exv4w18






Exhibit 4.18




 


SECOND AMENDED AND RESTATED




TRUST AGREEMENT




AMONG




CNA FINANCIAL CORPORATION, AS DEPOSITOR,




THE
BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,







AS
PROPERTY TRUSTEE






BNY MELLON TRUST OF DELAWARE,

AS DELAWARE TRUSTEE,




AND




THE ADMINISTRATIVE TRUSTEES NAMED HEREIN




DATED AS OF                     , _____




CNA FINANCIAL CAPITAL [I][II][III]



 
 

 









 









TABLE OF CONTENTS




	 	 	 
	 	 	PAGE
	 
	 	 
	ARTICLE I Defined Terms
	 	1
	Section 1.1 Definitions
	 	1
	 
	 	 
	ARTICLE II Establishment of the Trust
	 	9
	 
	 	 
	Section 2.1 Name
	 	9
	Section 2.2 Office of the Delaware Trustee; Principal Place of
Business
	 	9
	Section 2.3 Initial Contribution of Trust Property;
Organizational Expenses
	 	9
	Section 2.4 Issuance of the Trust Securities
	 	10
	Section 2.5 Subscription and Purchase of Debentures
	 	10
	Section 2.6 Declaration of Trust
	 	10
	Section 2.7 Authorization to Enter into Certain Transactions
	 	11
	Section 2.8 Assets of Trust
	 	14
	Section 2.9 Title to Trust Property
	 	14
	 
	 	 
	ARTICLE III Payment Account
	 	14
	 
	 	 
	Section 3.1 Payment Account
	 	14
	 
	 	 
	ARTICLE IV Distributions; Redemption
	 	15
	 
	 	 
	Section 4.1 Distributions
	 	15
	Section 4.2 Redemption
	 	16
	Section 4.3 Subordination of Common Securities
	 	18
	Section 4.4 Payment Procedures
	 	18
	Section 4.5 Tax Returns and Reports
	 	19
	Section 4.6 Payment of Taxes, Duties,
	 	 
	 
	 	 
	Etc. of the Trust
	 	19
	 
	 	 
	Section 4.7 Reduction for Payments Under Junior Indenture
	 	19
	 
	 	 
	ARTICLE V Trust Securities Certificates
	 	19
	 
	 	 
	Section 5.1 Initial Ownership
	 	19
	Section 5.2 The Trust Securities Certificates
	 	20
	Section 5.3 Execution and Delivery of Trust Securities
Certificates
	 	20
	Section 5.4 Registration of Transfer and Exchange of Preferred
Securities Certificates
	 	20
	Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates
	 	21
	Section 5.6 Persons Deemed Securityholders
	 	21
	Section 5.7 Access to List of Securityholders’ Names and
Addresses
	 	21
	Section 5.8 Maintenance of Office or Agency
	 	22
	Section 5.9 Appointment of Paying Agent
	 	22
	Section 5.10 Ownership of Common Securities by Depositor; no
Transfer
	 	23
	Section 5.11 Book-Entry Preferred Securities Certificates; Common
Securities Certificate
	 	23
	Section 5.12 Notices to Clearing Agency
	 	24
	Section 5.13 Issuance of Definitive Preferred Securities
Certificates
	 	24
	Section 5.14 Rights of Securityholders
	 	25






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TABLE OF CONTENTS




(Continued)





	 	 	 
	 	 	PAGE
	ARTICLE VI Acts of Securityholders; Meetings; Voting
	 	27
	 
	 	 
	Section 6.1 Limitations on Voting Rights
	 	27
	Section 6.2 Notice of Meetings
	 	28
	Section 6.3 Meetings of Preferred Securityholders
	 	28
	Section 6.4 Voting Rights
	 	28
	Section 6.5 Proxies, Etc.
	 	28
	Section 6.6 Securityholder Action by Written Consent
	 	29
	Section 6.7 Record Date for Voting and Other Purposes
	 	29
	Section 6.8 Acts of Securityholders
	 	29
	Section 6.9 Inspection of Records
	 	31
	 
	 	 
	ARTICLE VII Representations and Warranties
	 	31
	 
	 	 
	Section 7.1 Representations and Warranties of The Bank And The
Bank (Delaware)
	 	31
	Section 7.2 Representations and Warranties of Depositor
	 	32
	 
	 	 
	ARTICLE VIII The Trustees
	 	32
	 
	 	 
	Section 8.1 Certain Duties and Responsibilities
	 	32
	Section 8.2 Notices of Defaults and Payment Deferrals
	 	34
	Section 8.3 Certain Rights of Property Trustee
	 	34
	Section 8.4 Not Responsible for Recitals or Issuance of
Securities
	 	36
	Section 8.5 May Hold Securities
	 	36
	Section 8.6 Compensation; Indemnity; Fees
	 	37
	Section 8.7 Corporate Property Trustee Required; Eligibility of
Trustees
	 	37
	Section 8.8 Conflicting Interests
	 	38
	Section 8.9 Co-Trustees and Separate Trustee
	 	38
	Section 8.10 Resignation and Removal; Appointment of Successor
	 	39
	Section 8.11 Acceptance of Appointment by Successor
	 	41
	Section 8.12 Merger, Conversion, Consolidation or Succession to
Business
	 	42
	Section 8.13 Preferential Collection of Claims Against Depositor
or Trust
	 	42
	Section 8.14 Reports by Property Trustee
	 	42
	Section 8.15 Reports to the Property Trustee
	 	42
	Section 8.16 Evidence of Compliance with Conditions Precedent
	 	43
	Section 8.17 Number of Trustees
	 	43
	Section 8.18 Delegation of Power
	 	43
	Section 8.19 Voting
	 	43
	 
	 	 
	ARTICLE IX Termination, Liquidation and Merger
	 	44
	 
	 	 
	Section 9.1 Termination Upon Expiration Date
	 	44
	Section 9.2 Early Termination
	 	44
	Section 9.3 Termination
	 	44
	Section 9.4 Liquidation
	 	45
	Section 9.5 Mergers, Consolidations, Amalgamations or
Replacements of the Trust
	 	46






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TABLE OF CONTENTS




(Continued)





	 	 	 
	 	 	PAGE
	ARTICLE X Miscellaneous Provisions
	 	47
	 
	 	 
	Section 10.1 Limitation of Rights of Securityholders
	 	47
	Section 10.2 Amendment
	 	47
	Section 10.3 Separability
	 	49
	Section 10.4 Governing Law
	 	49
	Section 10.5 Payments Due on Non-Business Day
	 	49
	Section 10.6 Successors
	 	49
	Section 10.7 Headings
	 	49
	Section 10.8 Reports, Notices and Demands
	 	49
	Section 10.9 Trust Indenture Act; Conflict with Trust Indenture
Act
	 	50
	Section 10.10 Acceptance of Terms of Trust Agreement, Guarantee
and Junior Indenture
	 	50






	 	 	 
	Exhibit	 	Document
	A

	 	Certificate of Trust
	B

	 	Certificate Depository Agreement
	C

	 	Common Securities Certificate
	D

	 	Expense Agreement
	E

	 	Preferred Securities Certificate






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CNA FINANCIAL CAPITAL [___]



          CERTAIN SECTIONS OF THIS TRUST AGREEMENT RELATING TO SECTION 310




               THROUGH 318 OF THE TRUST INDENTURE ACT OF 1939:



	 	 	 	 	 
	TRUST INDENTURE	 	 	 	TRUST
	ACT SECTION	 	 	 	AGREEMENT SECTION
	Section 310

	 	(a)(1)
	 	8.7
	 

	 	(a)(2)
	 	8.7
	 

	 	(a)(3)
	 	8.9
	 

	 	(a)(4)
	 	2.7(a) (ii)
	 

	 	(b)
	 	8.8
	Section 311

	 	(a)
	 	8.13
	 

	 	(b)
	 	8.13
	Section 312

	 	(a)
	 	5.7
	 

	 	(b)
	 	5.7
	 

	 	(c)
	 	5.7
	Section 313

	 	(a)
	 	8.14(a)
	 

	 	(a)(4)
	 	8.14(b)
	 

	 	(b)
	 	8.14(b)
	 

	 	(c)
	 	10.8
	 

	 	(d)
	 	8.14(c)
	Section 314

	 	(a)
	 	8.15
	 

	 	(b)
	 	Not Applicable
	 

	 	(c)(1)
	 	8.16
	 

	 	(c)(2)
	 	8.16
	 

	 	(c)(3)
	 	Not Applicable
	 

	 	(d)
	 	Not Applicable
	 

	 	(e)
	 	1.1, 8.16
	Section 315

	 	(a)
	 	8.1(a), 8.3(a)
	 

	 	(b)
	 	8.2, 10.8
	 

	 	(c)
	 	8.1(a)
	 

	 	(d)
	 	8.1, 8.3
	 

	 	(e)
	 	Not Applicable
	Section 316

	 	(a)
	 	Not Applicable
	 

	 	(a)(1)(A)
	 	Not Applicable
	 

	 	(a)(1)(B)
	 	Not Applicable
	 

	 	(a)(2)
	 	Not Applicable
	 

	 	(b)
	 	Not Applicable
	 

	 	(c)
	 	6.7
	Section 317

	 	(a)(1)
	 	Not Applicable
	 

	 	(a)(2)
	 	Not Applicable
	 

	 	(b)
	 	5.9
	Section 318

	 	(a)
	 	10.9






Note: This reconciliation and tie sheet shall not, for any purposes, be deemed
to be a part of this Trust Agreement.






-iv-











 




SECOND AMENDED AND RESTATED TRUST AGREEMENT, dated as of ___, ___,
among (i) CNA Financial Corporation, a Delaware corporation (including any
successors or assigns, the “Depositor”), (ii) The
Bank of New York Mellon Trust Company, N.A., a national banking association, as property trustee, (in
such capacity, the “Property Trustee,” and in its separate corporate capacity
and not in its capacity as Property Trustee, the “Bank” (iii) BNY Mellon Trust of
Delaware, a national banking association, as Delaware trustee (in
such capacity, “Delaware Trustee,” and, in its separate corporate capacity and
not in its capacity as Delaware Trustee, the “Bank (Delaware)”), (iv) D. Craig
Mense, an individual, and Dennis R. Hemme, an individual, each of whose address is
c/o CNA Financial Corporation, 333 South Wabash Avenue,Chicago, Illinois 60604 (each an
“Administrative Trustee” and collectively the “Administrative Trustees”) (the
Property Trustee, the Delaware Trustee and the Administrative Trustees referred
to collectively as the “Trustees”) and (iv) the several Holders, as hereinafter
defined.



