by law and
the Declaration, the Common Securities will have no voting rights.
  (b)  The
Holders of the Common Securities are entitled, in accordance with Article IV of
the Declaration, to vote to appoint, remove or replace any
Administrators.
  A-I-11
 (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) waiving any past default and its consequences that are
waivable under the Indenture, or (iii) exercising any right to rescind or annul
a declaration that the principal of all the Debentures shall be due and payable, provided , however , that,
where a consent or action under the Indenture would require a Super Majority,
the Institutional Trustee may only give such consent or take such action at the
written direction of the Holders of not less than the proportion in liquidation
amount of the Common Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. Notwithstanding
this Section 6(c), the Institutional Trustee shall not revoke any action
previously authorized or approved by a vote or consent of the Holders of the
Capital Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Institutional
Trustee or the Debenture Trustee as set forth above, the Institutional Trustee
shall not take any action described in clause (i), (ii) or (iii) above, unless
the Institutional Trustee has obtained an opinion of tax counsel to the effect
that for the purposes of United States federal income tax the Trust will not be
classified as other than a grantor trust on account of such action. If the
Institutional Trustee fails to enforce its rights under the Declaration, to the
fullest extent permitted by law any Holder of the Common Securities may
institute a legal proceeding directly against any Person to enforce the
Institutional Trustee’s rights under the Declaration, without first instituting
a legal proceeding against the Institutional Trustee or any other
Person.
  Any
approval or direction of Holders of the Common Securities may be given at a
separate meeting of Holders of the Common Securities convened for such purpose,
at a meeting of all of the Holders of the Securities in the Trust or pursuant to
written consent. The Administrators will cause a notice of any meeting at which
Holders of the Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of the Common Securities. Each such notice will include a statement
setting forth (i) the date of such meeting or the date by which such action is
to be taken, (ii) a description of any resolution proposed for adoption at such
meeting on which such Holders are entitled to vote or of such matter upon which
written consent is sought and (iii) instructions for the delivery of proxies or
consents.
  No vote
or consent of the Holders of the Common Securities will be required for the
Trust to redeem and cancel Common Securities or to distribute the Debentures in
accordance with the Declaration and the terms of the Securities.
  7.  Amendments
to Declaration and Indenture . (a) In
addition to any requirements under Section 11.1 of the Declaration, if any
proposed amendment to the Declaration provides for, or the Trustees otherwise
propose to effect, (i) any action that would adversely affect the powers,
preferences or special rights of the Securities, whether by way of amendment to
the Declaration or otherwise, or (ii) the Liquidation of the Trust, other than
as described in Section 7.1 of the Declaration, then the Holders of outstanding
Securities, voting together as a single class, will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of not less than a Majority in
liquidation amount of the Securities affected thereby; provided , however , if any
amendment or proposal referred to in clause (i) above would adversely affect
only the Capital Securities or only the Common Securities, then only the
affected class will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of a
Majority in liquidation amount of such class of Securities.
  A-I-12
 (b)  In the
event the consent of the Institutional Trustee as the holder of the Debentures
is required under the Indenture with respect to any amendment, modification or
termination of the Indenture or the Debentures, the Institutional Trustee shall
request the written direction of the Holders of the Securities with respect to
such amendment, modification or termination and shall vote with respect to such
amendment, modification, or termination as directed by a Majority in liquidation
amount of the Securities voting together as a single class; provided , however , that
where a consent under the Indenture would require a Super Majority, the
Institutional Trustee may only give such consent at the written direction of the
Holders of not less than the proportion in liquidation amount of the Securities
which the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding.
  (c)  Notwithstanding
the foregoing, no amendment or modification may be made to the Declaration if
such amendment or modification would (i) cause the Trust to be classified for
purposes of United States federal income taxation as other than a grantor trust,
(ii) reduce or otherwise adversely affect the powers of the Institutional
Trustee or (iii) cause the Trust to be deemed an “investment company” which is
required to be registered under the Investment Company Act.
  (d)  Notwithstanding
any provision of the Declaration, the right of any Holder of the Capital
Securities to receive payment of distributions and other payments upon
redemption or otherwise, on or after their respective due dates, or to institute
a suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder. For
the protection and enforcement of the foregoing provision, each and every Holder
of the Capital Securities shall be entitled to such relief as can be given
either at law or equity.