WITNESSETH




     WHEREAS, the Depositor and certain of the Trustees have heretofore duly
declared and established a business trust pursuant to the Delaware Business
Trust Act by the entering into that certain Trust Agreement, dated as of
December 23, 1998 (the “Original Trust Agreement”), and by the execution and
filing with the Secretary of State of the State of Delaware of the Certificate
of Trust, filed on December 23, 1998, attached as Exhibit A hereto; and



     WHEREAS, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities (as hereinafter
defined) by the Trust to the Depositor, (ii) the issuance and sale of the
Preferred Securities (as hereinafter defined) by the Trust pursuant to the
Underwriting Agreement (as hereinafter defined), (iii) the acquisition by the
Trust from the Depositor of all of the right, title and interest in the Junior
Debt Securities (as hereinafter defined) and (iv) the appointment of the
Administrative Trustees;



     NOW THEREFORE, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:



ARTICLE I




DEFINED TERMS



SECTION 1.1 DEFINITIONS.




     For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:



     (a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;



     (b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;



 









 





     (c) unless the context otherwise requires, any reference to an “Article” or
a “Section” refers to an Article or a Section, as the case may be, of this Trust
Agreement; and



     (d) the words “herein,” “hereof” and “hereunder” and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.



     “Act” has the meaning specified in Section 6.8.



     “Additional Amount” means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest or
Additional Sums (as defined in the Junior Indenture), as applicable, paid by the
Depositor on a Like Amount of Junior Debt Securities for such period.



     “Additional Sums” has the meaning specified in Section 10.7 of the Junior
Indenture.



     “Administrative Trustee” means a Person satisfying the eligibility
requirements set forth in Section 8.7(b) and initially means D.
Craig Mense and Dennis R. Hemme, solely in such Person’s capacity as
Administrative Trustee of the Trust formed and continued hereunder and not in
such Person’s individual capacity, or such Administrative Trustee’s successor in
interest in such capacity, or any successor trustee appointed as herein
provided.



     “Affiliate” of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
“control”, when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.



     “Bank” has the meaning specified in the preamble to this Trust Agreement



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



     (a) the entry of a decree or order by a court having jurisdiction in the
premises adjudging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or



     (b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person, or of any substantial part of its



2









 




property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due and its willingness to be adjudicated a bankrupt or insolvent,
or the taking of corporate action by such Person in furtherance of any such
action.




     “Bankruptcy Laws” has the meaning specified in Section 10.9.



     “Board Resolution” means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor’s Board of Directors, or such committee of the Board of Directors or
officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustees.



     “Book-Entry Preferred Securities Certificates” means certificates
representing beneficial interests in the Preferred Securities, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 5.11.



     “Business Day” means a day other than (a) a Saturday or Sunday or (b) a day
on which banking institutions in The City of New York are authorized or required
by law or executive order to remain closed.



     “Certificate Depository Agreement” means the agreement among the Trust, the
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.



     “Clearing Agency” means an organization registered as a “clearing agency”
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.



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



     “Closing Date” means the Closing Time as defined in the Underwriting
Agreement, which date is also the date of execution and delivery of this Trust
Agreement.



     “Code” means the Internal Revenue Code of 1986, as amended.



     “Commission” means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.



     “Common Security” means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $                     and having the rights
provided therefor in this



3









 




Trust Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.




     “Common Securities Certificate” means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.



     “Corporate Trust Office” means the principal office of the Property Trustee
located in Chicago, Illinois.



     “Definitive Preferred Securities Certificates” means Preferred Securities
Certificates issued in certificated, fully registered form as provided in
Section 5.13.



     “Delaware Business Trust Act” means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. 3801, et seq., as it may be amended from time to time.



     “Delaware Trustee” means the corporation identified as the “Delaware
Trustee” in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor trustee appointed as herein provided.



     “Depositor” has the meaning specified in the preamble to this Trust
Agreement.



     “Distribution Date” has the meaning specified in Section 4.1(a).



     “Distributions” means amounts payable in respect of the Trust Securities as
provided in Section 4.1.



     “Event of Default” means the occurrence of a Junior Debt Related Event of
Default.



     “Expense Agreement” means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.



     “Expiration Period” has the meaning specified in Section 3.11 of the Junior
Indenture.



     “Extension Date” has the meaning specified in Section 9.1.



     “Guarantee” means the Guarantee Agreement executed and delivered by the
Depositor and The
Bank of New York Mellon Trust Company, N.A., as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Preferred Securities, as amended from time to
time.



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



     “Junior Debt Securities” means the aggregate principal amount of the
Depositor’s Junior Subordinated Deferrable Interest Junior Debt Securities,
Series ___, issued pursuant to the Junior Indenture.



4









 





     “Junior Debt Security Investment Company Event” means an “Investment
Company Event” as defined in the Junior Indenture.



     “Junior Debt Security Redemption Date” means, with respect to any Junior
Debt Securities to be redeemed under the Junior Indenture, the date fixed for
redemption under the Junior Indenture.



     “Junior Debt Security Tax Event” means a “Tax Event” as defined in the
Junior Indenture.



     “Junior Indenture” means the Junior Subordinated Indenture, dated as of ___,
___, between the Depositor and the Junior Indenture Trustee, as trustee, as amended
or supplemented from time to time.



     “Junior Indenture Trustee” means The
Bank of New York Mellon Trust Company, N.A., a national banking association organized and any successor thereto.



     “Lien” means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.



     “Like Amount” means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Junior Debt Securities to be contemporaneously redeemed in
accordance with the Junior Indenture, allocated to the Common Securities and to
the Preferred Securities based on their relative Liquidation Amounts and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Junior Debt Securities to
Holders of Trust Securities in connection with a dissolution and liquidation of
the Trust, Junior Debt Securities having a principal amount equal to the
Liquidation Amount of the Trust Securities of the Holder to whom such Junior
Debt Securities are distributed.



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



     “Liquidation Date” means the date on which Junior Debt Securities are to be
distributed to Holders of Trust Securities in connection with a termination and
liquidation of the Trust pursuant to Section 9.4.



     “Liquidation Distribution” has the meaning specified in Section 9.4(d).



     “1940 Act” means the Investment Company Act of 1940, as amended.



     “Officers’ Certificate” means a certificate signed by the Chairman and
Chief Executive Officer, President or any Senior Vice President or Group Vice
President, and by the Treasurer, an Associate Treasurer, an Assistant Treasurer,
the Controller, the Secretary or an Assistant Secretary, of the Depositor, and
delivered to the appropriate Trustee. One of the officers signing an Officers’
Certificate given pursuant to Section 8.16 shall be the principal executive,
financial or accounting officer of the Depositor. Any Officers’ Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement 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.



     “Opinion of Counsel” means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor, and who shall be
reasonably acceptable to the Property Trustee.



     “Original Trust Agreement” has the meaning specified in the recitals to
this Trust Agreement.



     “Outstanding”, when used with respect to Preferred Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:



     (a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;



     (b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Preferred
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement;



     (c) Trust Securities which have been paid or in exchange for or in lieu of
which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13; and



     (d) as provided in Section 9.4(c).


provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Administrative Trustee or any
Affiliate of the Depositor or any Administrative Trustee shall be disregarded
and deemed not to be Outstanding, except that (a) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Preferred Securities
that such Trustee knows to be so owned shall be so disregarded and (b) the
foregoing shall not apply at any time when all of the Outstanding Preferred
Securities are owned by the Depositor, one or more of the Trustees and/or any
such Affiliate. Preferred Securities so owned which have been pledged in good
faith may be regarded







6









 







as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee’s right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.




     “Owner” means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).



     “Paying Agent” means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.



     “Payment Account” means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Junior Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Article Four.



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



     “Preferred Security” means a preferred undivided beneficial interest in the
assets of the Trust, designated as “___%                     ” having a
Liquidation Amount of $___ and having the rights provided therefor in
this Trust Agreement, including the right to receive Distributions and a
Liquidation Distribution as provided herein.



     “Preferred Securities Certificate” means a certificate evidencing ownership
of one or more Preferred Securities, substantially in the form attached as
Exhibit E.



     “Property Trustee” means the commercial bank or trust company identified as
the “Property Trustee” in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its individual capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.



     “Redemption Date” means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Junior Debt Security Redemption Date and the stated maturity
of the Junior Debt Securities shall be a Redemption Date for a Like Amount of
Trust Securities.



     “Redemption Price” means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, [plus the related amount of the premium,
if any,] paid by the Depositor upon the concurrent redemption of a Like Amount
of Junior Debt Securities, allocated on a pro rata basis (based on Liquidation
Amounts) among the Trust Securities, subject to the provisions contained herein.



7









 





“Relevant Trustee” shall have the meaning specified in Section 8.10.



     “Securities Register” and “Securities Registrar” have the respective
meanings specified in Section 5.4.



     “Securityholder” or “Holder” means a Person in whose name a Trust Security
or Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act.



     “Special Event” means “Special Event” as defined in the Junior Indenture.



     “Trust” means the Delaware business trust continued hereby and identified
on the cover page to this Trust Agreement.



     “Trust Agreement” means this Second Amended and Restated Trust Agreement,
as the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.



     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, including the rules duly
adopted by the Commission thereunder; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act”
means, to the extent required by any such amendment, the Trust Indenture Act of
1939 as so amended.



     “Trust Property” means (a) the Junior Debt Securities, (b) the rights under
the Guarantee, (c) any cash on deposit in, or owing to, the Payment Account and
(d) 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 Property Trustee
pursuant to this Trust Agreement.



     “Trust Security” means any one of the Common Securities or the Preferred
Securities.



     “Trust Securities Certificate” means any one of the Common Securities
Certificates or the Preferred Securities Certificates.



     “Trustees” means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.



     “Underwriting Agreement” means the Terms Agreement, dated as of
___, ___, among the Trust, the Depositor and the Underwriters named
therein incorporating the Underwriting Agreement Standard Provisions.



8









 




ARTICLE II




ESTABLISHMENT OF THE TRUST




SECTION 2.1 NAME.




     The Trust continued hereby shall be known as “CNA Financial Capital [___],”
as such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.



SECTION 2.2 OFFICE OF THE DELAWARE TRUSTEE; PRINCIPAL PLACE OF BUSINESS.




     The address of the Delaware Trustee in the State of Delaware is 300 King
Street, Wilmington, Delaware 19801, or such other address in the State of
Delaware as the Delaware Trustee may designate by written notice to the
Depositor. The principal executive office of the Trust is c/o CNA
Financial Corporation,
333 South Wabash Avenue, Chicago, Illinois 60604.



SECTION 2.3 INITIAL CONTRIBUTION OF TRUST PROPERTY; ORGANIZATIONAL EXPENSES.




     (a) The Trustees acknowledge receipt from the Depositor in connection with
 the Original Trust Agreement of the sum of $10, which constituted the initial
Trust Property.



     (b) The Depositor shall be responsible for and shall pay for all
obligations (other than with respect to the Trust Securities) and all costs and
expenses of the Trust (including, but not limited to, costs and expenses
relating to the organization of the Trust, the issuance and sale of the
Preferred Securities, the fees and expenses (including reasonable counsel fees
and expenses) of the Trustees as provided in Section 8.7 the costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, Paying Agent(s),
Securities Registrar, duplication, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the disposition of Trust assets).



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



     (d) The Depositor’s obligations under this Section 2.3 shall be for the
benefit of, and shall be enforceable by, the Property Trustee and any Person to
whom any such obligations, costs, expenses and taxes are owed (a “Creditor”)
whether or not such Creditor has received notice hereof. The Property Trustee
and any such Creditor may enforce the Depositor’s obligations under this Section
2.3 directly against the Depositor and the Depositor irrevocably waives any
right or remedy to require that the Property Trustee or any such Creditor take
any action against the Trust or any other Person before proceeding against the
Depositor. The



9









 




Depositor agrees to execute such additional agreements as may be necessary or
desirable in order to give full effect to the provisions of this Section 2.3.




     (e) The Depositor shall make no claim upon the Trust Property for the
payment of such expenses.



SECTION 2.4 ISSUANCE OF THE TRUST SECURITIES.




     On ___, 1999, the Depositor, on behalf of the Trust and pursuant to
the Original Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Underwriters named in the Underwriting Agreement
Preferred Securities Certificates, [registered in the name of the nominee of the
initial Clearing Agency,] in an aggregate amount of ___ Preferred
Securities having an aggregate Liquidation Amount of $___, against
receipt of such aggregate purchase price of such Preferred Securities of
$___, which amount the Administrative Trustee shall promptly deliver
to the Property Trustee. Contemporaneously with the execution and delivery of
this Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute in accordance with Section 5.2 and deliver to the Depositor a Common
Securities Certificate, registered in the name of the Depositor, in an aggregate
amount of ___ Common Securities having an aggregate Liquidation Amount of
$___ against payment by the Depositor of such amount, which amount
such Administrative Trustee shall promptly deliver to the Property Trustee.



SECTION 2.5 SUBSCRIPTION AND PURCHASE OF DEBENTURES.




     Contemporaneously with the execution of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall subscribe to and purchase
from the Depositor Junior Debt Securities, registered in the name of the Trust
and having an aggregate principal amount equal to $___, and, in
satisfaction of the purchase price for such Junior Debt Securities, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$___, such amount being the sum of the amounts delivered to the
Property Trustee pursuant to Section 2.4 and (ii) the first sentence of this
Section 2.5.



SECTION 2.6 DECLARATION OF TRUST.




     The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Junior Debt
Securities, and (b) to engage in those activities necessary, convenient or
incidental thereto. The Depositor hereby appoints the Trustees as trustees of
the Trust, to have all the rights, powers and duties to the extent set forth
herein, and the Trustees hereby accept such appointment. The Property Trustee
hereby declares that it will hold the Trust Property upon and subject to the
conditions set forth herein for the benefit of the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. 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 set forth herein except as required by
the Delaware Business Trust Act. The Delaware Trustee shall



10









 




be one of the Trustees of the Trust for the sole and limited purpose of
fulfilling the requirements of Section 3807 of the Delaware Business Trust Act.




SECTION 2.7 AUTHORIZATION TO ENTER INTO CERTAIN TRANSACTIONS.




     (a) The Trustees shall conduct the affairs of the Trust in accordance with
the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section 2.7, and in accordance with the following
provisions (i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:




     (i) As among the Trustees, each Administrative Trustee shall have the
exclusive power and authority to act on behalf of the Trust with respect to
the following matters:




     (A) the issuance and sale of the Trust Securities, including
execution of any agreement, certificates evidencing Trust Securities
or other documents necessary or advisable with respect to such
issuance and sale;




     (B) the purchase of the Junior Debt Securities




     (C) to cause the Trust to enter into, and to execute, deliver and
perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function of
the Trust;




     (D) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;




     (E) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;




     (F) the sending of notices (other than notices of default) and
other information regarding the Trust Securities and the Debentures to
the Securityholders in accordance with this Trust Agreement;




     (G) registering transfers and exchanges of the Preferred
Securities in accordance with this Trust Agreement (but only if at
such time the Property Trustee shall not be the Securities Registrar);



11









 






     (H) to the extent provided in this Trust Agreement, 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) unless otherwise determined by the Depositor, the Property
Trustee or the Administrative Trustees, or as otherwise required by
the Delaware Business Trust Act or the Trust Indenture Act, to execute
on behalf of the Trust (either acting alone or together with any or
all of the Administrative Trustees) any documents that the
Administrative Trustees have the power to execute pursuant to this
Trust Agreement; and




     (J) the taking of any action incidental to the foregoing as such
Administrative Trustee may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for the
benefit of the Securityholders (without consideration of the effect of
any such action on any particular Securityholder).




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




     (A) the establishment and maintenance of the Payment Account and
the appointment, subject to Section 5.9, of Paying Agents;




     (B) the receipt and registered ownership of the Junior Debt
Securities;




     (C) the receipt of payments of the purchase price of the Trust
Securities and the collection of interest, principal and any other
payments made in respect of the Junior Debt Securities and deposit
into the Payment Account;




     (D) making Distributions and other payments to the
Securityholders in respect of the Trust Securities;




     (E) the exercise of all of the rights, powers and privileges of a
holder of the Junior Debt Securities, subject to the terms of the
Junior Indenture;




     (F) the sending of notices of default, redemption, Extension
Periods, Special Events, liquidation and other information regarding
the Trust Securities and the Junior Debt Securities to the
Securityholders in accordance with this Trust Agreement;




     (G) to the extent provided in this Trust Agreement, the winding
up of the affairs of and liquidation of the Trust, including, the
distribution of the Trust Property in accordance with the terms of
this Trust Agreement and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the State
of Delaware;



12









 






     (H) after an Event of Default, the taking of any action
incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms
of this Trust Agreement and protect and conserve the Trust Property
for the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder);




     (I) so long as the Property Trustee is the Securities Registrar,
registering transfers and exchanges of the Preferred Securities in
accordance with this Trust Agreement; and




     (J) except as otherwise provided in this Section 2.7(a)(ii) or as
required by the Trust Indenture Act, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.7(a)(i).



     (b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not cause the Trust to (i) acquire any
assets or make any investments (other than the Junior Debt Securities) or engage
in any activities not authorized by this Trust Agreement, (ii) sell, assign,
transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the
Trust Property or interests therein, including to Securityholders, except as
expressly provided herein, (iii) take any action that would cause the Trust to
fail or cease to qualify as a “grantor trust” for United States Federal income
tax purposes, (iv) make any loans (other than the Junior Debt Securities) or
incur any indebtedness for borrowed money or issue any other debt, (v) issue any
securities or other evidences of beneficial ownership of, or beneficial
interests in the Trust other than the Trust Securities or (vi) take or consent
to any action that would result in the placement of a Lien on any of the Trust
Property. The Administrative Trustees shall 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 Securityholders in their capacity as
Securityholders.



     (c) In connection with the issue and sale of the Preferred Securities, the
Depositor 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 Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):




     (i) the preparation and filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;




     (ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the doing of any and all such acts, other than actions which
must be taken by or on behalf of the Trust, and advising 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 Depositor deems necessary or advisable in
order to comply with the applicable laws of any such States;



13









 






     (iii) the preparation for filing by the Trust and execution on behalf
of the Trust of an application to The New York Stock Exchange or any other
national stock exchange or The Nasdaq Stock Market for listing upon notice
of issuance of any Preferred Securities;




     (iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;




     (v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and




     (vi) 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 Administrative
Trustees 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 1940 Act (ii) the Trust will be
classified as a grantor trust for United States Federal income tax purposes and
(iii) the Junior Debt Securities will be treated as indebtedness of the
Depositor for United States Federal income tax purposes. In this connection, the
Depositor and the Administrative Trustees are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust, as amended from time
to time, or this Trust Agreement, that each of the Depositor and the
Administrative Trustees determines in their discretion to be necessary or
desirable for such purposes, as long as such action does not adversely affect in
any material respect the interests of the holders of the Preferred Securities.



SECTION 2.8 ASSETS OF TRUST.




     The assets of the Trust shall consist of the Trust Property.



SECTIlON 2.9 TITLE TO TRUST PROPERTY.




     Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.



ARTICLE III




PAYMENT ACCOUNT



SECTION 3.1 PAYMENT ACCOUNT.




     (a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust




14











 




Agreement; provided that any Paying Agent shall have the right of withdrawal
with respect to the Payment Account solely for the purpose of making the
payments contemplated under Article Four. All monies and other property
deposited or held from time to time in the Payment Account shall be held by the
Property Trustee in the Payment Account for the exclusive benefit of the
Securityholders and for distribution as herein provided, including (and subject
to) any priority of payments provided for herein.




     (b) The Property Trustee shall deposit in the Payment Account, promptly
 upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Junior Debt Securities and any amounts
 paid to the Property Trustee pursuant to this Guarantee. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.



ARTICLE IV



DISTRIBUTIONS; REDEMPTION


SECTION 4.1 DISTRIBUTIONS.