  8.  Pro
Rata . A
reference in these terms of the Securities to any payment, distribution or
treatment as being “Pro Rata” shall mean pro rata to each Holder of the
Securities according to the aggregate liquidation amount of the Securities held
by the relevant Holder in relation to the aggregate liquidation amount of all
Securities outstanding unless, in relation to a payment, an Event of Default has
occurred and is continuing, in which case any funds available to make such
payment shall be paid first to each Holder of the Capital Securities Pro Rata
according to the aggregate liquidation amount of the Capital Securities held by
the relevant Holder relative to the aggregate liquidation amount of all Capital
Securities outstanding, and only after satisfaction of all amounts owed to the
Holders of the Capital Securities, to each Holder of the Common Securities Pro
Rata according to the aggregate liquidation amount of the Common Securities held
by the relevant Holder relative to the aggregate liquidation amount of all
Common Securities outstanding.
  9.  Ranking . The
Capital Securities rank *pari
passu* with,
and payment thereon shall be made Pro Rata with, the Common Securities except
that, where an Event of Default has occurred and is continuing, the rights of
Holders of the Common Securities to receive payment of Distributions and
payments upon liquidation, redemption and otherwise are subordinated to the
rights of the Holders of the Capital Securities with the result that no payment
of any Distribution on, or Redemption Price or Special Redemption Price of, any
Common Security, and no other payment on account of redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions on all outstanding Capital
Securities for all distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price or Special Redemption Price the full
amount of such Redemption Price or Special Redemption Price on all outstanding
Capital Securities then called for redemption, shall have been made or provided
for, and all funds immediately available to the Institutional Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price or Special Redemption Price of, the Capital Securities then due
and payable.
  A-I-13
 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, and the issuance of the Securities is
not subject to, preemptive or similar rights to subscribe for any additional
securities.
  12.  Miscellaneous . These
terms constitute a part of the Declaration. The Sponsor will provide a copy of
the Declaration, the Guarantee and the Indenture to a Holder without charge on
written request to the Sponsor at its principal place of business.
  
   A-I-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”), OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO THE DEBENTURE ISSUER OR THE
TRUST, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A
PERSON THE HOLDER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (C) TO A “NON U.S.-PERSON” IN AN “OFFSHORE
TRANSACTION” PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO
AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT TO AN
“ACCREDITED INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF AN “ACCREDITED INVESTOR,” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE DEBENTURE ISSUER’S AND THE TRUST’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM IN ACCORDANCE WITH THE AMENDED AND RESTATED DECLARATION OF TRUST, A COPY
OF WHICH MAY BE OBTAINED FROM THE DEBENTURE ISSUER OR THE TRUST. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE
FOREGOING RESTRICTIONS.
  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS AND WARRANTS
THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS SECURITY UNLESS
SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT.
  THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES, REPRESENTS AND
WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL RETIREMENT ACCOUNT OR
OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), (EACH A “PLAN”), OR AN ENTITY
WHOSE UNDERLYING ASSETS INCLUDE “PLAN ASSETS” BY REASON OF ANY PLAN’S INVESTMENT
IN THE ENTITY AND NO PERSON INVESTING “PLAN ASSETS” OF ANY PLAN MAY ACQUIRE OR
HOLD THIS SECURITY OR ANY INTEREST THEREIN, UNLESS SUCH PURCHASER OR HOLDER IS
ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38, 90-1 OR 84-14 OR
ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF THIS SECURITY IS NOT
PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO
SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THIS SECURITY OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING
THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF
SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF THE CODE IS
APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN EMPLOYEE BENEFIT
PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF ANY EMPLOYEE
BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH PURCHASE WILL NOT
RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
  A-1-1
 IN
CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND
TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
AMENDED AND RESTATED DECLARATION OF TRUST TO CONFIRM THAT THE TRANSFER COMPLIES
WITH THE FOREGOING RESTRICTIONS.