     (a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including any Additional Amounts) will be
made on the Trust Securities at the rate [(or manner of calculation of the
rate)] and on the dates that payments of interest (including any Additional
Interest, as defined in the Junior Indenture) are made on the Junior Debt
Securities. Accordingly:




     (i) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accumulate from , , and,
except in the event that the Depositor exercises its right to defer the
payment of interest on the Junior Debt Securities pursuant to the Junior
Indenture, shall be payable [quarterly] [monthly] [semi-annually]
[annually] in arrears on [Insert Dates] of each year, commencing on
                    , . If any date on which a Distribution is otherwise payable on
the Trust Securities is not a Business Day, then the payment of such
Distribution shall be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such
delay) except that, if such Business Day is in the next succeeding calendar
year, payment of such Distribution shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if
made on such date (each date on which distributions are payable in
accordance with this Section 4.1(a), a “Distribution Date”). [insert
alternative floating rate convention, if applicable]


Within two Business Days after receipt by the Property Trustee of notice of an
Extension Period pursuant to Section 3.11 of the Junior Indenture, the Property
Trustee shall give notice thereof to the Securityholders by first class mail,
postage prepaid.





     (ii) Assuming payments of interest on the Junior Debt Securities are
made when due (and before giving effect to Additional Amounts, if
applicable), Distributions on the Trust Securities shall be payable at a
rate of           % per annum of the Liquidation



15









 






Amount of the Trust Securities. The amount of Distributions payable for any
full period shall be computed on the basis of a 360-day year of twelve
30-day months. [insert alternative floating rate provisions, if
applicable]. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of
twelve 30-day months. The amount of Distributions payable for any period
shall include the Additional Amounts, if any.




     (iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
legally available in the Payment Account for the payment of such
Distributions.




     (iv) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on
the Securities Register for the Trust Securities on the relevant record
date, which shall be [one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not
remain in book-entry-only form, the relevant record date shall be the date]
15 days prior to the relevant Distribution Date.


SECTION 4.2 REDEMPTION.




     (a) Upon receipt by the Trust of a notice of redemption or other
acceleration of the maturity of the Junior Debt Securities, the Property
Trustee, subject to Section 4.3, will call for redemption a Like Amount of Trust
Securities on the Junior Debt Security Redemption Date and will call for
redemption all Outstanding Trust Securities on the stated maturity date of the
Junior Debt Securities, in each case at the applicable Redemption Price.



     (b) Notice of redemption shall be given by the Property Trustee by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date to each Holder of Trust Securities to be redeemed,
at such Holder’s address appearing in the Security Register. All notices of
redemption shall state:




     (i) the Redemption Date;




     (ii) the Redemption Price;




     (iii) the CUSIP number;




     (iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed;




     (v) the place or places where Trust Securities are to be surrendered
for payment of the Redemption Price; and




     (vi) that on the Redemption Date the Redemption Price will become due
and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accumulate on and after said date.



16









 




(c) The Trust Securities redeemed on each Redemption Date shall be redeemed
at the Redemption Price with the proceeds from the contemporaneous redemption or
payment at maturity of Junior Debt Securities. Redemptions of the Trust
Securities shall be made and the Redemption Price shall be payable on each
Redemption Date only to the extent that the Trust has funds then on hand legally
available in the Payment Account for the payment of such Redemption Price.




     (d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then[, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price for the Preferred Securities being redeemed on
such date and will give such Clearing Agency irrevocable instructions and
authority to pay the Redemption Price to the Holders thereof. If the Preferred
Securities are not in book-entry-only form,] the Property Trustee, subject to
Section 4.2(c), will irrevocably deposit with the Paying Agent funds sufficient
to pay the applicable Redemption Price and will give the Paying Agent
irrevocable instructions and authority to pay the Redemption Price to the
Holders thereof upon surrender of their Preferred Securities Certificates.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price, but
without interest, and such Securities will cease to be Outstanding. In the event
that any date on which any Redemption Price is payable is not a Business Day,
then payment of the Redemption Price payable on such date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day falls
in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accumulate, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.



     (e) Payment of accumulated and unpaid Distributions on the Redemption Date
of the Trust Securities will be subject to the rights of Holders on the close of
business on the relevant record date in respect of a Distribution Date occurring
on or prior to such Redemption Date.



     (f) If less than all the Outstanding Trust Securities are to be redeemed on
a Redemption Date, then the aggregate Liquidation Amount of Trust Securities to
be redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities. The
particular Preferred Securities to be redeemed shall be selected) not more than
60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption, by such
method



17









 




(including, without limitation, by lot) as the Property Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $25. If
fewer than all of the Trust Securities represented by a Trust Securities
Certificate are redeemed, an Administrative Trustee shall execute for the Holder
a new Trust Securities Certificate representing the unredeemed Trust Securities.
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.



SECTION 4.3 SUBORDINATION OF COMMON SECURITIES.




     (a) Payment of Distributions (including Additional Amounts, if applicable)
on, and the Redemption Price and/or Liquidation Distribution of, the Trust
Securities, as applicable, shall be made, subject to Section 4.2(f), pro rata
among the Common Securities and the Preferred Securities based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date, Redemption Date or Liquidation Date any Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price and/or Liquidation
Distribution of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment shall have been made or been provided for in full in cash of (i)
all accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, such Redemption Price on all Outstanding
Preferred Securities then being redeemed, as applicable, shall have been made or
provided for, and all funds immediately available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price and/or
Liquidation Distribution of, Preferred Securities then due and payable.



     (b) In the case of the occurrence of any Event of Default, the Holder of
Common Securities will be deemed to have waived any right to act with respect to
any such Event of Default under this Trust Agreement until the effect of such
Event of Default has been cured, waived or otherwise eliminated with respect to
the Preferred Securities. Until any such Event of Default under this Trust
Agreement has been so cured, waived or otherwise eliminated with respect to the
Preferred Securities, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not the Holder of the Common Securities,
and only the Holders of the Preferred Securities will have the right to direct
the Property Trustee to act on their behalf.


SECTION 4.4 PAYMENT PROCEDURES.




     If the Preferred Securities are held by a Clearing Agency, payment of
Distributions and any Redemption Price or Liquidation Distribution shall be made
to the Clearing Agency in immediately available funds, which shall credit the
relevant Persons’ accounts at such Clearing Agency on the applicable
Distribution Dates. Payments of the Redemption Price or Liquidation



18









 




Distribution in respect of Definitive Preferred Securities held in certificated
form shall be made to the Holder thereof in immediately available funds upon
surrender of the Preferred Securities Certificate representing such Definitive
Preferred Securities at the Corporate Office of the Trustee. Payments of
Distributions (including Additional Amounts, if applicable) in respect of
Definitive Preferred Securities shall be made by check mailed to the address of
the Person entitled thereto as such address shall appear on the Securities
Register. Payments in respect of Common Securities shall be made in such manner
as shall be mutually agreed between the Property Trustee and the Common
Securityholder.



SECTION 4.5 TAX RETURNS AND REPORTS.




     The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor’s expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Administrative Trustees shall comply with
United States Federal withholding and backup withholding tax laws and
information reporting requirements with respect to any payments to
Securityholders under the Trust Securities.


SECTION 4.6 PAYMENT OF TAXES, DUTIES, ETC. OF THE TRUST.




     Upon receipt under the Junior Debt Securities of Additional Sums and
directions as to the payments of such Additional Sums, the Property Trustee
shall promptly pay, solely out of monies on deposit pursuant to this Trust
Agreement, any taxes, duties or governmental charges of whatsoever nature (other
than withholding taxes) imposed on the Trust by the United States or any other
taxing authority.


SECTION 4.7 REDUCTION FOR PAYMENTS UNDER JUNIOR INDENTURE.




     Any amount payable hereunder to any Holder of Preferred Securities (and any
Owner with respect thereto) shall be reduced by the amount of any corresponding
payment such Holder (and Owner) has directly received pursuant to Section 5.8 of
the Junior Indenture, Section 5.14 of this Trust Agreement or the Guarantee.



ARTICLE V




TRUST SECURITIES CERTIFICATES


SECTION 5.1 INITIAL OWNERSHIP.




     Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.



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SECTION 5.2 THE TRUST SECURITIES CERTIFICATES.




     The Preferred Securities Certificates shall be issued in minimum
denominations of $                    Liquidation Amount and integral multiples of $                    in
excess thereof, and the Common Securities Certificate shall be issued in an
aggregate Liquidation Amount equal to $                    . Trust Securities Certificates
representing fractional interests shall not be issued. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee’s name pursuant to Sections 5.4, 5.11
and 5.13.


SECTION 5.3 EXECUTION AND DELIVERY OF TRUST SECURITIES CERTIFICATES.



     On the Closing Date, the Administrative Trustees shall cause Preferred
Securities Certificates and the Common Securities Certificates, in the
respective aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to
be executed on behalf of the Trust as provided in Section 5.2 and delivered to
or upon the written order of the Depositor, signed by its chairman of the board,
its president, any executive vice president or any vice president, treasurer or
assistant treasurer or controller without further corporate action by the
Depositor.



SECTION 5.4 REGISTRATION OF TRANSFER AND EXCHANGE OF PREFERRED SECURITIES
CERTIFICATES.




     The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the “Securities Register”) in which, the
registrar designated by the Depositor (the “Securities Registrar”), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and the Common Securities
Certificate (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar; any successor Securities Registrar shall be appointed by
the Administrative Trustees.



     Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.



     The Securities Registrar shall not be required to register the transfer of
any Preferred Securities that have been called for redemption. At the option of
a Holder, Preferred Securities



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Certificates may be exchanged for other Preferred Securities Certificates in
authorized denominations and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section V.8.




     Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to Securities Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Preferred Securities Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Securities
Registrar in accordance with its customary practice.



     No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates (other than any exchange not involving a transfer).


SECTION 5.5 MUTILATED, DESTROYED, LOST OR STOLEN TRUST SECURITIES CERTIFICATES.




     If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its reasonable satisfaction of the destruction, loss or theft of any Trust
Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Administrative Trustees such security or indemnity as may be
reasonably required by them to save each of them harmless, then in the absence
of notice that such Trust Securities Certificate shall have been acquired by a
bona fide purchaser, the Administrative Trustees, or any one of them, on behalf
of the Trust shall execute and make available for delivery, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Trust Securities
Certificate, a new Trust Securities Certificate of like tenor and denomination.
In connection with the issuance of any new Trust Securities Certificate under
this Section, the Administrative Trustees or the Securities Registrar 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 Trust
Securities Certificate issued pursuant to this Section shall constitute
conclusive evidence of an undivided beneficial interest in the Trust Property,
as if originally issued, whether or not the lost, stolen or destroyed Trust
Securities Certificate shall be found at any time.


SECTION 5.6 PERSONS DEEMED SECURITYHOLDERS.