  THIS
SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING A
LIQUIDATION AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A LIQUIDATION
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
  
   A-1-2
   Certificate
Number  P-1    Number of
Capital Securities [_______]
  CUSIP NO
[___________]
  Certificate
Evidencing Capital Securities
  of
  Vineyard
Statutory Trust VII
  Floating
Rate TruPS ®
  (liquidation
amount $1,000 per Capital Security)
  Vineyard
Statutory Trust VII, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that [______________] (the “Holder”) is
the registered owner of 10,000 capital securities of the Trust representing
undivided beneficial interests in the assets of the Trust, designated the
Floating Rate TruPS ® (liquidation amount $1,000 per Capital Security) (the “Capital Securities”).
Subject to the Declaration (as defined below), the Capital Securities are
transferable on the books and records of the Trust, in person or by a duly
authorized attorney, upon surrender of this Certificate duly endorsed and in
proper form for transfer. The Capital Securities represented hereby are issued
pursuant to, and the designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities shall in all respects
be subject to, the provisions of the Amended and Restated Declaration of Trust
of the Trust, dated as of  December
22, 2004, among Norman A. Morales and Gordon Fong, as Administrators, Wells
Fargo Delaware Trust Company , as
Delaware Trustee, Wells
Fargo Bank, National Association , as
Institutional Trustee, Vineyard National Bancorp, as Sponsor, and the holders
from time to time of undivided beneficial interests in the assets of the Trust,
including the designation of the terms of the Capital Securities as set forth in
Annex I to the Declaration, as the same may be amended from time to time (the
“Declaration”). Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits of
the Guarantee to the extent provided therein. The Sponsor will provide a copy of
the Declaration, the Guarantee, and the Indenture to the Holder without charge
upon written request to the Sponsor at its principal place of
business.
  By
acceptance of this Security, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
  By
acceptance of this Security, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Capital
Securities as evidence of beneficial ownership in the Debentures.
  This
Capital Security is governed by, and shall be construed in accordance with, the
laws of the State of Delaware, without regard to principles of conflict of
laws.
   A-1-3
  IN
WITNESS WHEREOF, the Trust has duly executed this certificate.
  Vineyard
Statutory Trust VII
  By:________________________________
  Name:
  Title:
Administrator
  Dated:
___________________________
  CERTIFICATE
OF AUTHENTICATION
  This is
one of the Capital Securities referred to in the within-mentioned
Declaration.
  Wells
Fargo Bank, National Association,
 not in
its individual capacity but solely as the Institutional Trustee
  By:_______________________________
  Authorized
Officer
  Dated:
___________________________
  
   A-1-4
   [FORM OF
REVERSE OF SECURITY]
  Subject
to the occurrence of a Reset Event, distributions payable on each Capital
Security will be payable at a variable per annum rate of interest, reset
quarterly, equal to LIBOR (as defined in the Declaration) plus 2.00% (the
“Coupon Rate”) of the stated liquidation amount of $1,000 per Capital Security,
such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. A Reset Event will occur if on any day specified by the
Initial Purchaser, Regional Diversified Funding 2004-II Ltd. or another pooled
trust preferred vehicle becomes the registered owner of the Capital Securities
(such day, the “Reset Date”). Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser. Except as set forth below in respect of an Extension Period,
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly period (to the extent permitted by applicable law). The term
“Distributions” as used herein includes cash distributions, any such compounded
distributions and any Additional Amounts payable on the Debentures unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds legally available in the Property
Account therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution Period on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution
Period.
  Except as
otherwise described below, Distributions on the Capital Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 16, June 16, September 16 and December 16 of each
year, commencing on March 16, 2005 (each, a “Distribution Payment Date”). The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period for up to 20
consecutive quarterly periods (each, an “Extension Period”) at any time and from
time to time on the Debentures, subject to the conditions described below,
during which Extension Period no interest shall be due and payable. During any
Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as “Deferred Interest”) will accrue at an annual rate equal
to the Coupon Rate in effect for each such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were it
not for the Extension Period, to the extent permitted by law. No Extension
Period may end on a date other than a Distribution Payment Date. At the end of
any such Extension Period, the Debenture Issuer shall pay all Deferred Interest
then accrued and unpaid on the Debentures; provided , however , that no
Extension Period may extend beyond the Maturity Date, Redemption Date or Special
Redemption Date. Prior to the termination of any Extension Period, the Debenture
Issuer may further extend such period, provided , that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date, Redemption Date or Special Redemption Date. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No
interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but Deferred Interest shall accrue upon each
installment of interest that would otherwise have been due and payable during
such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such
date. Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
legally available for the payment of such distributions in the Property Account
of the Trust. The Trust’s funds available for Distribution to the Holders of the
Securities will be limited to payments received from the Debenture Issuer. The
payment of Distributions out of moneys held by the Trust is guaranteed by the
Guarantor pursuant to the Guarantee.
  A-1-5
 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
 as agent
to transfer this Capital Security Certificate on the books of the Trust. The
agent may substitute another to act for it, him or her.
  Date:___________________________
  Signature:_______________________
  (Sign
exactly as your name appears on the other side of this Capital Security
Certificate)
  Signature
Guarantee: 1
   
 1
 Signature
must be guaranteed by an “eligible guarantor institution” that is a bank,
stockbroker, savings and loan association or credit union meeting the
requirements of the Security registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program (“STAMP”) or
such other “signature guarantee program” as may be determined by the Security
registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
  A-1-7
   **EXHIBIT
A-2**
  FORM OF
COMMON SECURITY CERTIFICATE
  THIS
COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAWS
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EXEMPTION FROM REGISTRATION.
  EXCEPT AS
SET FORTH IN SECTION 8.1(b) OF THE DECLARATION (AS DEFINED BELOW), THIS SECURITY
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED.
   A-2-1
  
  Certificate
Number  C-1   Number of
Common Securities 310
  Certificate
Evidencing Common Securities
  of
  Vineyard
Statutory Trust VII
  Vineyard
Statutory Trust VII, a statutory trust created under the laws of the State of
Delaware (the “Trust”), hereby certifies that Vineyard National Bancorp (the
“Holder”) is the registered owner of 310 common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
(liquidation amount $1,000 per Common Security)(the “Common Securities”). The
Common Securities represented hereby are issued pursuant to, and the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities shall in all respects be subject to, the
provisions of the Amended and Restated Declaration of Trust of the Trust, dated
as of December 22, 2004, among Norman A. Morales and Gordon Fong, as
Administrators, Wells
Fargo Delaware Trust Company , as
Delaware Trustee, Wells
Fargo Bank, National Association , as
Institutional Trustee, the Holder, as Sponsor, and the holders from time to time
of undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Common Securities as set forth in Annex I to the
Declaration, as the same may be amended from time to time (the “Declaration”).
Capitalized terms used herein but not defined shall have the meaning given them
in the Declaration. The Sponsor will provide a copy of the Declaration and the
Indenture to the Holder without charge upon written request to the Sponsor at
its principal place of business.
  As set
forth in the Declaration, when an Event of Default has occurred and is
continuing, the rights of Holders of Common Securities to payment in respect of
Distributions and payments upon Liquidation, redemption or otherwise are
subordinated to the rights of payment of Holders of the Capital
Securities.
  By
acceptance of this Certificate, the Holder is bound by the Declaration and is
entitled to the benefits thereunder.
  By
acceptance of this Certificate, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Common
Securities as evidence of undivided beneficial ownership in the
Debentures.
  This
Common Security is governed by, and shall be construed in accordance with, the
laws of the State of Delaware, without regard to principles of conflict of
laws.
  
   A-2-2
   IN
WITNESS WHEREOF, the Trust has executed this certificate this ___ day of ____,
2004.
  Vineyard
Statutory Trust VII
  By:______________________________
  Name:
  Title:
Administrator
  
   A-2-3
   [FORM OF
REVERSE OF SECURITY]
  Subject
to the occurrence of a Reset Event, distributions payable on each Common
Security will be identical in amount to the Distributions payable on each
Capital Security, which is at a variable per annum rate of interest, reset
quarterly, equal to LIBOR (as defined in the Declaration) plus 2.00% (the
“Coupon Rate”) of the stated liquidation amount of $1,000 per Capital Security,
such rate being the rate of interest payable on the Debentures to be held by the
Institutional Trustee. A Reset Event will occur if on any day specified by the
Initial Purchaser, Regional Diversified Funding 2004-II Ltd. or another pooled
trust preferred vehicle becomes the registered owner of the Capital Securities
(such day, the “Reset Date”). Upon the occurrence of a Reset Event, the
applicable LIBOR will be reset on the Reset Date to be equal to the LIBOR
applicable on the newly issued trust preferred capital securities with the same
LIBOR Determination Dates issued by other trust subsidiaries of bank holding
companies or thrift holding companies who issue LIBOR based 30 year floating
rate trust preferred capital securities to Regional Diversified Funding 2004-II
Ltd. or another pooled trust preferred vehicle designated by the Initial
Purchaser. Except as set forth below in respect of an Extension Period,
Distributions in arrears for more than one quarterly period will bear interest
thereon compounded quarterly at the applicable Coupon Rate for each such
quarterly period (to the extent permitted by applicable law). The term
“Distributions” as used herein includes cash distributions, any such compounded
distributions and any Additional Amounts payable on the Debentures unless
otherwise stated. A Distribution is payable only to the extent that payments are
made in respect of the Debentures held by the Institutional Trustee and to the
extent the Institutional Trustee has funds legally available in the Property
Account therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution Period on the basis of a 360-day
year and the actual number of days elapsed in the relevant Distribution
Period.