     The Trustees, the Paying Agent or the Securities Registrar shall treat the
Person in whose name any Trust Securities Certificate shall be registered in the
Securities Register as the owner and Holder of such Trust Securities Certificate
for the purpose of receiving Distributions and for all other purposes
whatsoever, and none of the Trustees, the Paying Agent or the Securities
Registrar shall be bound by any notice to the contrary.


SECTION 5.7 ACCESS TO LIST OF SECURITYHOLDERS’ NAMES AND ADDRESSES.




     (a) The rights of Securityholders to communicate with other Securityholders
with respect to their rights under this Trust Agreement or under the Trust
Securities, and the



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corresponding rights of the Trustee shall be as provided in the Trust Indenture
Act. Each Securityholder, by receiving and holding a Trust Securities
Certificate, and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee the Delaware Trustee, or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.




     In the event that the Property Trustee is no longer the Securities
Registrar, the Administrative Trustees or the Depositor shall furnish or cause
to be furnished a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Securityholders as of the most recent
record date and (a) the Property Trustee, quarterly not later than 10 days prior
to a Distribution Date and (b) to the Property Trustee, promptly after receipt
by the Administrative Trustees, promptly after receipt by the Administrative
Trustees or the Depositor of a request therefor from the Property Trustee in
order to enable the Paying Agent to pay Distributions in accordance with Section
4.1 hereof, in each case to the extent such information is in the possession or
control of the Administrative Trustees or the Depositor and is not identical to
a previously supplied list or has not otherwise been received by the Property
Trustee.


SECTION 5.8 MAINTENANCE OF OFFICE OR AGENCY.




     The Property Trustee shall maintain in New York, New York and Chicago,
Illinois, an office or offices or agency or agencies where Preferred Securities
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trustees in respect of the Trust
Securities Certificates may be served, initially located at                     . The
Property Trustees shall give prompt written notice to the Depositor and to the
Securityholders of any change in the location of the Securities Register or any
such office or agency.


SECTION 5.9 APPOINTMENT OF PAYING AGENT.




     The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions. The Administrative Trustees may revoke such power
and remove the Paying Agent if such Trustees determine in their sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Trust Agreement in any material respect; provided that such revocation and
removal with respect to the sole Paying Agent shall not become effective until
the appointment of a successor. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be permitted
to resign as Paying Agent upon 30 days’ written notice to the Administrative
Trustees, the Property Trustee and the Depositor. In the event that the Bank
shall no longer be the Paying Agent or a successor Paying Agent shall resign or
its authority to act be revoked, the Administrative Trustees shall appoint a
successor that is acceptable to the Property Trustee (in the case of a Paying
Agent other than the Bank) and the Depositor to act as Paying Agent (which shall
be a bank or trust company meeting the eligibility requirements set forth in
Section 6.9 of the Junior Indenture); provided that such resignation with
respect to the sole Paying Agent shall



22









 




not become effective until the appointment of a successor. The Administrative
Trustees shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Administrative Trustees to execute and deliver to the Trustees
an instrument in which such successor Paying Agent or additional Paying Agent
shall agree with the Trustees that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to such Securityholders. The Paying Agent
shall return all unclaimed funds to the Property Trustee and upon removal of a
Paying Agent such Paying Agent shall also return all funds in its possession to
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 herein shall
apply to the Bank also in its role as Paying Agent, for so long as the Bank
shall act as Paying Agent and, to the extent applicable, to any other paying
agent appointed hereunder. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.



SECTION 5.10 OWNERSHIP OF COMMON SECURITIES BY DEPOSITOR; NO TRANSFER.




     On the Closing Date, the Depositor shall acquire and retain beneficial and
record ownership of the Common Securities. To the fullest extent permitted by
law, other than in connection with a consolidation or merger of the Depositor
into another corporation, or any conveyance, transfer or lease by the Depositor
of its properties and assets substantially as an entirety to any Person,
pursuant to Section 8.1 of the Junior Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall cause the
Common Securities Certificate issued to the Depositor to contain a legend
stating “THIS CERTIFICATE IS NOT TRANSFERABLE”.


SECTION 5.11 BOOK-ENTRY PREFERRED SECURITIES CERTIFICATES; COMMON SECURITIES
CERTIFICATE.




     (a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a Preferred Securities Certificate or Certificates
representing [Definitive Preferred Securities or] Book-Entry Preferred
Securities Certificates, to be delivered to The Depository Trust Company, the
initial Clearing Agency, by, or on behalf of, the Trust. Book-Entry Preferred
Securities Certificate or Certificates shall initially be registered on the
Securities Register in the name of Cede & Co., the nominee of the initial
Clearing Agency, and no Owner will receive a Definitive Preferred Securities
Certificate representing such Owner’s interest in such Preferred Securities,
except as provided in Section 5.13. Unless and until Definitive Preferred
Securities Certificates have been issued to Owners pursuant to Section 5.13:




     (i) the provisions of this Section 5.11(a) shall be in full force and
effect;




     (ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of the Redemption Price Amount of and Distributions on the
Book-Entry Preferred Securities and the giving of instructions or
directions to Owners of Book-Entry Preferred Securities) as the sole Holder
of Book-Entry Preferred Securities and shall have no obligations to the
Owners thereof;



23









 







     (iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and



     (iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants; provided,
that solely for the purposes of determining whether the Holders of the
requisite Liquidation Amount of Preferred Securities have voted on any
matter provided for in this Trust Agreement, so long as Definitive
Preferred Security Certificates have not been issued, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing
Agency setting forth the Owners’ votes or assigning the right to vote on
any matter to any other Persons either in whole or in part. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities
to such Clearing Agency Participants.



     (b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.


SECTION 5.12 NOTICES TO CLEARING AGENCY.




     To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
 obligations to the Owners.



SECTION 5.13 ISSUANCE OF DEFINITIVE PREFERRED SECURITIES CERTIFICATES.




     If (a) the Depositor advises the Property Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities with respect to the Book-Entry Preferred Securities
Certificates or that the Clearing Agency is no longer registered or in good
standing under the Securities Act of 1934, as amended, or other applicable
statute or regulation, and the Depositor is unable to locate a qualified
successor within 90 days, (b) the Depositor at its option advises the Property
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (c) after the occurrence of an Event of Default, Owners of
Book-Entry Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount advise the Property
Trustee in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interest of the Owners of Book-Entry
Preferred Securities Certificates, then the Property Trustee shall instruct the
Clearing Agency to notify all Owners of Preferred Securities Certificates and
the other Trustees of the occurrence of any such event and of the availability
of the Definitive Preferred Securities Certificates to Owners requesting the
same. Upon surrender to the Property Trustees of the Preferred Securities
Certificate or Certificates by the Clearing Agency, accompanied by



24









 




registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in authorized
denominations in accordance with the instructions of the Clearing Agency.
Neither the Securities Registrar nor the Trustees shall be liable for any delay
in delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Preferred Securities Certificates, the Trustees shall recognize the Holders of
the Definitive Preferred Securities Certificates as Securityholders. The
Definitive Preferred Securities Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably acceptable to
the Administrative Trustees, as evidenced by the execution thereof by the
Administrative Trustees or any one of them.



SECTION 5.14 RIGHTS OF SECURITYHOLDERS.




     (a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust 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 Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights and when issued and delivered to
Securityholders against payment of the purchase price therefor will be fully
paid and nonassessable by the Trust. The Holders of the Trust Securities, in
their capacities as such, 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.



     (b) For so long as any Preferred Securities remain Outstanding, if, upon a
Junior Debt Related Event of Default, the Junior Indenture Trustee fails or the
holders of not less than 25% in principal amount of the outstanding Junior Debt
Securities fail to declare the principal of all of the Junior Debt Securities to
be immediately due and payable, the Holders of at least 25% in Liquidation
Amount of the Preferred Securities then Outstanding shall have such right by a
notice in writing to the Depositor and the Junior Indenture Trustee; and upon
any such declaration such principal amount of and the accrued interest on all of
the Junior Debt Securities shall become immediately due and payable, provided
that the payment of principal and interest on such Junior Debt Securities shall
remain subordinated to the extent provided in the Junior Indenture.



     At any time after such a declaration of acceleration with respect to the
Junior Debt Securities has been made and before a judgment or decree for payment
of the money due has been obtained by the Junior Indenture Trustee as in the
Junior Indenture provided, the Holders of a majority in Liquidation Amount of
the Preferred Securities, by written notice to the Property Trustee, the
Depositor and the Junior Indenture Trustee, may rescind and annul such
declaration and its consequences if:




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



25









 






     (A) all overdue installments of interest (including any
Additional Interest (as defined in the Junior Indenture)) on all of
the Junior Debt Securities,





     (B) the principal of (and premium, if any, on) any Junior Debt
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate then borne by the Junior
Debt Securities, and




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




     (ii) all Events of Default, other than the non-payment of the
principal or premium, if any, of the Junior Debt Securities which has
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13 of the Junior Indenture.



     Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities, a record date shall be established for determining Holders of
Outstanding Preferred Securities entitled to join in such notice, which record
date shall be at the close of business on the day the Property 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 which 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 which 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 5.14(b).



     The holders of a majority in aggregate Liquidation Amount of the Preferred
Securities may, on behalf of the holders of the Junior Debt Securities and the
Holders of the related Preferred Securities, waive any past default under the
Junior Indenture, except a default in they payment of principal, premium, if
any, or interest (unless such default has been cured and a sum sufficient to pay
all matured installments of interest, premium, if any, and principal due
otherwise than by acceleration has been deposited with the Junior Indenture
Trustee) or a default in respect of a covenant or provision which under the
Junior Indenture cannot be modified or amended without the consent of the holder
of each outstanding Junior Debt Security. No such recission shall affect any
subsequent default or impair any right consequent thereon.



     (c) For so long as any Preferred Securities remain Outstanding, upon an
Event of Default specified in Sections 5.1(a) or 5.1(b) of the Junior Indenture,
any Holder of Preferred



26









 




Securities shall have the right to institute a proceeding directly against the
Depositor pursuant to Section 5.8 of the Junior Indenture for enforcement of
payment to such Holders of the principal of or premium, if any, or interest on
the Junior Debt Securities having a principal amount equal to the Liquidation
Amount of the Preferred Securities of such Holder (a “Direct Action”).




     Except as set forth in this Section 5.14(c) and Section 5.14(b) and
Sections 5.12, 9.2 and 10.5 of the Junior Indenture, the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders of, or in respect of, the Junior Debt Securities.