  Except as
otherwise described below, Distributions on the Common Securities will be
cumulative, will accrue from the date of original issuance and will be payable
quarterly in arrears on March 16, June 16, September 16 and December 16 of each
year, commencing on March 16, 2005 (each, a “Distribution Payment Date”). The
Debenture Issuer has the right under the Indenture to defer payments of interest
on the Debentures by extending the interest payment period for up to 20
consecutive quarterly periods (each, an “Extension Period”) at any time and from
time to time on the Debentures, subject to the conditions described below,
during which Extension Period no interest shall be due and payable. During any
Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest (such accrued interest and interest thereon
referred to herein as “Deferred Interest”) will accrue at an annual rate equal
to the Coupon Rate in effect for each such Extension Period, compounded
quarterly from the date such Deferred Interest would have been payable were it
not for the Extension Period, to the extent permitted by law. No Extension
Period may end on a date other than a Distribution Payment Date. At the end of
any such Extension Period, the Debenture Issuer shall pay all Deferred Interest
then accrued and unpaid on the Debentures; provided , however , that no
Extension Period may extend beyond the Maturity Date, Redemption Date or Special
Redemption Date. Prior to the termination of any Extension Period, the Debenture
Issuer may further extend such period, provided , that
such period together with all such previous and further consecutive extensions
thereof shall not exceed 20 consecutive quarterly periods, or extend beyond the
Maturity Date, Redemption Date or Special Redemption Date. Upon the termination
of any Extension Period and upon the payment of all Deferred Interest, the
Debenture Issuer may commence a new Extension Period, subject to the foregoing
requirements. No
interest or Deferred Interest shall be due and payable during an Extension
Period, except at the end thereof, but Deferred Interest shall accrue upon each
installment of interest that would otherwise have been due and payable during
such Extension Period until such installment is paid. The
deferral of the payment of interest during an Extension Period shall not defer
the payment of any Additional Amounts that may be due. If Distributions are
deferred, the Distributions due shall be paid on the date that the related
Extension Period terminates to Holders of the Securities as they appear on the
books and records of the Trust on the record date immediately preceding such
date. Distributions on the Securities must be paid on the dates payable (after
giving effect to any Extension Period) to the extent that the Trust has funds
legally available for the payment of such distributions in the Property Account
of the Trust. The Trust’s funds legally available for Distribution to the
Holders of the Securities will be limited to payments received from the
Debenture Issuer. The payment of Distributions out of moneys held by the Trust
is guaranteed by the Guarantor pursuant to the Guarantee.
  A-2-4
 The
Common Securities shall be redeemable as provided in the
Declaration.