ARTICLE VI




ACTS OF SECURITYHOLDERS; MEETINGS; VOTING


SECTION 6.1 LIMITATIONS ON VOTING RIGHTS.




     (a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Junior Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.



     (b) So long as any Junior Debt Securities are held by the Property Trustee,
the Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Junior Indenture Trustee, or
executing any trust or power conferred on the Junior Indenture Trustee with
respect to the Junior Debt Securities, (ii) waive any past default which is
waivable under Section 5.13 of the Junior Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior Debt
Securities shall be due and payable or (iv) consent to any amendment,
modification or termination of the Junior Indenture or the Junior Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a majority in Liquidation Amount
of all Outstanding Preferred Securities, provided, however, that where a consent
under the Junior Indenture would require the consent of each holder of Junior
Debt Securities affected thereby, no such consent shall be given by the Property
Trustee without the prior written consent of each Holder of Preferred
Securities. The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of Preferred Securities, except by a
subsequent vote of the Holders of Preferred Securities. The Property Trustee
shall notify all Holders of the Preferred Securities of any notice of default
received from the Junior Indenture Trustee with respect to the Junior Debt
Securities. In addition to obtaining the foregoing consents of the Holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will continue to
qualify as a grantor trust for United States Federal income tax purposes after
taking into account such action.



     (c) Subject to Section 10.2(c) hereof, if any proposed amendment to the
Trust Agreement provides for, or the Trustees otherwise propose to effect, (i)
any action that would



27









 




adversely affect in any material respect the powers, preferences or special
rights of the Preferred Securities, whether by way of amendment to the Trust
Agreement or otherwise, or (ii) the dissolution, winding-up or termination of
the Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities 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 a majority in Liquidation Amount of
the Outstanding Preferred Securities. No amendment to this Trust Agreement may
be made if, as a result of such amendment, the Trust would fail to qualify as a
grantor trust for United States federal income tax purposes.



SECTION 6.2 NOTICE OF MEETINGS.




     Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at its
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.


SECTION 6.3 MEETINGS OF PREFERRED SECURITYHOLDERS.




     No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Securityholders to
vote on any matter upon the written request of the Preferred Securityholders of
10% of the Outstanding Preferred Securities (based upon their Liquidation
Amount) and the Administrative Trustees or the Property Trustee may, at any time
in their discretion, call a meeting of Preferred Securityholders to vote on any
matters as to which Preferred Securityholders are entitled to vote.



     Preferred Securityholders of 50% of the Outstanding Preferred Securities
(based upon their Liquidation Amount), present in person or by proxy, shall
constitute a quorum at any meeting of Securityholders.



     If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding a majority of
the Preferred Securities (based upon their Liquidation Amount) held by the
Preferred Securityholders present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.


SECTION 6.4 VOTING RIGHTS.




     Securityholders shall be entitled to one vote for each $                    of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.



SECTION 6.5 PROXIES, ETC.



     At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed



28









 





on file with the Administrative Trustees, or with such other officer or agent of
the Trust as the Administrative Trustees may direct, for verification prior to
the time at which such vote shall be taken. Pursuant to a resolution of the
Property Trustee, proxies may be solicited in the name of the Property Trustee
or one or more officers of the Property Trustee. Only Securityholders shall be
entitled to vote. When Trust Securities are held jointly by several persons, any
one of them may vote at any meeting in person or by proxy in respect of such
Trust Securities, but if one of them shall be present at such meeting in person
or by proxy, and such joint owners or their proxies so present disagree as to
any vote to be cast, such vote shall not be received in respect of such Trust
Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.


SECTION 6.6 SECURITYHOLDER ACTION BY WRITTEN CONSENT.




     Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding a majority of all Preferred Trust
Securities (based upon their Liquidation Amount) entitled to vote in respect of
such action (or such larger proportion thereof as shall be required by any
express provision of this Trust Agreement) shall consent to the action in
writing.


SECTION 6.7 RECORD DATE FOR VOTING AND OTHER PURPOSES.




     For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.


SECTION 6.8 ACTS OF SECURITYHOLDERS.




     Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.



     Without limiting the generality of this Section 6.8, unless otherwise
provided in or pursuant to this Trust Agreement, a Securityholder, including a
Clearing Agency, may make,



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give or take, by a proxy, or proxies, duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other act provided
in or pursuant to this Trust Agreement to be made, given or taken by
Securityholders, and a Clearing Agency that is a Securityholder may provide its
proxy or proxies to the beneficial owners of interest the Trust Securities owned
by such Clearing Agency through such Clearing Agency’s standing instructions and
customary practices.




     The Administrative Trustees shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any Trust
Securities held by a Clearing House entitled under the procedures of such
Clearing House to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other act provided in or pursuant to this Trust Agreement to be made, given
or taken by Securityholders. If such a record date is fixed, the Securityholders
on such record date or their duly appointed proxy or proxies, and only such
Persons, shall be entitled to make, give or take such request, demand,
authorization, direction, notice, consent, waiver or other act, whether or not
such Securityholders remain Securityholders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other act
shall be valid or effective if made, given or taken more than 90 days after such
record date.



     The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which any Trustee receiving the same deems
sufficient.



     The ownership of Preferred Securities shall be proved by the Securities
Register.



     Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.



     Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.



     If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such



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Securityholder or Trustee under this Article 6, then the determination of such
matter by the Property Trustee shall be conclusive with respect to such matter.



SECTION 6.9 INSPECTION OF RECORDS.




     Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder’s interest as a Securityholder.



ARTICLE VII




REPRESENTATIONS AND WARRANTIES


SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE BANK AND THE BANK (DELAWARE).




     The Bank and the Bank (Delaware), each severally on behalf of and as to
itself, hereby represents and warrants for the benefit of the Depositor and the
Securityholders that:



     (a) the Bank is a national banking association duly organized, validly
existing and in good standing under the laws of the United States; The Bank
(Delaware) is a Delaware banking corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware; and The Bank
(Delaware), as Delaware Trustee, fulfills for the trust the statutory
requirements of Section 3807 of the Delaware Business Trust Act;



     (b) each of the Bank and the Bank (Delaware) has full corporate power,
authority and legal right to execute, deliver and perform its obligations under
this Trust Agreement and has taken all necessary action to authorize the
execution, delivery and performance by it of this Trust Agreement;



     (c) this Trust Agreement has been duly authorized, executed and delivered
by the Bank and the Bank (Delaware) and constitutes the valid and legally
binding agreement of the Bank and the Bank (Delaware) enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles;



     (d) the execution, delivery and performance by each of the Bank and the
Bank (Delaware) of this Trust Agreement has been duly authorized by all
necessary corporate or other action on the part of the Bank and the Bank
(Delaware), respectively, and do not require any approval of stockholders of the
Bank or the Bank (Delaware) and such execution, delivery and performance will
not (i) violate the Bank’s or the Bank’s (Delaware) Charter or By-laws, (ii)
violate any provision of, or constitute, with or without notice or lapse of
time, a default under, or result in the creation or imposition of, any Lien on
any properties included in the Trust Property pursuant to the provisions of, any
indenture, mortgage, credit agreement, license or other agreement or instrument
to which the Bank or the Bank (Delaware) Trustee, as the case may be, is a party
or by which it is bound, or (iii) violate any law, governmental rule or
regulation of the United States or the State of Delaware, as the case may be,
governing the corporate, banking or



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trust powers of the Bank or the Bank (Delaware) (as appropriate in context) or
any order, judgment or decree applicable to the Bank or the Bank (Delaware);




     (e) neither the authorization, execution or delivery by the Bank or the
Bank (Delaware) of this Trust Agreement nor the consummation of any of the
transactions by the Bank or the Bank (Delaware) (as the case may be)
contemplated herein requires the consent or approval of, the giving of notice
to, the registration with or the taking of any other action with respect to any
governmental authority or agency under any existing Federal law governing the
corporate, banking or trust powers of the Bank or the Bank (Delaware), as
appropriate in context, under the laws of the United States or the State of
Delaware;



     (f) there are no proceedings pending or, to the best of each of the Bank’s
and the Bank’s (Delaware) knowledge, threatened against or affecting the Bank or
the Bank (Delaware) in any court or before any governmental authority, agency or
arbitration board or tribunal which, individually or in the aggregate, would
materially and adversely affect the Trust or would question the right, power and
authority of the Bank or the Bank (Delaware), as the case may be, to enter into
or perform its obligations as one of the Trustees under this Trust Agreement.


SECTION 7.2 REPRESENTATIONS AND WARRANTIES OF DEPOSITOR.




     The Depositor hereby represents and warrants for the benefit of the
Securityholders that:



     (a) the Trust Securities Certificates issued on behalf of the Trust have
been duly authorized and have been, duly and validly executed, issued and
delivered by the Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders will be entitled to the benefits of this Trust Agreement; and



     (b) there are no taxes, fees or other governmental charges payable by the
Trust (or the Trustees on behalf of the Trust) under the laws of the State of
Delaware or any political subdivision thereof in connection with the execution,
delivery and performance by the Bank, the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.



ARTICLE VIII




THE TRUSTEES


SECTION 8.1 CERTAIN DUTIES AND RESPONSIBILITIES.




     (a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
To the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities



32









 




relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee’s good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.




     (b) Except during the continuance of an Event of Default,




     (i) each of the Property Trustee, the Delaware Trustee and the
Administrative Trustees undertakes to perform such duties and only such
duties as are specifically set forth in this Trust Agreement, and no
implied covenants or obligations shall be read into this Trust Agreement
against any of the Property Trustee; and




     (ii) in the absence of bad faith on its part, the Property Trustee,
the Delaware Trustee and the Administrative Trustees may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to such Person
and conforming to the requirements of this ; but in the case of any such
certificates or opinions which by any provisions hereof are specifically
required to be furnished to any such Person, such Person shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Trust Agreement.



     (c) In case an Event of Default has occurred and is continuing, the
Property Trustee shall exercise such of the rights and powers vested in it by
this Trust Agreement, 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 own affairs.



     (d) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust 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 Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each Securityholder,
by its acceptance of a Trust 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 are not personally
liable to it for any amount distributable in respect of any Trust Security or
for any other liability in respect of any Trust Security. This Section 8.1(b)
does not limit the liability of the Trustees expressly set forth elsewhere in
this Trust Agreement or, in the case of the Property Trustee, in the Trust
Indenture Act.



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




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



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     (ii)
 the Property 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 a majority in Liquidation Amount of the
Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under this Trust
Agreement;




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




     (iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and




     (v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.