  
   A-2-5
  
  ASSIGNMENT
  FOR VALUE
RECEIVED, the undersigned assigns and transfers this Common Security Certificate
to:
  (Insert
assignee’s social security or tax identification number)
  (Insert
address and zip code of assignee),
  and
irrevocably appoints  as agent
to transfer this Common Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
  Date:____________________________
  Signature:________________________
  (Sign
exactly as your name appears on the other side of this Common Security
Certificate)
  Signature
Guarantee: 2
 
 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**
  FORM OF
TRANSFEREE CERTIFICATE
  (UNLESS
EXHIBIT C APPLIES)
  __________,
[     ]
  Vineyard
National Bancorp
 Vineyard
Statutory Trust VII
 8105
Irvine Center Drive #600
 Irvine,
CA 92618
  Re:  Purchase
of $[   ] stated
liquidation amount of Floating Rate TruPS ®
  (the
“Capital Securities”) of Vineyard Statutory Trust VII
  Ladies
and Gentlemen:
  Reference
is hereby made to the Amended and Restated Declaration of Trust of Vineyard
Statutory Trust VII, dated as of December 22, 2004, as amended from time to time
(the “Declaration”), among Norman A. Morales and Gordon Fong, as Administrators, Wells
Fargo Delaware Trust Company , as
Delaware Trustee, Wells
Fargo Bank, National Association , as
Institutional Trustee, Vineyard National Bancorp, as Sponsor, and the holders
from time to time of undivided beneficial interests in the assets of Vineyard
Statutory Trust VII. Capitalized terms used but not defined herein shall have
the meanings given them in the Declaration.
  In
connection with our purchase of the Capital Securities we confirm
that:
  1.  We
understand that the Floating Rate TruPS ® (the
“Capital Securities”) of Vineyard Statutory Trust VII (the “Trust”) (including
the guarantee (the “Guarantee”) of Vineyard National Bancorp (the “Company”)
executed in connection therewith) and the Floating Rate Junior Subordinated Debt
Securities due 2034 of the Company (the “Subordinated Debt Securities”) (the
Capital Securities, the Guarantee and the Subordinated Debt Securities together
being referred to herein as the “Offered Securities”), have not been registered
under the Securities Act of 1933, as amended (the “Securities Act”), and may not
be offered or sold except as permitted in the following sentence. We agree on
our own behalf and on behalf of any investor account for which we are purchasing
the Capital Securities that, if we decide to offer, sell or otherwise transfer
any such Capital Securities, such offer, sale or transfer will be made only (a)
to the Company or the Trust, (b) pursuant to Rule 144A under the Securities Act,
to a person we reasonably believe is a qualified institutional buyer under Rule
144A (a “QIB”) that purchases for its own account or for the account of a QIB
and to whom notice is given that the transfer is being made in reliance on Rule
144A, (c) to a “Non-U.S. Person” in an “offshore transaction” pursuant to
Regulation S under the Securities Act, (d) pursuant to an exemption from
registration, to an “accredited investor” within the meaning of subparagraph (a)
(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring
Capital Securities for its own account or for the account of such an accredited
investor for investment purposes and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the Securities Act, or
(e) pursuant to another available exemption from the registration requirements
of the Securities Act, and in each of the foregoing cases in accordance with any
applicable state securities laws and any requirements of law that govern the
disposition of our property. The foregoing restrictions on resale will not apply
subsequent to the date on which, in the written opinion of counsel, the Capital
Securities are not “restricted securities” within the meaning of Rule 144 under
the Securities Act. If any resale or other transfer of the Capital Securities is
proposed to be made pursuant to clause (d) or (e) above, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Institutional Trustee as Transfer Agent, which shall provide as applicable,
among other things, that the transferee is an “accredited investor” within the
meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities
Act that is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. We acknowledge on our behalf
and on behalf of any investor account for which we are purchasing Securities
that the Trust and the Company reserve the right prior to any offer, sale or
other transfer pursuant to clause (d) or (e) to require the delivery of any
opinion of counsel, certifications and/or other information satisfactory to the
Trust and the Company. We understand that the certificates for any Capital
Security that we receive will bear a legend substantially to the effect of the
foregoing.
  B-1
 2.  We are an
“accredited investor” within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act purchasing for our own account or for
the account of such an “accredited investor,” and we are acquiring the Capital
Securities for investment purposes and not with view to, or for offer or sale in
connection with, any distribution in violation of the Securities Act, and we
have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Capital
Securities, and we and any account for which we are acting are each able to bear
the economic risks of our or its investment.
  3.  We are a
sophisticated institutional investor, have knowledge and experience in financial
matters and are capable of independently evaluating the merits and risks of our
investment decision with respect to the Capital Securities, and we have
conducted, to the extent we deemed necessary, an independent investigation of
such matters, as, in our judgment, is necessary for us to make an informed
investment decision with respect to the acquisition of an interest in the
Capital Securities.