SECTION 8.2 NOTICES OF DEFAULTS AND PAYMENT DEFERRALS.




     Within ninety calendar days after the occurrence of any Event of Default or
Junior Debt Security Tax Event actually known to the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.8, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived.



     Within five Business Days after the receipt of notice of the Depositor’s
exercise of its right to defer the payment of interest on the Junior Debt
Securities pursuant to the Junior Indenture, the Administrative Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice of
such exercise to the Securityholders and the Property Trustee, unless such
exercise shall have been revoked.


SECTION 8.3 CERTAIN RIGHTS OF PROPERTY TRUSTEE.




     Subject to the provisions of Section VIII.1:



     (a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, 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 or presented by the proper party or parties;



34









 




(b) if, other than during the occurrence and continuance of an Event of
Default, (i) in performing its duties under this Trust Agreement, the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor and the Property Trustee shall be fully
protected in acting in accordance with such instructions; provided, however,
that if the Property Trustee does not receive such instructions of the Depositor
within ten Business Days after it has delivered such notice, or such reasonably
shorter period of time set forth in such notice (which to the extent practicable
shall not be less than two Business Days), it may, but shall be under no duty
to, take or refrain from taking such action not inconsistent with this Trust
Agreement as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no liability
except for its own bad faith, negligence or willful misconduct;




     (c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers’ Certificate;



     (d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers’ Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the Administrative
Trustees;



     (e) the Property 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 Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) 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 Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;



     (g) the Property Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;



35









 




(h) the Property 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 Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;




     (i) the Property 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, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;



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



     (k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.



     No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property 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 Property 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 Property Trustee shall be
construed to be a duty.


SECTION 8.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.




     The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness (except to the extent they are
incorporated into the Statement of Eligibility on Form T-1 provided by the
Property Trustee to Depositor in connection herewith). The Trustees shall not be
accountable for the use or application by the Depositor of the proceeds of the
Junior Debt Securities.


SECTION 8.5 MAY HOLD SECURITIES.




     Except as provided in the definition of the term “Outstanding” in Article
I, any Trustee or any other agent of any Trustee or the Trust, in its individual
or any other capacity, may become the owner or pledgee of Trust Securities and,
subject to Sections 8.8 and 8.13, may otherwise deal with the Trust with the
same rights it would have if it were not a Trustee or such other agent.



36









 




SECTION 8.6 COMPENSATION; INDEMNITY; FEES.




     The Depositor agrees:



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



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



     (c) to indemnify each of the Trustees or any predecessor Trustee for, and
to hold the Trustees harmless against, any loss, damage, claims, liability,
penalty or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of this Trust
Agreement, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of its
powers or duties hereunder.



     No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.6.



     The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the resignation or removal of any Trustee.


SECTION 8.7 CORPORATE PROPERTY TRUSTEE REQUIRED; ELIGIBILITY OF TRUSTEES.




     (a) There shall at all times be a Property Trustee hereunder. The Property
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Person
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Property Trustee
with respect to the Trust Securities shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.



     (b) There shall at all times be one or more Administrative Trustees
hereunder. Each Administrative Trustee shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
persons authorized to bind that entity.



     (c) There shall at all times be a Delaware Trustee. The Delaware Trustee
shall either be (i) a natural person who is at least 21 years of age and a
resident of the State of Delaware or (ii) a legal entity with its principal
place of business in the State of Delaware and that otherwise



37









 




meets the requirements of applicable Delaware law that shall act through one or
more persons authorized to bind such entity.



SECTION 8.8 CONFLICTING INTERESTS.




     If the Property Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Property Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Trust
Agreement. Subject to the foregoing, the Depositor and any Trustee may engage in
or possess an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders shall have no rights by virtue of this
Trust Agreement 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. Neither the
Depositor nor any 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 the
Depositor or any 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 Trustee may engage in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.


SECTION 8.9 CO-TRUSTEES AND SEPARATE TRUSTEE.




     Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as
co-trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case an Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment. Any co-trustee or
separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.



     Should any written instrument from the Depositor be required by any co-
trustee or separate trustee so appointed for more fully confirming to such co-
trustee or separate trustee



38









 




such property, title, right, or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Depositor.




     Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:



     (a) the Trust Securities shall be executed and delivered, and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee;



     (b) the rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such
co-trustee or separate trustee;



     (c) the Property Trustee at any time, by an instrument in writing executed
by it, with the written concurrence of the Depositor, may accept the resignation
of or remove any co-trustee or separate trustee appointed under this Section,
and, in case an Event of Default has occurred and is continuing, the Property
Trustee shall have power to accept the resignation of, or remove, any such
co-trustee or separate trustee without the concurrence of the Depositor; upon
the written request of the Property Trustee, the Depositor shall join with the
Property Trustee in the execution, delivery and performance of all instruments
and agreements necessary or proper to effectuate such resignation or removal;
and a successor to any co-trustee or separate trustee so resigned or removed may
be appointed in the manner provided in this Section;



     (d) no co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of the Property Trustee or any other trustee
hereunder;



     (e) the Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee; and



     (f) any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.


SECTION 8.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.




     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 Section 8.11.



     Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time with respect to the Trust Securities by giving written notice
thereof to the Securityholders.



39









 




If the instrument of acceptance by the successor Trustee required by Section
8.11 shall not have been delivered to the Relevant Trustee within 30 days after
the giving of such notice of resignation, the Relevant Trustee may petition, at
the expense of the Depositor, any court of competent jurisdiction for the
appointment of a successor Relevant Trustee with respect to the Trust
Securities.




     Unless an Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by Act of the Common Securityholder. If an
Event of Default shall have occurred and be continuing, the Property Trustee or
the Delaware Trustee, or both of them, may be removed at such time by Act of the
Holders of a majority in Liquidation Amount of the Outstanding Preferred
Securities, delivered to the Relevant Trustee (in its individual capacity and on
behalf of the Trust). An Administrative Trustee may be removed by the Common
Securityholder at any time.



     If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Event of Default shall have occurred and be continuing, the
Common Securityholder, by Act of the Common Securityholder delivered to the
retiring Trustee, shall promptly appoint a successor Trustee or Trustees with
respect to the Trust Securities and the Trust, and the retiring Trustee shall
comply with the applicable requirements of Section 8.11. If the Property Trustee
or the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the case
may be, at a time when an Event of Default shall have occurred and be
continuing, the Preferred Securityholders, by Act of the Securityholders of a
majority in Liquidation Amount of the Preferred Securities then Outstanding
delivered to the retiring Relevant Trustee, shall promptly appoint a successor
Relevant Trustee or Trustees with respect to the Trust Securities and the Trust,
and such successor Trustee shall comply with the applicable requirements of
Section 8.11.



     If an Administrative Trustee shall resign, be removed or become incapable
of acting as Administrative Trustee, regardless of whether an Event of Default
shall have occurred and be continuing, the Common Securityholder by Act of the
Common Securityholder delivered to the Administrative Trustee shall promptly
appoint a successor Administrative Trustee or Administrative Trustees with
respect to the Trust Securities and the Trust, and such successor Administrative
Trustee or Trustees shall comply with the applicable requirements of Section
8.11. If no successor Relevant Trustee with respect to the Trust Securities
shall have been so appointed by the Common Securityholder or the Preferred
Securityholders and accepted appointment in the manner required by Section 8.11,
any Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Relevant Trustee with respect to the Trust Securities.



     The Property Trustee shall give notice of each resignation and each removal
of a Trustee and each appointment of a successor Trustee to all Securityholders
in the manner provided in Section 10.8 and shall give notice to the Depositor.
Each notice shall include the name of the successor Relevant Trustee and the
address of its Corporate Trust Office if it is the Property Trustee.



40









 




Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee who is
a natural person dies or becomes, in the opinion of the Depositor, incompetent
or incapacitated, the vacancy created by such death, incompetence or incapacity
may be filled by (a) the unanimous act of remaining Administrative Trustees if
there are at least two of them or (b) otherwise by the Depositor (with the
successor in each case being a Person who satisfies the eligibility requirement
for Administrative Trustees set forth in Section 8.7).



SECTION 8.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.




     In case of the appointment hereunder of a successor Trustee such successor
Trustee so appointed shall execute, acknowledge and deliver to the Trust and to
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Depositor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee shall duly
assign, transfer and deliver to the successor Trustee all property and money
held by such retiring Property Trustee hereunder.



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



     Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.



41









 




No successor Relevant Trustee shall accept its appointment unless at the
time of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.



SECTION 8.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.




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


SECTION 8.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST DEPOSITOR OR TRUST.




     If and when the Property Trustee or the Delaware Trustee shall be or become
a creditor (whether directly or indirectly Secured or Unsecured) of the
Depositor or the Trust (or any other obligor upon the Junior Debt Securities or
the Trust Securities), the Property Trustee or the Delaware Trustee, as the case
may be, shall be subject to and shall take all actions necessary in order to
comply with the provisions of the Trust Indenture Act regarding the collection
of claims against the Depositor or Trust (or any such other obligor).


SECTION 8.14 REPORTS BY PROPERTY TRUSTEE.




     The Property Trustee shall transmit to Preferred Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto. If required by Section 313(a) of
the Trust Indenture Act, the Property Trustee shall, within 60 days after each
                     following the date of the Trust Agreement deliver to Holders a brief
report, dated as of                     , which complies with the provisions of such
Section 313(a).



     A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each stock exchange upon which
any Preferred Securities are then listed, with the Commission and with the
Trust. The Trust will promptly notify the Property Trustee when any Preferred
Securities are listed on any stock exchange.


SECTION 8.15 REPORTS TO THE PROPERTY TRUSTEE.




     The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.



42









 




SECTION 8.16 EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT.




     Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers’ Certificate.


SECTION 8.17 NUMBER OF TRUSTEES.




     (a) The number of Trustees shall be five, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees; provided, however, that there shall at all
times be at least one Administrative Trustee. The Property Trustee and the
Delaware Trustee may be the same Person if the Property Trustee meets the
applicable requirements.



     (b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.



     (c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul the
Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in
accordance with Section 8.10, the Administrative Trustees in office, regardless
of their number (and notwithstanding any other provision of this Agreement),
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this Trust
Agreement.


SECTION 8.18 DELEGATION OF POWER.




     (a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and



     (b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative 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 8.19 VOTING.




     Except as otherwise provided in this Trust Agreement, the consent or
approval of the Administrative Trustees shall require consent or approval by not
less than a majority of the Administrative Trustees, unless there are only two,
in which case both must consent.



43









 




ARTICLE IX




TERMINATION, LIQUIDATION AND MERGER



SECTION 9.1 TERMINATION UPON EXPIRATION DATE.




     Unless earlier terminated, the Trust shall automatically terminate on
                    , ___(the “Expiration Date”), following the distribution of the
Trust Property in accordance with Section 9.4.


SECTION 9.2 EARLY TERMINATION.




     The first to occur of any of the following events is an “Early Termination
Event”:



     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution,
liquidation or winding-up of, the Depositor;



     (b) the direction to the Property Trustee from the Depositor at any time
(which direction is optional and wholly within the discretion of the Depositor)
to terminate the Trust and distribute a Like Amount of Junior Debt Securities to
Securityholders of Trust Securities.



     (c) the redemption of all of the Trust Securities; and



     (d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.



     The direction of the Depositor pursuant to Section 9.2(b) shall be made in
writing by the Depositor and specify the date of distribution of the Junior Debt
Securities, which shall not be less than less than 30 days after the date of the
delivery of such direction.



     The election of the Depositor pursuant to Section 9.2(b) shall be made by
the Depositor giving written notice to the Trustees not less than 30 days prior
to the date of distribution of the Junior Debt Securities. Such notice shall
specify the date of distribution of the Junior Debt Securities and shall be
accompanied by an Opinion of Counsel that such event will not be a taxable event
to the Holders of the Preferred Securities for Federal income tax purposes.


SECTION 9.3 TERMINATION.




     The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.



44









 




SECTION 9.4 LIQUIDATION.




     (a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Junior Debt
Securities, subject to clause (d) below. Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder’s address appearing in the Securities Register. All
notices of liquidation shall:



          (i) state the Liquidation Date;




          (ii) state that from and after the Liquidation Date the Trust
Securities will no longer be deemed to be Outstanding and any Trust Securities
Certificates not surrendered for exchange will be deemed to represent a Like
Amount of Junior Debt Securities; and




          (iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Junior Debt Securities
or, if clause (d) below applies, receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.




     (b) In order to effect the liquidation of the Trust and distribution of the
Junior Debt Securities to Securityholders, the Property Trustee shall establish
a record date for such distribution (which shall be not more than 45 days prior
to the Liquidation Date) and, either itself acting as exchange agent or through
the appointment of a separate exchange agent, shall establish such procedures as
it shall deem appropriate to effect the distribution of Junior Debt Securities
in exchange for the Outstanding Trust Securities Certificates.



     (c) Except where Section 9.2(c) or clause (d) below applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) certificates representing a Like Amount of Junior Debt
Securities will be issued to holders of Trust Securities Certificates, upon
surrender of such certificates to the Administrative Trustees or their agent for
exchange, (iii) the Depositor shall use its commercially practicable efforts to
have the Junior Debt Securities listed on the New York Stock Exchange or on such
other exchange, interdealer quotation system or self-regulatory organization as
the Preferred Securities are then listed, if any, (iv) any Trust Securities
Certificates not so surrendered for exchange will be deemed to represent a Like
Amount of Junior Debt Securities, accruing interest at the rate provided for in
the Junior Debt Securities from the last Distribution Date on which a
Distribution was made on such Trust Securities Certificates until such
certificates are so surrendered (and until such certificates are so surrendered,
no payments of interest or principal will be made to Holders of Trust Securities
Certificates with respect to such Junior Debt Securities) and (v) all rights of
Securityholders holding Trust Securities will cease, except the right of such
Securityholders to receive Junior Debt Securities upon surrender of Trust
Securities Certificates.



     (d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise,



45









 




distribution of the Junior Debt Securities in the manner provided herein is
determined by the Property Trustee not to be practical, the Trust Property shall
be liquidated, and the Trust shall be dissolved, wound-up or terminated, by the
Property Trustee in such manner as the Property Trustee determines. In such
event, on the date of the dissolution, winding-up or other termination of the
Trust, Securityholders will be entitled to receive out of the assets of the
Trust available for distribution to Securityholders, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, an amount
equal to the Liquidation Amount per Trust Security plus accumulated and unpaid
Distributions thereon to the date of payment (such amount being the “Liquidation
Distribution”). If, upon any such dissolution, winding up or termination, 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, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). The holder of the Common Securities will be entitled
to receive the Liquidation Distribution upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities, and
no Liquidation Distribution shall be paid to the Holders of the Common
Securities unless and until receipt by all Holders of the Preferred Securities
of the entire Liquidation Distribution payable in respect thereof.



SECTION 9.5 MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE TRUST.




     The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other body,
except pursuant to this Section IX.5. At the request of the Depositor, with the
consent of only the Administrative Trustees and without the consent of the
Holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, the Trust may merge with or into, consolidate, amalgamate, 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) such successor entity either (a) expressly
assumes all of the obligations of the Trust with respect to the Preferred
Securities or (b) substitutes for the Preferred Securities other securities
having substantially the same terms as the Preferred Securities (the “Successor
Securities”) so long as the Successor Securities rank the same as the Preferred
Securities rank in priority with respect to Distributions and payments upon
liquidation, redemption and otherwise, (ii) the Depositor expressly appoints a
trustee of such successor entity possessing the same powers and duties as the
Property Trustee as the holder of the Junior Debt Securities, (iii) the
Successor Securities are listed or traded, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed or traded,
if any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded or placed under surveillance or review by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose identical to that of the
Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer



46









 




or lease, the Depositor has received an Opinion of Counsel 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 Preferred Securities (including any Successor Securities) in any
material respect, (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (c) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Trust (or any successor entity) will continue
to be classified as a grantor trust for United States Federal income tax
purposes and (viii) the Depositor owns all of the Common Securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, the Trust shall not, except with the consent of
Holders of 100% in Liquidation Amount of the Preferred 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 entity or permit any other entity 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 the successor entity to
be classified as other than a grantor trust for United States Federal income tax
purposes.




ARTICLE X




MISCELLANEOUS PROVISIONS


SECTION 10.1 LIMITATION OF RIGHTS OF SECURITYHOLDERS.




     The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.


SECTION 10.2 AMENDMENT.




     (a) This Trust Agreement may be amended from time to time by the Trustees
and the Depositor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that such action shall not adversely affect in any material respect the
interests of any Securityholder, and any amendments of this Trust Agreement
shall become effective when notice thereof is given to the Securityholders.



47









 




     (b) Except as provided in Section 6.1 and 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Depositor with (i)
the consent of Trust Securityholders representing a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
amendment will not affect the Trust’s status as a grantor trust for United
States Federal income tax purposes or the Trust’s exemption from status of an
investment company under the 1940 Act.




     (c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Article Six hereof), this Trust Agreement may
not be amended to (i) change the amount or timing of any Distribution on the
Trust Securities or otherwise adversely affect the amount of any Distribution
required to be made in respect of the Trust Securities as of a specified date,
(ii) change the redemption provisions of the Trust Securities, (iii) restrict
the right of a Securityholder to institute suit for the enforcement of any such
payment contemplated in (i) or (ii) above on or after such date, (iv) modify the
first sentence of Section 2.6 hereof, (v) authorize or issue any beneficial
interest in the Trust other than as contemplated by this Trust Agreement, (vi)
change the conditions precedent for the Depositor to elect to dissolve the Trust
and distribute the Debentures to Holders of the Trust Securities as set forth in
Section 9.2, or (vii) affect the limited liability of any Holder of Preferred
Securities; and notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 6.3 or 6.6 hereof), this paragraph (c) of this Section
10.2 may not be amended.



     (d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.



     (e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, the Property Trustee or the Delaware
Trustee (as the case may be), this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor, the Property
Trustee or the Delaware Trustee, respectively.



     (f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.



     (g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities under this Trust Agreement. The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers’ Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement.



48









 




SECTION 10.3 SEPARABILITY.




     In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.


SECTION 10.4 GOVERNING LAW.




     This Trust Agreement and the rights and obligations of each of the
Securityholders, the Trust and the Trustees with respect to this Trust Agreement
and the Trust Securities shall be construed in accordance with and governed by
the laws of the State of Delaware without regard to conflict of laws principles.


SECTION 10.5 PAYMENTS DUE ON NON-BUSINESS DAY.




     If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date [insert alternative floating rate
conversion, if applicable].


SECTION 10.6 SUCCESSORS.




     This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted under Article Eight of
the Junior Indenture and pursuant to which the assignee agrees in writing to
perform the Depositor’s obligations hereunder, the Depositor shall not assign
its obligations hereunder.


SECTION 10.7 HEADINGS.




     The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.


SECTION 10.8 REPORTS, NOTICES AND DEMANDS.




     Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder’s name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to CNA Financial
Corporation, 333 South Wabash Avenue, Chicago, Illinois 60604, Attention: _________, facsimile
no.: (312)                     . Any notice to Preferred Securityholders shall also be
given to such owners as have, within two years preceding the giving of such
notice, filed their names and addresses with the Property Trustee for that
purpose.



49









 




Such notice, demand or other communication to or upon a Securityholder shall be
deemed to have been sufficiently given or made, for all purposes, upon hand
delivery, mailing or transmission.




     Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee or the Administrative Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee to The
Bank of New York Mellon Trust Company, N.A., [insert address];
(b) with respect to the Delaware
Trustee, to BNY Mellon Trust of Delaware, [insert address]; and (c)
with respect to the Administrative Trustees, to them at the address above for
notices to the Depositor, marked “Attention Administrative Trustees of CNA
Financial Capital [I][II][III].” Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust
or the Property Trustee.



SECTION 10.9 TRUST INDENTURE ACT; CONFLICT WITH TRUST INDENTURE ACT.





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



     (b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.



     (c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.



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


SECTION 10.10 ACCEPTANCE OF TERMS OF TRUST AGREEMENT, GUARANTEE AND JUNIOR
INDENTURE.




     THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE JUNIOR INDENTURE, AND SHALL



50









 




CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT
THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.




	 	 	 	 	 
	 	CNA Financial Corporation,

as Depositor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	The
Bank of New York Mellon Trust Company, N.A., as Property Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BNY Mellon Trust of Delaware,

as Delaware Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	 	 
	 	
 	 
	 	D. Craig Mense, 	 
	 	as Administrative Trustee 	 
	 
	 	 	 
	 	
 	 
	 	Dennis R. Hemme, 	 
	 	as Administrative Trustee 	 
	 




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