  4.  We are
acquiring the Capital Securities purchased by us for our own account (or for one
or more accounts as to each of which we exercise sole investment discretion and
have authority to make, and do make, the statements contained in this letter)
and not with a view to any distribution of the Capital Securities, subject,
nevertheless, to the understanding that the disposition of our property will at
all times be and remain within our control.
  5.  In the
event that we purchase any Capital Securities, we will acquire such Capital
Securities having an aggregate stated liquidation amount of not less than
$100,000, for our own account and for each separate account for which we are
acting.
  6.  We
acknowledge that we either (A) are not a fiduciary of a pension, profit-sharing
or other employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) (a “Plan”), or an entity whose assets
include “plan assets” by reason of any Plan’s investment in the entity and are
not purchasing the Capital Securities on behalf of or with “plan assets” by
reason of any Plan’s investment in the entity and are not purchasing the Capital
Securities on behalf of or with “plan assets” of any Plan or (B) are eligible
for the exemptive relief available under one or more of the following prohibited
transaction class exemptions (“PTCEs”) issued by the U.S. Department of Labor:
PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
  B-2
 7.  We
acknowledge that the Trust and the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties and
agreements and agree that if any of the acknowledgments, representations,
warranties and agreements deemed to have been made by our purchase of the
Capital Securities are no longer accurate, we shall promptly notify the Initial
Purchaser. If we are acquiring any Capital Securities as a fiduciary or agent
for one or more investor accounts, we represent that we have sole discretion
with respect to each such investor account and that we have full power to make
the foregoing acknowledgments, representations and agreement on behalf of each
such investor account. You are irrevocably authorized to produce this letter or
a copy hereof to any interested party in any administrative or legal proceeding
or official inquiry with respect to the matters covered hereby.
  (Name of
Purchaser)
  By:________________________
  Date:______________________
  Upon
transfer, the Capital Securities would be registered in the name of the new
beneficial owner as follows.
  Name:_______________________________
  Address:_____________________________
  Taxpayer
ID Number:___________________
  
   B-3
   **EXHIBIT
C**
  FORM OF
TRANSFEROR CERTIFICATE
  TO BE
EXECUTED FOR QIBs OR REGULATION S TRANSFEREES
  __________,
[     ]
  Vineyard
National Bancorp
 Vineyard
Statutory Trust VII
 8105
Irvine Center Drive #600
 Irvine,
CA 92618
  Re:  Purchase
of $[   ] stated
liquidation amount of Floating Rate TruPS ®
  (the
“Capital Securities”) of Vineyard Statutory Trust VII
  Reference
is hereby made to the Amended and Restated Declaration of Trust of Vineyard
Statutory Trust VII, dated as of December 22, 2004, as amended from time to time
(the “Declaration”), among Norman A. Morales and Gordon Fong, as Administrators, Wells
Fargo Delaware Trust Company , as
Delaware Trustee, Wells
Fargo Bank, National Association , as
Institutional Trustee, Vineyard National Bancorp, as Sponsor, and the holders
from time to time of undivided beneficial interests in the assets of Vineyard
Statutory Trust VII. Capitalized terms used but not defined herein shall have
the meanings given them in the Declaration.
  This
letter relates to $[_______________] aggregate liquidation amount of Capital
Securities which are held in the name of [name of transferor] (the
“Transferor”).
  In
accordance with Section 8.2(b) of the Declaration, the Transferor does hereby
certify that such Capital Securities are being transferred in accordance with
the transfer restrictions set forth in the Capital Securities and:
  ________  Rule 144A
under the Securities Act (“Rule 144A”), to a transferee that the Transferor
reasonably believes is purchasing the Capital Securities for its own account or
an account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a “qualified institutional
buyer” within the meaning of Rule 144A, in a transaction meeting the
requirements of Rule 144A and in accordance with applicable securities laws of
any state of the United States or any other jurisdiction; or
  ________  Regulation
S under the Securities Act (“Regulation S”), to a person that is not a “U.S.
Person” for purposes of Regulation S in an “offshore transaction” for purposes
of Regulation S.
   C-1
  
  We
acknowledge that the Trust and the Sponsor and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, warranties and
agreements. You are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
  (Name of
Transferor)
  By:________________________
 Name:
 Title:
  Date:__________________________
   C-2